PR v R.

A stay for abuse of process because evidence has been lost is an exceptional, last-resort remedy. The defendant bears the burden of showing, on the balance of probabilities, serious prejudice such that a fair trial cannot take place.

Accidental destruction of relevant records creates no presumption of unfairness. The court must distinguish speculation about what missing material might have shown from a significant and demonstrable chance that it would have produced decisive or strongly supportive evidence on a specific issue. It must assess the loss in the context of all surviving material and the trial as a whole. A clear judicial direction requiring the jury to take the resulting disadvantage into account will often preserve fairness.

PR v R concerned a conviction appeal following a 2018 trial at Cardiff Crown Court. The appellant was convicted of four offences contrary to section 1(1) of the Indecency with Children Act 1960, alleged to have been committed against his niece when she was six.

The original police investigation in 2002 included a video-recorded Achieving Best Evidence interview and a paper file. Water damage later led to destruction of the file and the recording was unavailable. Some contemporaneous records, the appellant’s 2002 interview, social-services material and a negative forensic report survived. The trial judge refused applications to stay the indictment for abuse of process, both before and after the prosecution evidence.

The central issue was whether the loss of the original material made a fair trial impossible.

1. Disposition. The Court dismissed the appeal. The judge had been entitled to refuse a stay and the appellant received a fair trial.
2. The governing inquiry. The accidental loss of material does not itself render a trial unfair. The defendant must establish, on the balance of probabilities, serious prejudice such that no fair trial can be held. A stay is exceptional and is available only where the ordinary trial process, including judicial directions, cannot adequately address the prejudice. The Court adopted the earlier guidance in R. (Ebrahim) v Feltham Magistrates’ Court [2001] 2 Cr App R 23, DPP v Fell [2013] EWHC 562 (Admin) and R v R.D. [2013] EWCA Crim 1592.
3. Assessment of missing evidence. The court must not speculate about what unavailable records or witnesses might have revealed. It must identify directly relevant missing evidence and ask whether there was a significant and demonstrable chance that it would have been decisive or strongly supportive on a particular issue. Its importance must then be assessed in the context of the whole case.
4. Directions. Where material has been lost, the jury should be told that the defendant may have been seriously disadvantaged by being unable to deploy it. They must take that disadvantage into account when deciding whether the prosecution has proved guilt so that they are sure. The direction given here was exemplary.
5. Application. Substantial surviving material enabled the defence to challenge the complainant’s reliability and credibility, including inconsistencies, the limited contemporary record, negative forensic material and evidence capable of bearing on her account. The unavailable material did not create prejudice incapable of being addressed at trial. The judge’s approach and directions ensured fairness.

• Court of Appeal (Criminal Division). The Court dismissed the conviction appeal in [2019] EWCA Crim 1225, upholding the refusal to stay the indictment for abuse of process.
• Crown Court at Cardiff. The appellant was convicted on 6 July 2018 of four counts contrary to section 1(1) of the Indecency with Children Act 1960. No citation for the Crown Court judgment was stated.