Morris v Director of Public Prosecutions

There is no automatic obligation to retain CCTV evidence in every case where it might record a statutory warning. The duty to retain and disclose depends on the circumstances and on whether the material may reasonably assist the defence or undermine the prosecution case. A breach of the disclosure Code does not automatically require a prosecution to be stayed. The court must separately consider whether the defendant can receive a fair trial or whether it would be unfair to try him. On judicial review of an abuse-of-process decision, the question is whether no reasonable court, correctly directing itself on the law and evidence, could have reached that conclusion.

Jamie Morris appealed by way of case stated against the Crown Court at Liverpool’s dismissal of his appeal against conviction for driving with excess alcohol in his blood, contrary to section 5(1)(a) of the Road Traffic Act 1988. He alleged that he had not received the warning required by section 7(7) before providing a blood specimen.

The custody-suite CCTV, which might have assisted in resolving that issue, had been destroyed after three months. The Crown Court held that a fair trial remained possible and that continuing the prosecution was not an abuse of process. The questions for the Administrative Court were whether retention was automatically required and whether that conclusion was unreasonable in the Wednesbury sense.

1. Question (i): no automatic retention duty. The answer was no. Section 7(7) of the Road Traffic Act 1988 makes the warning mandatory, and failure to give it results in acquittal. But the prosecution’s duty to retain material depends on the circumstances. The disclosure Guidelines and the Code require attention to material capable of undermining the prosecution case or assisting the defence, and require reasonable lines of enquiry to be pursued. They do not require every potentially relevant recording to be retained in every case.
2. Question (ii): abuse of process. Following the approach in R v Feltham Magistrates’ Court ex parte Ebrahim; Mouat v Director of Public Prosecutions [2001] EWHC Admin 130, the court first considers whether there was a duty to retain the material. If there was no duty, its disappearance does not itself establish abuse. Even where there was a breach, the court must consider whether the defendant can receive a fair trial or whether it would be unfair to try him.
3. The Crown Court was entitled to find that the CCTV’s evidential significance was doubtful. The single ceiling microphone, the size and activity of the area, and the absence of any indication before trial that the warning was disputed supported its conclusion that the precise conversation was unlikely to be captured. The case was materially different from R v Lang [1999] EWCA Crim 986, where the recording related directly to the known central issue.
4. The Crown Court correctly directed itself on the law and was entitled to consider the existing form and police evidence, together with the fact that the defence had not identified the CCTV as significant until cross-examination. It could reasonably conclude that a fair trial remained possible and that continuing the prosecution was not an abuse of process. The appeal was dismissed.

• High Court (Administrative Court): appeal by way of case stated dismissed. The court upheld the Crown Court’s conclusion that the prosecution was not an abuse of process.
• Crown Court at Liverpool: appeal against conviction dismissed on 9 November 2007; the court refused to stay the prosecution and referred two questions for the opinion of the High Court.
• Magistrates’ Court: Morris was convicted on 21 September 2006.