The Director of Public Prosecutions v Sugden

The residual best evidence rule concerns the admissibility of documentary evidence. It does not govern whether a witness may refresh memory from a document which is not itself adduced in evidence. Under section 139(1) of the Criminal Justice Act 2003, a witness may refresh memory from either an original or a copy if the statutory requirements are met. A copy may be used where it is likely to be an accurate reflection of the original and the witness verified the original or copy when recollection was better. Any discrepancy or risk of discrepancy generally goes to cross-examination and weight. The court must still consider the circumstances in which the original is unavailable and any possible prejudice. A failure to produce the original does not, without more, justify refusing memory refreshment from a reliable copy.

The DPP appealed by case stated from the decision of a district judge at Stockport Magistrates’ Court. The judge had refused to allow a police officer to refresh his memory from a photocopy of a Form MG DD/A recording the respondent’s breath test and had subsequently acquitted the respondent of an excess alcohol offence under section 5(1) of the Road Traffic Act 1988.

The district judge treated the copy as subject to the best evidence rule and considered that the prosecution had not adequately explained the absence of the original. The questions for the Divisional Court were whether that approach was legally correct and whether, on the facts, the officer should have been permitted to refresh his memory from the copy.

1. The appeal was allowed. The acquittal was set aside and a retrial before a differently constituted magistrates’ court was directed.

2. The best evidence rule and the law permitting a witness to refresh memory are conceptually distinct. The former concerns admissibility of documentary evidence. A memory-refreshing document is not thereby adduced in evidence.

3. Section 139(1) of the Criminal Justice Act 2003 permits a witness giving oral evidence to refresh memory from a document made or verified earlier, provided the document records the witness’s recollection at that time and recollection was likely to have been significantly better then. The witness may use an original or a secondary document, including a copy, if the copy is likely to be an accurate reflection of the original and the witness verified the original or secondary document when recollection was better.

4. The absence of the original may require explanation, and the court may consider accuracy, probative value, prejudice and the risk of discrepancy. Those matters ordinarily affect cross-examination, submissions and weight. They do not justify exclusion where there is no specific reason to doubt the copy’s accuracy or to identify prejudice.

5. The district judge should have applied section 139(1), rather than treating the best evidence rule as the starting point. The copy was plainly derived from the missing original, and the defence had the opportunity to challenge its contents. The judge should have asked whether the officer had verified the original or copy and, subject to that inquiry, was likely to permit memory refreshment.

6. The use of electronic copies and the Digital Case System does not remove the obligation to comply with the law of evidence, nor does it make production of originals unnecessary where their particular characteristics matter.

• High Court (Administrative Court): The Divisional Court allowed the DPP’s appeal by case stated, set aside the acquittal and directed a retrial.
• Stockport Magistrates’ Court: The district judge refused permission for the police officer to refresh his memory from the copy Form MG DD/A and entered an acquittal after upholding a submission of no case to answer.