Environment Agency, R (on the application of) v Drake

A stay for abuse of process requires the defence to establish, on the balance of probabilities, serious prejudice such that a fair trial cannot take place. Loss or destruction of evidential material does not automatically satisfy that test. The court must consider whether there was a duty to obtain or retain the material, whether that duty was breached, and whether the absence of the material causes actual serious prejudice. Where pollution is directly observable and can be proved by photographs, video and eyewitness evidence, scientific samples may be merely corroborative. The prosecution may properly abandon reliance on such evidence, leaving the defendant to meet a reduced, not altered or more prejudicial, case. Speculation about possible assistance from missing material is insufficient.

The Environment Agency appealed by way of case stated against a decision of the District Judge sitting at Bodmin Magistrates’ Court. The District Judge had stayed two informations as an abuse of process after concluding that the defendant had suffered serious prejudice because water samples taken by the Agency had been lost or destroyed.

The charges concerned allegedly causing silt or suspended solids to enter controlled waters and removing a deposit from an inland waterway. The Agency had relied on video footage, photographs and eyewitness evidence, and had decided not to rely on scientific testing of the samples. The central issue was whether the loss of the samples made a fair trial impossible.

1. Appeal allowed. The District Judge’s ruling that there had been an abuse of process was quashed. The stay was lifted and the informations were directed to be retried before a differently constituted bench. There was no order for costs.
2. The correct approach was that the defence had to show, on the balance of probabilities, serious prejudice caused by the absence of the material, such that a fair trial could not take place. The court should first consider whether the investigating authority owed a duty to obtain or retain the material and whether that duty had been breached. An abuse decision was a considered judgment on the facts, rather than an exercise of discretion: