Altaf v Crown Prosecution Service, West Midlands

A breach of the right to determination within a reasonable time under article 6(1) does not itself require a stay. A conviction should be quashed where delay has made the hearing unfair, or made it unfair to try the defendant.

Lost material will not ordinarily prevent a fair trial if credible evidence independent of the loss remains and effective trial safeguards can cure the prejudice. However, where missing material bears directly on the credibility of essential witnesses, and a jury direction cannot give a coherent and fair means of allowing for the loss, the cumulative prejudice may render the verdict unsafe.

The appellants were convicted at Birmingham Crown Court of offences including false imprisonment, rape and aiding and abetting rape arising from events in 1995. One appellant was initially arrested in 1997 but was not rearrested until 2004; the other was arrested in 2004. The trial took place in 2006.

The trial judge found the earlier delay unjustified and contrary to article 6, but refused to stay the proceedings for abuse of process. During the delay, material had been destroyed, including one complainant’s Criminal Injuries Compensation Authority application and a police officer’s notebook. The central issue was whether the resulting loss and the directions given at trial made the convictions unsafe.

1. Appeals allowed. The convictions of both appellants were unsafe and were quashed.

2. Applying Attorney General’s Reference (No. 2 of 2001) [2003] UKHL 68, a breach of article 6(1) of the European Convention on Human Rights does not automatically require a stay. Following conviction, the question is whether the hearing proved unfair or it was unfair to try the defendant at all. In general, an unfair hearing entails an unsafe verdict.

3. The loss of evidence through delay does not by itself compel a stay or make a conviction unsafe. Trial safeguards may alleviate prejudice where there is sufficiently credible evidence independent of the missing material. The present case was different because the missing material was itself relevant to the credibility of a complainant whose evidence the jury had to assess.

4. The missing compensation application was potentially important because the other complainant’s application contained admitted falsehoods. The judge’s direction told the jury not to speculate about the missing application, while also inviting them to consider whether its loss disadvantaged the defence. That did not provide a clear and workable safeguard. A direction assuming that the missing application was equally false would itself have been speculative and unfair to the complainant.

5. The court considered the cumulative effect of that loss, the inadequate evidence about how the initial complaints were made, the lost notebook, and other missing material. Although there was medical support for parts of the complainants’ accounts and the jury had rejected consent, the jury might have treated one complainant’s evidence as supporting the other. The prejudice could not be cured by directions. This was a rare case in which delay made a fair trial impossible; all guilty verdicts against Altaf and Ali were therefore quashed.

• Court of Appeal (Criminal Division) Allowed the appeals and quashed all convictions against the two appellants because delay had made a fair trial impossible.
• Birmingham Crown Court The trial judge refused applications to stay the proceedings for abuse of process, notwithstanding an unjustified breach of article 6 rights, and the jury convicted the appellants on the relevant counts.