R. v B [2008] EWCA Crim 1144

Case No 200802227/D5[2008] EWCA Crim 1144
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 1st May 2008
Strand
London, WC2A 2LL
B e f o r e:
SIR IGOR JUDGE
(PRESIDENT OF THE QUEEN'S BENCH DIVISION)
MR JUSTICE AIKENS
MRS JUSTICE SWIFT DBE
Between
R E G I N ACrownv
Between
BPROSECUTION APPLICATION FOR LEAVE TO APPEAL TERMINATING RULING
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr T O'Dunohue appeared for ApplicantMr S Medland appeared for Crown
J U D G M E N T

SIR IGOR JUDGE: This is an appeal by the prosecution, under section 58 of the Criminal Justice Act 2003, against a terminating ruling by His Honour Judge Rogers QC, dated 23rd April 2000.

[2]The essential facts are not in dispute. The defendant is Robert Bill, a man aged 53. He was due to be tried by the judge and a jury in the Crown Court at Mold, listed to start on 23rd April 2008.[3]The indictment which Bill faced included two counts which had originally been placed on separate indictments but which had been joined after a full argument before the judge at an earlier hearing on 25th February. Both counts in the indictment alleged attempted abduction of a child. The first count alleged that this incident had occurred as long ago as 1st April 1995. The second count related to a similar offence, which was alleged to have occurred on 22nd June 2007.[4]The facts of the second count can be briefly summarised. As a trial will take place, we should say only the absolute minimum necessary to understand the nature of the allegation. On 22nd June a small child, 5 years old, at about 4.30 in afternoon had gone off to look for some little friends in a park. She was seen by her mother walking towards her home and as she walked there a dark colour Ford Estate car drove, as it is put in the written statements, suddenly onto the wrong side of the road and stopped adjacent to the pavement on which the little girl was walking, just a little ahead of her. So the normal continuation of her journey would have taken her past the car. The driver of the car was the defendant. He immediately left his car and opened a rear door, so that it looked as though the door was blocking the pavement and therefore the little girl's onward path towards home. She walked off the pavement around the car and then, quite by chance, she encountered an adult who was walking home as well. The adult saw the little girl talking to the defendant and the defendant talking to her, but because he is deaf, he could not hear what was being said. However he took the robust view that he should tell the little girl to get off home or get off down the road. The defendant then shut the open door and began to check his rear side tyre. The details need no further description. The Crown's case was that the defendant was behaving in this way in order to perpetrate the abduction of the little girl.[5]The defendant was arrested on 28th June. He said, when arrested, that he had not done anything, that it was nothing to do with him and he then was interviewed.[6]His case, as set out in the defence case statement, admits that he was the driver of the car at the time in question. The car had some problems with the braking system. He drove around. He did not know precisely where he was. He parked up in order to examine the braking problem. He accepts in the statement that children were about at the time, but that he had no recollection of speaking to the little girl.[7]We come now to the much earlier alleged incident which forms the basis of the allegation in count 1. A girl, then aged 10, was out of her home in a street in Rhyl at about 9.30 on an April evening looking for her younger brother. When she was two or three houses away from her own home, a car pulled up alongside her. There was a single male in the car. He spoke to her and asked for directions to the Sun Centre. She gave him those directions. He intimated that he could not understand what she was saying and so he asked her to show him using a map. He opened the rear door of the car on the passenger side and told her to get a map out of the car. She said that she could not see any map. According to her recent statement, she said:
"As I did this the male began pushing me from behind, trying to get me in the car. I don't remember screaming but I remember seeing two neighbours ... come running down the road towards me shouting. The male slammed the door shut, got in the car and drove off quickly."
She then gives a description of the male.[8]After this incident she went home and told her parents. The police were called. The police took her on a drive around Rhyl on a number of occasions in the following days to see whether she could see either the car or the driver of the car. She completed an E-Fit and she later went on to an identification parade. At that parade she did not pick out the defendant. She completed a video statement interview. Notes surrounding her complaint and the subsequent investigation were made by the investigating officer in his notebook. He conducted enquiries relating to cars, red Vauxhall Cavalier cars, with partial registration numbers consistent with that supplied to the police in North Wales, and he found one such car registered to the defendant. He went to the defendant's house. He noted in his notebook that there was what was described as a "remarkable likeness" of the E-Fit to the defendant. According to his statement:
"The image was akin to a photograph of the defendant, even down to the detail on his metal framed glasses."
In short this case was, or would have been a case of an identification case. Not to make too fine a point of it, the Crown is seeking to have the defendant tried in relation to count 1, in an identification case some 12 years after the purported identifications were made.[9]The defendant was charged in 1995. He made several appearances in the Magistrates' Court. Eventually, however, the prosecution discontinued the case against him. There was no trial. The charge was revived by a recharge. As to the allegation, in his defence case statement, the defendant says that he recalls being interviewed by the police and saying to them that he had stopped in Rhyl, at the seafront, to go for a walk and had parked his car in a side street. He then explains in the defence case statement how, on his return to vehicle he discovered that it had gone and so he had walked home, being given a lift for the purpose by a stranger. He claims that he tried to alert the police to the fact that his car was missing, but when he did so he found that the station was shut. He says that he received a phone call from a stranger, who told him that his car was in a car park at a local beach. The car was recovered by him without any damage and nothing was taken from it. He was able to procure the return of the car when his sister gave him a lift to it. He also describes in the statement how shortly before his arrest in 1995, he had shaved off his moustache and would assert that he had a moustache at the time of the alleged incident, in other words, he was calling into question the accuracy of the material relied on by the Crown.[10]On 25th February, at a pre-trial hearing, Judge Rogers considered submissions by the Crown in relation to joinder of a number of incidents alleged against the defendant, including in the two separate indictments, that are now counts 1 and 2 of the present indictment. He heard submissions in relation to abuse of process on behalf of the defendant. The defendant opposed joinder and effectively reserve his position on abuse of process until the Crown had fully and finally addressed defence requests for full disclosure. Judge Rogers ordered joinder. As things then stood, he concluded that abuse of process was not established but he made clear that the application could be renewed at a later stage. It is unnecessary for us to recite the reasoning which led the judge to this conclusion. His judgment does however end with his recognition of the fact that the decision he was then reaching was subject to the further consideration that the defence had sought further inquires, which were carefully set out in the material then before the judge, and he concluded:
"It may be that if the matters requested are not disclosed, then this ruling will have to be reconsidered. For the moment, I do not find that there is an abuse so far as that matter is concerned."
[11]So the case came for trial on 23rd February. The abuse of process argument was revived. In essence what it came to was that the disclosure process had confirmed that the prosecution file, in relation to the allegation in count 1, was no longer in existence. Having heard the argument the judge concluded that the defendant could not receive a fair trial on count 1 and he ruled accordingly. It is against that ruling that the Crown seek to appeal.[12]In appealing the Crown is inviting us to reverse the ruling of a highly respected and experienced criminal judge. The relevant legislation enables us to do so, provided we are satisfied that the ruling was a ruling that it was not reasonable for the judge to have made. That is a reference to section 67(c) of the 2003 Act.[13]The ruling is a short one, and none the worse for that. The judge was concerned about three matters. First, that there was no video or transcript of the complainant's account made at the relevant time, that is to say, when she was the victim of this incident in 1995. As the judge put it, that made it virtually impossible for the defence to challenge her evidence and in particular her evidence as to the identity of the vehicle alleged to have been driven by the defendant. Second, the E-Fit prepared by the complainant was no longer available for the consideration of the jury. The judge recorded that the Crown proposed to lead evidence from the investigating officer who saw both the E-Fit and the defendant, so that he could indicate the similarities that he found between the E-Fit and the defendant. The judge doubted whether that would be admissible evidence in any event. Finally, the judge noted that the original interviews of the defendant in 1995 were not and would not be available, and he pointed out that that would mean that he could not invite the jury to consider the consistency of his replies or indeed his detailed answers when he was faced with the allegation. The judge was aware of some other problems. He recognised that the defence contended that there was an alibi witness who could no longer be called, but he took the view that that of itself, or in combination with the other matters would not be a ground for staying this count. In short, this illustrations that the judge was seeking to balance a number of different considerations before he reached his decision. It is not suggested in this appeal that he misdirected himself about any relevant considerations. The judge's ruling, in the end, in brief, was that the absence of material evidence meant that the defendant would be irremediably prejudiced.[14]The argument is that the decision was simply wrong: there was no abuse of process in the sense that the defendant had been the subject of misconduct by anyone responsible for the prosecution or indeed any police officer who had been involved in the investigation. The conduct which led to the destruction of the relevant documents was entirely in accordance with appropriate procedure in a case which was now a very old one.[15]The essential submission that we have had had to consider is that there is, according to the contention by the Crown, evidence which strongly suggests that the appellant was guilty of the offence. For example, there is the link between his car and the partial registration number recorded at the time. There is his admitted presence in the area at the crucial time. There is what the Crown would say is a nonsensical explanation of the fact that his car was taken away. All that may be true but, in relation to the strength of the Crown's case, it must be set against the fact that it was decided in 1995, when the evidence was fresh, that the prosecution should not continue.[16]The reality is that some critical evidence is missing. This includes the original video interview of the complainant, which would have included her description of the man who was seeking to abduct her. His interviews under also caution are missing. They set out his contemporaneous response to the charge. The E-Fit prepared at the time by the complainant is not available. The documents which relate to the identification parade, where the complainant did not identify the defendant, have gone.[17]It is contended by the defence that possibly, indeed, there was more than one witness who attended the identification parade. That would be consistent with the fact that, from the complainant's point of view, it was fortunate that an adult came by and told her to go home. If there were such witnesses, they were unable to make the identification of the defendant and nothing of what they said is available: no description and nothing consistent with either side's case can be derived from it. There is also a suggestion that there may have been a witness or witnesses who purported to record the partial index number of the relevant car, whose identity is no longer known. Those last two points perhaps are less important than the ones on which the judge focused.[18]We remind ourselves, as the judge no doubt had clearly in mind, that the issue in relation to count 1 is identity, an identification of a man who was alleged to have committed an offence 12 years ago. There are, as is well-known, troubles enough with identification cases when all the evidence is relatively recent and remains available. Many abuse of process arguments, up and down the land in the Crown Court, are ill-founded and unjustified, but this argument was not. The submissions on each side were examined by an experienced judge. He exercised his discretion or (as we prefer to put it) he made his judgment that the proceedings should be stopped on the basis that a fair trial could not take place. There is, in truth, no possible basis for interfering with that judgment. Our only area of disagreement with Judge Rogers is that he gave the prosecution leave to appeal.[19]When the judge has exercised his discretion or made his judgment for the purposes of and in the course of a criminal trial, the very fact that he has had carefully to balance conflicting considerations will almost inevitably mean that he might reasonably have reached a different, or the opposite conclusion to the one he did reach. Leave to appeal under section 67 of the 2003 Act will not be given by this court unless it is seriously arguable, not that the discretionary jurisdiction might have been exercised differently, but that it was unreasonable for it to have been exercised in the way that it was. No trial judge should exercise his discretion in a way which he personally believes may be unreasonable. That is not to say that he will necessarily find every such decision easy. But the mere fact that the judge could reasonably have reached the opposite conclusion to the one he reached, and that he acknowledges that there were valid arguments which might have caused him to do so, does not begin to provide a basis for a successful appeal, whether, as in the circumstances here, by the prosecution or, when it arises, by the defendant. Accordingly, this appeal will be dismissed.[20]We shall confirm the ruling made by Judge Rogers and order that the defendant shall be acquitted of count 1 on the indictment.

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