Regina v ANP

A stay for category 1 abuse of process is available only where the accused shows, on the balance of probabilities, that a fair trial is impossible. It is an exceptional remedy of last resort and does not punish investigative failings.

Where evidence has been lost, the court must assess its significance in the particular case, the evidence that remains, and the actual prejudice to the defence. The possibility that missing material might have assisted one side does not itself make a trial unfair. A properly directed jury can try the available evidence while taking any disadvantage caused by the loss into account when deciding whether guilt has been proved.

The prosecution sought leave under Criminal Justice Act 2003 to appeal a Crown Court ruling which had stayed a rape and sexual-assault indictment as an abuse of process. Samples, swabs and underwear taken after the alleged offences had been lost before analysis. Other material, including CCTV, witness evidence and one scientific result, remained available.

The trial judge held that the losses created an evidential vacuum and made a fair trial impossible. The prosecution contended that the judge had not adequately considered the remaining evidence and the ability of jury directions to cure any prejudice. The central issue was whether the loss of potentially relevant evidence made a fair trial impossible.

1. The prosecution’s appeal was allowed. The court granted leave, reversed the stay and refused the application to stay the indictment. The trial was to proceed before a different judge.

2. There are two categories of abuse of process: impossibility of a fair trial and circumstances in which a trial would offend justice and propriety. This was a category 1 case. D bore the burden of proving, on the balance of probabilities, that a fair trial was impossible. A stay is exceptional and is not a sanction for police failures.

3. Loss of evidence requires a case-specific assessment. The court must distinguish speculation about what missing material might have shown from a significant and demonstrable possibility of decisive or strongly supportive evidence on a defined issue. It must consider the importance of the loss in the context of all the evidence, the prejudice actually caused, and whether directions can adequately address that prejudice.

4. The trial judge erred in treating the loss as creating an evidential vacuum. Although material which should have been preserved was missing, there remained the complainant’s evidence, CCTV, evidence from those who saw or spoke to her shortly afterwards, and evidence which D could give or call. The results of any unperformed analysis were unknown and might have assisted either party or neither. The prosecution’s continuing burden of proof was a material protection for D.

5. The judge also erred in treating the potential relevance of missing evidence to issues for the jury as inevitably producing irremediable unfairness. The jury should be directed to decide the case only on the evidence, without speculation. They should also be directed that the loss of relevant material may have put D at a disadvantage and that this must be considered when deciding whether the prosecution has made them sure of guilt.

• Court of Appeal (Criminal Division) — In [2022] EWCA Crim 1111, allowed the prosecution’s appeal under Criminal Justice Act 2003, reversed the stay and refused the abuse-of-process application.
• Crown Court — The trial judge stayed the indictment on the basis that the loss of evidential material made a fair trial impossible.