R v HGF

A stay of criminal proceedings for abuse of process remains an exceptional, last-resort remedy. Under the first limb, a stay may be justified where police fail to obtain evidence central to a disputed credibility issue, and its loss causes serious prejudice by removing the defendant’s primary means of challenging the allegation. The court must assess the prejudice caused by the missing evidence, rather than merely ask whether the remaining prosecution evidence could support a safe conviction. A jury direction cannot cure the unfairness if it would invite speculation about what the missing evidence might have shown. Each case turns on its own facts, and such cases are rare.

The respondent was charged with one count of sexual assault contrary to section 3 of the Sexual Offences Act 2003. Before a jury was sworn, the Crown Court at Harrow, sitting before Her Honour Judge Thompson, stayed the proceedings under section 58 of the Criminal Justice Act 2003. The judge concluded that the police had failed to obtain hotel CCTV which might have supported the defence account and that the failure made a fair trial impossible.

The prosecution gave the required acquittal undertaking and applied for leave to appeal. The Court granted leave on a rolled-up basis and heard the merits. The issues were whether the judge had applied the correct abuse of process principles, properly assessed the significance of the missing CCTV and remaining evidence, and whether a jury direction could cure the resulting prejudice.

The Court granted leave to appeal but dismissed the appeal, upholding the stay.

1. Appellate standard. Under section 58 of the Criminal Justice Act 2003, read with section 67, the ruling could be reversed only if it was wrong in law, involved an error of law or principle, or was not a reasonable ruling for the judge to make. The court applied the last-resort approach stated in R v Ng and O'Reilly ([2024] EWCA Crim 493). The two limbs of abuse are separate: impossibility of a fair trial, and conduct which affronts justice and propriety or undermines public confidence.
2. First limb and missing evidence. The respondent bore the burden of establishing unfairness on the balance of probabilities. The court adopted the three questions identified in R v Dobson ([2001] EWCA Crim 1606): the police duty, breach of that duty, and serious prejudice making a fair trial impossible. The police duty to obtain the CCTV was conceded. Their failure was a serious dereliction because the footage was central to a case turning on credibility. There was no independent evidence of what occurred in the bedroom, and the CCTV was the best independent evidence of the parties’ earlier interactions.
3. Nature of the prejudice. The court distinguished the question stated in R v Feltham Magistrates' Court, ex parte Ebrahim ([2001] EWHC (Admin) 130), namely whether sufficient credible evidence remained apart from the missing material to justify a safe conviction. The critical question here, applying Ali v Crown Prosecution Service ([2007] EWCA Crim 691), was whether the missing material was important evidence by which the complainant’s credibility could be assessed. The remaining prosecution evidence did not remove the serious prejudice caused by depriving the defence of its primary means of challenge.
4. Corrective directions and disposition. No adequate direction could avoid impermissible speculation about the contents of the CCTV. An inference that the respondent believed the footage would support him could assist only if that belief were correct, which the jury could not determine without speculating. The judge was therefore entitled to find that a fair trial was impossible. It was unnecessary to decide the second limb. The appeal was dismissed.

• Court of Appeal (Criminal Division) ([2026] EWCA Crim 570) granted leave on a rolled-up basis and dismissed the prosecution appeal.
• Crown Court at Harrow stayed the proceedings as an abuse of process under section 58 of the Criminal Justice Act 2003, holding that the respondent could not receive a fair trial.