Crown Prosecution Service v TR & Anor

A voluntary bill following dismissal of Crown Court charges may be granted where the case falls within an exceptional category recognised in the applicable guidance, including newly available evidence or an exceptional prosecution mistake. The fact that the prosecution could, with due diligence, have produced the evidence at the original hearing is highly relevant but is not necessarily determinative. The court must apply the overriding objective and decide whether the interests of justice require the charges to be revived. Relevant considerations include the seriousness of the allegations, the significance and reliability of the new material, the reason for its earlier omission, delay, and any real prejudice to the accused. Awareness of the material and its continuing availability may substantially reduce the prejudice caused by revival.

The Crown Prosecution Service applied for a voluntary bill after charges against TR and PW had been dismissed by the Crown Court on an uncontested defence application. The prosecution had possessed CCTV footage from the respondents’ home addresses, but a series of administrative and investigative errors meant that it was not known to counsel or the CPS when the application to dismiss was not resisted.

The footage was subsequently located and was said to identify the respondents and materially strengthen the prosecution case. The respondents accepted knowledge of the footage but relied on the delay, the fact that enquiries into possible defences had ceased after dismissal, and the principle that evidence which could have been produced earlier weighs against granting a voluntary bill. The central issue was whether, notwithstanding the prosecution’s failure to use the evidence at the original hearing, the overriding objective and the interests of justice required the charges to be revived.

1. Application granted. The court granted a voluntary bill in respect of the dismissed charges.
2. The relevant question was whether the application satisfied the overriding objective and whether it was in the interests of justice to grant the bill. The guidance quoted from Archbold identified, among other circumstances, evidence which had not been available at the dismissal hearing and exceptional circumstances, including correction of a prosecution mistake or a change of position. The power was to be used sparingly, particularly where changes to the prosecution case had caused real prejudice.
3. The case involved a combination of those circumstances. The CCTV was evidence in the case which could have been put before the Crown Court, but would have been used had the prosecuting authorities not made the relevant human errors. Its availability would not necessarily have determined the dismissal application, but it would have caused the prosecution’s response to be contested before the judge.
4. The respondents suffered a disadvantage because charges they believed had been dismissed were being pursued. However, the allegations were very serious, the CCTV was preserved, and the case did not depend on fading witness recollection. The respondents had known of the footage and had been preparing to rebut it, including in connection with its potential use as bad character evidence in other proceedings. Those circumstances meant that revival did not cause undue prejudice.
5. The court noted, obiter, the need for better case-management arrangements where the officer responsible for a prosecution becomes unavailable, so that outstanding material and commitments are communicated to the replacement officer.

The judgment describes an earlier uncontested application in the Crown Court at which the charges were dismissed. This was not an appeal against that decision. The CPS instead applied to the High Court for a voluntary bill.