Major, R. v

Investigative deficiencies justify a stay for abuse of process only where they cause serious, irreparable prejudice such that a fair trial cannot take place. Deficiencies which the trial process can fairly expose and assess do not meet that threshold.

The adequacy of a summing-up must be assessed as a whole. Where the judge fairly identifies the investigative failures and no specific prejudice is shown, the absence of a separate direction on potential prejudice will not render convictions unsafe. A case may properly be left to the jury where direct eyewitness evidence, if accepted, is capable of proving the injury alleged.

The appellant, a police officer, was retried in the Crown Court at Bradford and convicted of battery and assault occasioning actual bodily harm against a detained man. The prosecution relied principally on the evidence of PC Liston, who said that the appellant struck the complainant at Bridewell and that blows in a cell caused facial injury.

Before trial, an application to stay the proceedings for abuse of process had failed despite acknowledged deficiencies in the police investigation, including missing or inadequately reviewed CCTV material and defective custody records. The appellant appealed against conviction, contending that the proceedings should have been stayed, that the summing-up inadequately addressed prejudice from the investigation, that there was no case to answer on the actual bodily harm count, and that the judge mishandled an earlier inconsistent account by PC Liston. He also sought leave to appeal against sentence.

1. The appeal against conviction was dismissed. The renewed applications for leave on the further conviction grounds were also dismissed. The convictions were safe.

2. The shortcomings in the investigation did not approach the threshold for a stay as an abuse of process. Although the investigating officer had failed adequately to record or obtain relevant material, the judge had found neither bad faith nor an inability to conduct a fair trial. The unavailable CCTV material was unavailable to both sides. The later-discovered footage, which exposed false custody records, assisted rather than prejudiced the defence. The court therefore held that no irreparable prejudice had been shown.

3. The summing-up was fair when read as a whole. The trial judge had fully and fairly identified the defence criticisms of the investigation, including the missing CCTV evidence and recording failures. Although he did not give a separate direction on possible prejudice, no specific prejudice requiring such a direction had been identified. The jury could draw the necessary inferences from the deficiencies described, and the omission did not undermine the safety of the convictions.

4. There was plainly a case to answer on assault occasioning actual bodily harm. Medical evidence showed an injury to the complainant’s nose that would have caused immediate bleeding. PC Liston’s evidence, if accepted, was that the appellant delivered several blows to the complainant’s face immediately before bleeding began. That evidence was capable of proving causation.

5. The judge gave an adequate direction concerning PC Liston’s earlier account to Sergeant Smith. He identified the relevant inconsistency and summarised the evidence in sufficient detail. A further direction was unnecessary and could have unduly highlighted the part of the earlier account adverse to the appellant.

6. The application for leave to appeal against sentence was dismissed. Concurrent sentences of three months’ imprisonment for battery and 15 months’ imprisonment for assault occasioning actual bodily harm were not manifestly excessive for substantial violence by an officer against a drunken person in his custody.

• Court of Appeal (Criminal Division): In [2007] EWCA Crim 1910, dismissed the appeal against convictions entered after a retrial, dismissed the renewed applications for leave on further conviction grounds, and dismissed the application for leave to appeal against sentence.
• Crown Court at Bradford: At a retrial on 1 November 2006, convicted the appellant of battery and assault occasioning actual bodily harm, imposing concurrent terms of three and 15 months’ imprisonment.
• Crown Court: Her Honour Judge Sutcliffe refused an application to stay the proceedings as an abuse of process, finding investigative deficiencies but no bad faith and that a fair trial remained possible.