Dobson, R v [2001] EWCA Crim 1606

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
[2001] EWCA Crim 1606Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Tuesday 10 th July 2001
Between
Dobson, R v
Before
Lord Justice PotterMr Justice TomlinsonMr Justice McCombe
[1]On 3 rd August 2000 in the Crown Court at Reading before His Honour Judge Playford QC and a jury the appellant was convicted of one offence of arson with intent to endanger life (Count 1), no verdict being returned on an alternative count of arson (Count 2). On 29 th September 2000 he was sentenced to four years' imprisonment. He appeals against conviction by leave of the single judge, who granted leave on four of the five grounds of appeal advanced. He also renews his application for leave in respect of the fifth ground of appeal, namely that the judge erred in refusing to stay the proceedings on the application of the applicant on the grounds that there had been an abuse of process resulting from the failure of the police to obtain, view and disclose CCTV footage relevant to the appellant's defence of alibi. We indicated at the outset of the hearing on 8 th June 2001 that such leave was granted. Following argument on that day we dismissed the appeal stating that we would give our reasons later. They are as follows[2]The short facts were that on 7 th February 1999 at about 8.30pm a fire occurred at the front door of a flat at No. 13, Brunel Road, Maidenhead, which was the home of Miss Sandra Harmon and her boyfriend Mr Nicholas Aronica. The appellant was the occupant of the flat directly below; No. 9. At the time of the fire Mr Aronica was alone in the flat at No 13 and he managed to put the fire out without the attendance of the fire brigade. The prosecution case was that the appellant was the arsonist having been involved very shortly before the fire in an incident with Mr Aronica in which the latter had used violence. Immediately following the fire, Mr Aronica said he saw the appellant outside his flat. Two police officers, who attended the flat at about 9pm in response to a call from Mr Aronica, said they were let into the block of flats by a man outside the entrance who was wearing paint-stained jogging bottoms and who then let himself into the appellant's flat with a key. There was forensic evidence which indicated that the accelerant used to set the fire was white spirit and stains of white spirit were found on the appellant's jogging bottoms when they had been taken from him. The issue for the jury was whether the appellant had set the fire and was reckless as to whether the life of Mr Aronica would be endangered. The defence case was alibi. The appellant said that he was a painter and decorator and the white spirit found on his jogging bottoms had come there in the course of his work.[3]The evidence for the prosecution was as follows. Nicholas Aronica said he was taking his dogs out some time between 7pm and 8pm on 7 th February but decided to take them back into the flat when he heard the appellant's door open and saw him with his two English bull terriers. He decided to take his own dogs back in and bring them out later because they were intimidated by the appellant's dogs. As he walked away the appellant said "Next time you're having sex with Sandra Harmon, think about me". Mr Aronica said that he could not believe his ears and asked the appellant what he had said. The appellant repeated the remark together with other unpleasant remarks which Mr Aronica could not recollect. He said that, when the appellant came close, he realised the appellant was drunk. He told the appellant to stop talking about it and they could talk about it when he was sober. However, the appellant carried on, swaying towards him with his arms down. As Mr Aronica thought the appellant was coming at him, he headbutted the appellant who fell onto his backside. Mr Aronica saw blood coming from the appellant's nose. The appellant put his hands up in a gesture of surrender and asked Mr Aronica not to pick on the dogs, one of which had come at him and he had slapped it. Mr Aronica repeated they could talk when the appellant was sober. However, the appellant said he was going to put his dogs inside and would come up and talk to him. Mr Aronica walked back into his flat with the dogs and telephoned the police because he took the appellant's statement that he would be coming up as a threat. He also telephoned Sandra Harmon to let her know of the incident.[4]Within minutes he heard the dogs barking and saw flames coming through the cat-flap in the flat door. He heard the appellant's voice from outside his front door saying "See if you can come out now" or similar words. He heard banging on the door downstairs and thought it might be the police. He could see the image of a woman with long hair in a white top through the glass in the courtyard door but did not let her in, as it was not safe to do so. He went to the front of the hall to see if the police were there but no one was there. He opened the door and saw the appellant standing by the door to his (the appellant's) flat wielding a builder's hammer. The appellant held it up and said "Come on now, see if you can do anything now". Mr Aronica did not go up to him but saw a brick on the ground and picked it up, telling the appellant that unless he went back in he would throw it at him. However, the appellant did not go back in. Mr Aronica put the brick down and then saw a woman with blonde hair and a white top whom he recognised as the appellant's former wife. He asked her to get the appellant inside because he wanted to go upstairs and see to the animals. He then did so. A little later he could hear someone from the courtyard shouting "See how you like that". He stuck his head out and could see the appellant putting his jacket on by the courtyard and going down to the gate and the access road. He waited for the police. He stated that the appellant had on black tracksuit bottoms with paint on and a white T-shirt and trainers. In cross-examination, he accepted that the assertion that it was the appellant shouting in the courtyard was based partly on assumption. He denied he had made up the episode of the brick and said he had no reason to do so.[5]Mrs Mary Harmon , mother of Sandra Harmon, said that she had arrived at the flat sometime between 8.15pm and 8.30pm and could hear banging from the flat below. She later heard the voice of a man shouting from outside in the courtyard "Are you enjoying the fumes up there?" She also saw a figure outside at the front just walking around.[6]Sandra Harmon said she arrived home from Heathrow between 8.30pm and 9pm and, when she arrived, she could see the appellant and his former wife through the window of their flat sitting watching television. Having gone into her flat she heard the banging of doors from the appellant's flat and, looking out, saw the appellant from her living room on the grass in front of the flats swaying and looking as if he had a grin or smirk on his face. She thought he was drunk. She saw him a bit later when he shouted through the kitchen window something like "Choking on the fumes, are we?" About twenty minutes later the police arrived.[7]Kenneth Harmon , father of Sandra Harmon, who had arrived with his wife before Sandra's arrival also said that he heard a man talking to himself, apparently drunk outside the flat, who shouted "I hope you're enjoying the fumes up there". He did not see the man.[8]PC Campion and PC Newton who arrived at the flats in response to Mr Aronica's call said that, as they stood at the front door, a man came up behind them in jogging bottoms stained heavily with paint who was drunk, giggling like a child and slurring his speech. On being told by the policemen that they had had a call to No. 13, the man opened the door to the flats with a key and then went into No. 9, the officer going up to No. 13. After speaking to the occupants of No. 13 they kept watch on No. 9 and eventually obtained entry, only to find that by then there was nobody there.[9]Kenneth Amory was called as a witness from the council to say that there were a number of CCTV cameras between Brunel Close where the flats were situated and the Rose public house nearby. If (as the defendant asserted at later interview and in evidence) he had left the flats just after 8pm and followed the route of which he spoke, there was a strong possibility that he would have been caught on camera but it was uncertain whether he could be identified. It would depend on precisely where he was in relation to the camera, which side of the road and where the camera happened to be pointed at the time.[10]So far as forensic evidence was concerned, Mr Bell , a chemist, said that he examined the debris from around the door following the extinction of the fire. The accelerant used to get the fire going was white spirit. It was possible that the white spirit found on the appellant's clothing which had been submitted to him could have originated from white spirit which the appellant said he had used in his work on that day.[11]The appellant was arrested at 10.20pm on the night of the fire and cautioned. At interview next day he said that he was not present at the time the fire was set and gave an account which essentially corresponded with his account in evidence.[12]In his evidence the appellant stated that he had used white spirit in his work on the day before the fire. At about 3pm he was outside the Rose public house near the flat where he talked to a friend, went in to the public house to be joined by his wife and both his dogs, all staying there until 4.30pm. He drunk three to four pints plus some vodka and lemonade but was not drunk. He arrived home at 5 to 5.15pm. He put his tools away and his wife put on the chicken for supper. He sat down to watch television and read the mail taking out one of his dogs at 7.30pm. He accepted that there had been trouble with Mr Aronica. He said that he blamed himself for Mr Aronica having headbutted him, because of what he had said. He said there was no question of his nursing resentment or taking revenge. He returned inside to his flat to tell his wife that Mr Aronica had had a pop at him. His wife asked if he was all right. He had a wash and they sat down to their meal, cleared away and locked up. He went out of the backdoor to put some waste in one of the wheelies and pulled it to the gate in order to be ready for the dustmen on Monday. He left the flat just after `Heartbeat' started at 8pm. He said he was out of the house when the fire started and denied that the fire had anything to do with him. He said that nothing untoward had happened while he was in his flat and he left it locked up with everything switched off. He could offer no explanation for there having been a drunken person in paint-stained jogging bottoms who had let in the police and then been seen to enter No. 9 with his own key.[13]Mrs Phyllis Dobson . The appellant's former wife confirmed that account. She said that the appellant had put his steps and ladders in the cupboard and they had both left "just as Heartbeat started at 8pm". APPLICATION AND RULING ON ABUSE OF PROCESS[14]Prior to trial, on the 10 th July 2000, application was made to the judge to stay the proceedings for abuse of process. As already indicated the position was that in interview the appellant had informed the police of the route which he and his wife had taken on leaving (as he said) his flat at just after 8pm and going to the Rose public house for a drink. It was not in dispute that there were a number of CCTV cameras between Brunel Close and the public house and that the appellant might have appeared on one of the cameras situated along the route. In his interview on the day following the fire, the appellant was accompanied by and had the opportunity for advice from a solicitor. On that occasion, however, there was no mention by or discussion with the police of CCTV cameras or the assistance they might afford, it did not occur to the appellant, his solicitor (who was from a well-known and experienced local firm of solicitors), or the police that it would be sensible or appropriate to check the CCTV system.[15]The position in relation to CCTV cameras was as follows. The police had available to them facilities provided by the local authority for viewing CCTV footage within the authority control room. such footage could be made ready for police viewing within a short space of time. In the absence of any request for preservation it would be kept for between 7-31 days, depending on whether they were `real time' or `lapse time' videos, before they were overwritten. Under the Local Authorities' CCTV Code of Practice it was made clear that when Thames Valley Police had reasonable cause to believe that an incident had been recorded, they could ask the council for permission to view any recording of a specified incident on a monitor provided for the purpose. There were general police instructions in the Thames Valley Area with regard to CCTV footage which stated that investigation of crime for police-related incidents which occurred within an area of CCTV camera surveillance was the responsibility of the designated officer in the case. Those instructions included passages to the following effect; "We must also remember that "daily tapes" are only kept for a maximum of thirty-one days before being used again... ... having made a productive use of the CCTV System it is essential that any evidence gathered is properly prepared for presentation at court in order to maintain its admissibility. Remember best evidence is required by the court ... ... the police must bear in mind the occasions when we do not use CCTV evidence at all in the investigation but the defence feel that they want to view any potential video evidence. They will be made aware, at the outset, that daily tapes will only be retained for thirty-one days ... ... under Section 78 of PACE, the defence could ask the court for the proceedings to be discontinued if the accused has been unfairly denied an opportunity to prove a defence. This is why we must clear any video evidence even if we do not use that evidence."[16]Before the judge, Police Sergeant Strachan, the officer in charge of the case, confirmed that the possibility of investigating the tapes was simply overlooked. He frankly acknowledged that police should have checked the CCTV system, and could have done so while they waited for the forensic evidence results which took over one month to arrive. The CCTV tapes were overridden in accordance with the practice of the council and thus became useless as potential evidence at the latest after thirty-one days. It was submitted for the appellant that he would be denied a fair trial if the matter went before the jury, the prejudice caused by the absence of the tapes being incurable.[17]The judge considered the application on the basis of principles set out in R -v- Medway in which this court reviewed the principles applicable to applications of this kind where CCTV or video evidence has not been available at trial. He also had regard to the decision in Attorney-General's Reference (No.1 of 1990) [1992] QB 630 at 643G, in which it was made clear that the residual and discretionary power of any court to stay criminal proceedings as an abuse of process is one which ought only to be employed in exceptional circumstances. In this respect the judge observed:
"In this case, there is no doubt that they [the police] might well have gone and checked the CCTV and indeed, that is precisely what P.S. Strachan acknowledges that they should have done, but for my part, I cannot see that there is anything exceptional about the circumstances of this failure. As I say, one can always, or very often, point to certain areas that have not been adequately investigated and speculate as to the result of those investigations had they been made."
[18]In this connection, the judge took into account that there was no question of any maliciousness or bad faith on the part of the police and he rejected the submission of defence counsel that exceptional circumstances were constituted simply by the fact that there was no eye-witness to the crime, the evidence being `purely circumstantial'. The judge expressed himself satisfied that, despite the absence of the tapes, the appellant could have a fair trial. He stated:
"Quite apart from my inability to find that there is any exceptional circumstance in this case comparable to maliciousness or anything of that kind, I do think that the trial process itself is equipped to deal with this matter; the defence can raise before the jury the failure on the part of the police to do that which ought to have been done, their failure to check the system. They can, before the jury, be blamed for that and it can be said that if only they had done that, then the defendant would have been shown to be in the clear, but I see no reason why that argument cannot be put forward and appropriate direction given by reference to that evidence so that the loss of this evidence does no prejudice the defendant more than it has to. Of course, I accept that if it could be shown, and the burden is accepted by the defendant as being on him .... and the standard of proof is the balance of probabilities, and if it can be shown, of course, that the defendant was on the video, then that would be strong evidence in support of the defendant's alibi, but for the reasons that I have given that cannot ever be stated to be so. One is left with no more, in the end than, speculation. For those reasons, I refuse this application."
THE RENEWED APPLICATION[19]On 1 st August 2000, immediately before the commencement of the trial, defence counsel, who had been instructed at short notice in place of original counsel who had made the original application, sought an adjournment so that he could study a full record of the appellant's interview and make further application on the abuse of process point. The basis upon which he wished to renew the application to stay for abuse of process was the view expressed by the judge that the defendant's solicitors, who were an experienced local firm, could themselves have investigated, or at least raised, the issue of the CCTV cameras and instituted a process of examination of them. The submission of defence counsel was that the solicitor who sat in on the interview was only there, and was only remunerated under the legal aid scheme, to give advice in relation to the interview in the police station and was in no position to tell the police what to do. As a result it was said that the defendant did not have the opportunity or the `equality of arms' to go and investigate the case himself, given that legal aid would not cover the instruction of solicitors in any respect other than police station representation until the appellant had been charged. Counsel submitted that there was undue delay in charging the defendant in that he had not been charged for some six months and thus was without the services of a solicitor during that period to investigate matters on his behalf. He submitted that the police had sufficient information to charge the appellant within the period of thirty-one days before the CCTV films were re-used and that Article 6 of the European Convention of Human Rights was thereby breached in that the appellant lacked equality of arms by having free legal representation at the time when he should have had it and had thereby suffered prejudice which would render the trail unfair. The judge rejected the request for an adjournment and the renewed application insofar as it was made. He stated that the appellant had not been denied legal representation at interview at a stage when the matter could have been raised and that the appellant had available legal advice at that time. He did not specifically refer to, but he plainly rejected, the suggestion that the appellant should necessarily have been charged within the thirty-one day period and in any event made clear that in his view the issue was whether a fair trial was possible or that the appellant was likely to suffer injustice if it proceeded. In that respect, the judge refused to review the ruling he had already made. DISCUSSION AND RULING RE DIRECTIONS TO BE GIVEN IN THE SUMMING-UP[20]At the conclusion of the evidence on 2 nd August 2000 the judge properly invited observations from counsel upon the particular directions which they thought appropriate to the case. Both Crown and defence requested a Turnbull direction in respect of the various visual and voice identifications made by the witnesses and for an alibi direction. After considerable discussion as to the appropriateness of a Turnbull direction the judge stated that he would give such a direction in respect of visual identification. He would also give an alibi direction in the terms recommended by the Judicial Studies Board but that he would think overnight about the need for a Turnbull direction in respect of voice identification. On the following day, the judge gave his formal ruling. He set out various reservations he had upon the appropriateness of a Turnbull direction in relation to both various aspects of visual identification/recognition and voice recognition. Turning to the alibi direction, he again expressed reservations as to the utility, in the circumstances of the case, of the concluding phrase in that direction to the effect that the defendant might have concocted an alibi in order to bolster a genuine defence. However, having expressed such reservations he said that, as both counsel had urged him to give the full alibi direction and the full Turnbull direction as well he would do so `with whatever modifications may be appropriate to the facts of this case'. Defence counsel also requested the giving of a full Lucas direction, but the judge said that he would not do so unless defence counsel could suggest to him some innocent explanation for the appellant's lies which he could usefully and sensibly put before the jury. THE SUMMING-UP[21]In the course of his summing-up the judge gave a full and comprehensive Turnbull direction in respect of the purported identification/recognition by Mr Aronica and Miss Harmon in respect of the occasions when they purported to have seen the appellant or heard his voice without actually seeing him. He also gave the standard alibi direction recommended by the Judicial Studies Board, completing it as follows:
"... you should bear in mind that an alibi is sometimes invented to bolster a genuine defence. In this case a possible genuine defence might be that the defendant was present in his flat but nonetheless did not set the fire. Perceiving a weakness in his position he could give a false alibi to bolster his case but the fact of the false alibi in those circumstances would not of course mean that he is guilty. That is simply an example."
[22]On the question of the absence of CCTV tapes and the failure of the police to check the appellant's alibi by viewing them, the judge, having referred to the evidence of Mr Amory from the council said as follows:
"Perhaps it is a case where you say that they [the police] were open to criticism in this regard. But what effect can you properly give such a consideration? You are not here, members of the jury, to pass judgements on the police as to whether they might have thought of this sort of thing quicker or better or applied their minds to it. You are here to try the defendant according to the evidence. If I consider that the defendant cannot have a fair trial because of some irregularity, it is my duty to stop the trial or, if appropriate, have power to exclude evidence if it is improperly obtained or anything of that kind ... If you are satisfied on the evidence before you so that you are sure that the defendant set this fire, then he will not have been shown on any CCTV and you need not speculate about it. If you are not satisfied on all the evidence that the defendant set the fire, taking into account if you wish to do so the absence of any CCTV tapes, if you are not satisfied about it then you will find him not guilty. It is as simple as that. You will try this case on the evidence before you and return your verdict on the evidence before you. If you are not sure you acquit. If you are sure then you will convict."
GROUNDS OF APPEAL Abuse of Process[23]The principal ground of appeal argued before us has been that the judge erred in holding that there had not been an abuse of process by way of the police failure to obtain, view and disclose CCTV footage that went to the heart of the appellant's alibi. It is submitted that judge should have stayed the proceedings on that ground.[24]The issue of staying proceedings for abuse of process following the failure of the police to obtain video evidence has most recently been considered by this court in R -v- Feltham Magistrates Court ex parte Ebrahim Mouat -v- Director of Public Prosecutions : [2001] EWHC Admin 130 (21 st February 2001) a decision which was not available to the judge. In that case the court conducted a full review of the earlier authorities including those relied upon before the judge in this case. It was stated at paragraph 25 that:
"Two well-known principles are frequently invoked in this context when a court is invited to stay proceedings for abuse of process: (i) the ultimate objective of this discretionary power is to ensure that there should be a fair trail according to law, which involves fairness both to the defendant and the prosecution, because the fairness of a trial is not all one-sided; it requires that those who are undoubtedly guilty should be convicted as well as those about whose guilt there is any reasonable doubt should be acquitted. (ii) The trial process itself is equipped to deal with the bulk of complaints on which applications for a stay are founded."
[25]At paragraph 28 it is stated:
"In relation to this type of case Lord Lane CJ said in Attorney-General's Reference (No 1 of 1990) at p.664A-G that no stay should be imposed: "... unless the defence shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held; in other words that the continuance of the prosecution amounts to a misuse of process of the court."
[26]In the conclusion at paragraph 74, the court suggested that in similar cases in future, the court concerned with the application should structure its enquiries in the following way; "(1) In the circumstances of the particular case, what was the nature and extent of the investigating authorities' and the prosecutors' duty, if any, to obtain and/or retain the video tape evidence in question? Recourse should be had in this context to the contents of the 1997 Code [i.e. the Code of Practice published pursuant to sections 23 and 25 of the Criminal Procedure and Investigations Act 1996] and the Attorney-General's Guidelines. (2) If in all the circumstances there was no duty to obtain and/or retain that videotape evidence before the defence first sought its retention, then there can be no question of the subsequent trial being unfair on this ground. (3) If such evidence is not obtained and/or retained in breach of the obligation set out in the Code and/or the Guidelines, then the principles set out in paragraphs 25 and 28 of the judgment should generally be applied. (4) If the behaviour of the prosecution has been so very bad that it is not fair that the defendant should be tried, then the proceedings should be stayed on that ground. The test in paragraph 23 of this judgment is a useful one."[27]The test referred to at paragraph 23 is that:
"There has to be either an element of bad faith or at the very least some serious fault on the part of the police or the prosecution authorities for this ground of challenge to succeed."
[28]An associated ground of appeal advanced before us states that the judge erred in holding that the delay in charging had not prejudiced the appellant. It is asserted that the delay resulted in the appellant not being able adequately to prepare his defence, contrary to Articles 6(1) and 6(3) of the European Convention on Human Rights. The judge thus erred in not staying the proceedings on that ground. At the outset of the appeal, Mr O'Callaghan indicated that he did not consider that argument by reference to Article 6 of the Convention advanced the strength of the argument beyond that which could be put on principles of domestic law expounded in the authorities to which we have already referred and he limited his argument accordingly. In this respect, we would first observe that the judge did not hold in terms that the delay in charging had not prejudiced the appellant. He considered the delay in the context of the arguments advanced before him at the time, holding first that the police were not at fault in failing to charge the appellant immediately on the evidence then available to them at the time when the appellant had the benefit of the advice of a solicitor when interviewed at the police station; second, that by the time the police were reasonably in a position to charge the defendant the CCTV footage would have been erased in any event.[29]In both matters, it seems to us that the judge was correct. Mr O'Callaghan argues that the appellant should have been charged with the offence of arson on the basis of Mr Aronica's statement alone following his interview, as the evidence of Mr Aronica was clear that the appellant was the arsonist. He supports his argument on the basis of the clarity of Mr Aronica's statement identifying the defendant as the arsonist and secondly, upon the fact that the police later considered the evidence a sufficient basis upon which to charge the appellant after they had received forensic evidence which was inconclusive because of the appellant's occupation as a decorator, thus giving an innocent explanation for the presence of white spirit on his tracksuit bottoms. Reliance is placed upon PACE Code C: 16.1 which provides that:
"When an officer considers that there is sufficient evidence to prosecute a detained person, and that there is sufficient evidence for a prosecution to succeed, and that the person has said all that he wishes to say about the offence, he shall without delay ... bring him before the custody officer who shall then be responsible for considering whether or not he should be charged ..."
[30]That argument was aired briefly before the judge and he did not accept it. Nor do we. The case was of course a very strong circumstantial case on the statement of Mr Aronica, but he was not able directly to identify the appellant as the person who had set the fire in the sense that he was not an eye-witness to the fire setting. In interview the appellant denied setting the fire (as to which there was no other eye-witness) and advanced an alibi defence which the police were obliged to check. In fact the police wished to do three things before proceeding to charge the appellant,(1) to gather further witness evidence so far as available to corroborate the evidence of Aronica,(2) to obtain scientific evidence as to the mode of starting the fire as well as testing the appellant's clothing and(3) to check on the appellant's alibi. So far as (3) was concerned, they obtained a statement from the appellant's wife on the day following the interview of the appellant, but the scientific evidence was not available until 17 th June 1999. The adequacy of the evidence necessary before charging an appellant is essentially a matter for the judgement of the police and, in our view, there is no good ground for saying that the appellant should have been charged immediately, or for criticising the police in their decision not to do so. There does seem to have been considerable, indeed unusual, delay in obtaining the forensic evidence. However, there is no ground whatever for saying that it should have been obtained, and the appellant charged, within the thirty-one day period before the tapes would in any event have been eradicated.[31]That being so, the fact that the appellant was not charged at or shortly following the time of his interview, cannot in itself be cause for complaint or assertion that the police were at serious fault. However, the delay in charging is further relied on by Mr O'Callaghan as an explanation and support for his assertion that, by reason of events, the appellant was without the benefit of legal assistance following his interview or at any time during the period of up to thirty-one days when a specific request for investigation of the tapes might have been taken up by the police to the advantage of the appellant. That argument is part of the ground of appeal in relation to abuse of process.[32]The abuse of process relied on is the failure of the police to obtain, view and disclose CCTV footage which went to the heart of the appellant's alibi. In this respect, Mr O'Callaghan accepts that the burden was upon the appellant to show that, as a result of the delay, he would suffer serious prejudice to the extent that no fair trial could be held (see paragraph 25 above). He submits that, in the light of the admission of the officer in charge of the case that the police should have inspected the CCTV footage but failed to do so, coupled with the Thames Valley Guidelines quoted at paragraph 15 above, the appellant can establish that it was the duty of the investigating authorities to obtain and preserve the video tape evidence covering the period after 8pm when the appellant asserted that he was making his way to the public house nearby. He further submits that, as a result of such police failure, there can be no doubt that prejudice has been suffered by the appellant in that, if his evidence was true, there was a strong possibility, and indeed likelihood, that he would appear on the relevant CCTV footage, in which event his alibi would have been corroborated by evidence other than simply his wife's own statement. In this respect Mr O'Callaghan submits that the judge was wrong to observe, or place any weight upon the fact, that the appellant had legal advice available to him at the police station because the Green Form scheme limits the role of a solicitor to advice and assistance at the police station in respect of which there was a financial limit of £90 in 1999. That effectively prevented the appellant from having legal advice in the sense of any general consideration of his defence let alone legal representation which could start to investigate the matter and take an initiative for the examination of the CCTV footage on his behalf until he was charged six months later.[33]We consider, as the judge appears to have considered, that last point to be of dubious merit. It seems that the appellant and the local solicitor were, like the police, aware of the existence of the CCTV cameras. That being so, it would not have been a matter of any expense or difficulty for the solicitor to have given advice to the appellant in that respect, or for either of them, at or following the interview, to request the police to examine the film footage in order to check the version which the appellant was advancing. However, we consider the matter, on the basis that a degree of prejudice occurred by reason of the police failure.[34]That being so, in the light of the decision in R -v- Feltham Magistrates the following questions arise:(1) What was the duty of police in the circumstances?(2) Did the police fail in their duty in not obtaining and retaining the relevant video tape footage?(3) If so, was the prejudice suffered `serious prejudice to the extent that no fair trial could be held' in the light of such failure?(4) Separately from (3), did the police failure constitute such bad behaviour, in the sense of bad faith or serious fault, as to render it unfair that the defendant should be tried at all?[35]We consider that these questions can be answered shortly. (1)&(2) Given the acceptance by the police in evidence that the police should have looked at the CCTV footage, it is not necessary as suggested in R -v- Feltham Magistrates , to consider whether, in the light of the 1997 Code of Practice and the Attorney-General's Guidelines, the police were subject to, but failed to discharge, their duty in the particular circumstances of this case. We proceed on the basis that such failure could have been established.[36](3) Although there was plainly a degree of prejudice suffered in the sense that, assuming the defendant's alibi was genuine, he was deprived of the opportunity of checking the CCTV footage in the hope that it would support his case, we do not consider that such prejudice was `serious prejudice' given the uncertainty of the likelihood that it would assist, the fact that the defendant was, from the time of his interview onwards, equally in a position to appreciate the possible existence and significance of the tapes and to ask the police to look at them. He also had available his wife as a supporting alibi witness and the opportunity, following his interview, promptly to seek other supporting evidence for his alibi from the publican and patrons of the public house which was his `local'. In our view the judge was correct to hold that the prejudice was not serious and that a fair trial was possible upon the basis of the evidence available which the defendant had ample opportunity to consider and to meet.[37](4) Finally, like the judge, we consider that there was no question or suggestion of malice or intentional omission, as opposed to oversight, on the part of the police and therefore no element of bad faith or serious fault sufficient to render it unfair that the appellant should be tried at all. We find no error of reasoning on the part of the judge. We consider that he was correct to dismiss the suggestion of abuse of process and to hold that, despite the unavailability of CCTV tapes, a fair trial was possible. OTHER GROUNDS[38]There were additional grounds of appeal to the effect that the judge erred in law by giving inadequate and only partial directions upon the issues which arose in relation to identification and alibi, as well as lies to the jury. Those assertions were principally based upon the reading of counsel that, in the extensive discussions which were held between the judge and counsel as to the directions appropriately to be given in the circumstances of the particular case, the judge indicated that he would not be giving directions to the jury upon Turnbull in relation to voice recognition in that the case was one of recognition rather than of identification; nor did he think it necessary to give a full Lucas direction on the question of lies. However, close reading of what the judge said indicates that, while he maintained that such directions were inappropriate, he would give them because both counsel thought that he should. In the event, he did. Further, it seems clear to us that the directions he eventually gave were not susceptible to criticism as Mr O'Callaghan effectively acknowledged.[39]In those circumstances we have no doubt whatever about the safety of the conviction in what was a very strong case. The appeal is therefore dismissed.

Cited in 2 later judgments