Director of Public Prosecutions v Cooper

A missing or compromised evidential item does not necessarily make a criminal trial an abuse of process. The court must ask whether the trial process can fairly address the disadvantage caused to the defence. Where the defendant retains adequate means to challenge the prosecution evidence, the tribunal may take the evidential deficiency into account when assessing guilt. In an appropriate case, a judicial direction or equivalent allowance may fairly compensate for the lost opportunity to inspect or test evidence. A stay is therefore exceptional where the remaining evidence can be fairly evaluated by the tribunal.

The Director of Public Prosecutions appealed by way of case stated against the decision of the Lincolnshire Magistrates sitting at Grantham on 22 March 2007. The magistrates had stayed proceedings against Martin Cooper as an abuse of process.

Mr Cooper faced charges of possessing diamorphine and criminal property. The prosecution’s expert had tested bank notes for heroin contamination, but the notes had been treated with ninhydrin, preventing independent testing, and a video recording of the testing process had been lost. The central question was whether those failures made a fair trial impossible.

1. The appeal was allowed. The magistrates answered the case-stated question incorrectly. The proceedings should not have been stayed.
2. The starting point was the guidance in R v Feltham Magistrates' Court, ex parte Mohammed Rafiq Ebrahim and Director of Public Prosecutions [2001] 1 All ER 831. The objective of the abuse-of-process jurisdiction is a fair trial according to law, fairness being owed both to the defendant and the prosecution. The trial process is ordinarily equipped to deal with deficiencies in the prosecution case.
3. The loss of the video and the inability to conduct independent testing impeded the defence in challenging the expert evidence. They did not, however, remove all effective means of challenge. The expert could still be questioned about her testing method and conclusions.
4. The magistrates could also make proper allowance for the fact that the defendant had been unable to view the testing process or conduct his own tests. In a jury trial, the judge could direct the jury to treat that disadvantage as an important factor in the defendant’s favour. Magistrates, as experienced judicial fact-finders, could approach the matter in the same sensible way.
5. The issue concerning any future application under the Police and Criminal Evidence Act was outside the case stated and was expressly left open.

• High Court (Administrative Court): On an appeal by way of case stated, the court answered in the negative the question whether the magistrates were correct to stay the proceedings.
• Grantham Magistrates' Court: On 22 March 2007, the magistrates stayed the prosecution as an abuse of process because the lost video and ninhydrin testing prevented what they considered to be a fair trial.