"There are a number of issues with the initial investigation which have cause [sic] significant delays in the process. After the report to police in October 2020, the investigation was allocated to DC 858 Weir. The defendant was not interviewed until12 February 2021 . Following this, the OIC made little progress before leaving the department in November 2022. Some statements were taken within this time period which are dated accordingly but not all were signed as explained in the statement of DC 1960 Hubbard on6 January 2025 . The initial OIC retained the investigation after moving to Cybercrime and did not progress the investigation in this department in any way before leaving the police in December 2023. DC 1960 Hubbard was then allocated the investigation on4 January 2024 . DC 858 Weir did not make any credible records of enquiries made by him outside of the enquiry log. He also appears to have misplaced the paper files linked to this case and digital copies have not been made of all notes. The notes made by VRI officers have not been retained, the notes by defendant interview officers have not been retained and it is unknown if any other paper files have not been retained. There is no trace of a case file with hard copies in police possession. There are issues with the statement provided by [X]. A statement was taken by police staff member, Vicky Church, who sent the completed statement to DC 858 Weir. However, the password for this was not saved anywhere and after it was recovered, it could not be accessed. [X] has stated he does not have the password and he is not willing to provide another statement at this time. He asked for no involvement in the case. Police digital investigators, IT services and digital forensics have all said there is likely no way to access a stand-alone password protected statement. The password cracking software used by digital forensics would have nothing to go on to crack the password so it is exceptionally unlikely the statement could be accessed."
"The only real issue between the parties is what [C]'s state and condition was when she left the party in the taxi with the [respondent] and whether she remained in that condition (if it was as the prosecution witnesses assert) back at her flat, whether this was sufficient that she could not and did not consent and that the [respondent] could have had no reasonable belief that she was consenting at any point."
"● Losing the entire paper file, including the signed witness statement of one out of a large number of witnesses in total, the content of which was never served and no-one now knows what the witness said (although I understand he may have said he had no memory of events). ● Failing to keep any notes of the video recorded interview of the complainant in a case where serious allegations of sexual offending were made against the defendant following the house party (although the VRI was played to the jury and a transcript provided to me); ● Not interviewing the defendant until February 2021, 11 months after the alleged offending (the complaint was made to police by [the complainant] in October 2020); ● Importantly, failing to adequately or at all to progress the investigation between mid 2021 until December 2023 when DC Weir left the police, a total of 30 months' inactivity. DC Weir had transferred to the Cybercrime Unit, but retained his OIC role in the investigation of this case. ● Failed at all to follow up or take statements from seven other witnesses who were at the house party. The replacement officer in the case, DC Hubbard, who was only appointed to this case in 2024 did attempt to follow up and take statements from these witnesses, but each refused to co-operate and give statements by reason of the passage of time that had passed, which meant that they could remember little if anything about the events of the house party and by extension as to the state and condition of the complainant. It is not therefore known what evidence had they been approached in a timely manner, they would have been able to give; ● Related to this, a witness statement was taken from [X] which was signed and electronically returned to one of the other original investigating officers. The statement was password protected. The password has been lost, [X] does not have it any longer and police efforts to crack the password and access the document have failed. It is not therefore known what [X] said in the statement and DC Weir nor any other officer have kept any notes relating thereto. He too has apparently refused now to 'support the investigation' according to the prosecution. The defendant has been in touch with this witness, who lives now in Australia, but given the passage of time I am told he does not wish to become involved. He is out of the jurisdiction so his attendance cannot in any event be compelled. The defendant was charged on8 July 2024 , around 51 months after the events of 13/14 March 2020 . Of that 51 month delay, 30 months arises as a direct result of the inactivity of DC Weir in failing to progress the investigation."
"Abuse of process may arise from many forms of misconduct, including delays between offence and trial. In this case it is not asserted that the misconduct was deliberate or mala fides, but encompasses both the non-availability to the defence of a large potential pool of witnesses, the existence of whom was not known for over four years by the defence, coupled with the loss of the paper files, one statement, the loss of the password to another statement and the seeming complete inaction on the file for 30 out of the 51 months between alleged offending and charge. These were, I conclude, matters when taken together, that amount to an abuse of process that have caused the defendant serious disadvantage, one that cannot be remedied by the only remaining option available were this application to have been refused, namely a strongly worded direction, because however the jury are warned against speculating about what the evidence might have said, the inevitability is the jury would be forced into speculation."
"24. The first category of case ... is founded on the recognition that all courts with criminal jurisdiction … have possessed a power to refuse to try a case, or to refuse to commit a defendant for trial, on the grounds of abuse of process, but only where it is clear that otherwise the defendant could not be fairly tried. An unfair trial would be an abuse of the court's process and a breach ofArticle 6 of the European Convention of Human Rights. In these cases the focus of attention is on the question whether a fair trial of the defendant can be had. 25. 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 fair trial 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 that 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 the complaints on which applications for a stay are founded. 26. We have derived the first of these principles from the judgment of Sir Roger Ormrod in R v Derby Crown Court ex parte Brooks at p.168 and the second from the judgment of Lord Lane CJ in Attorney-General's Reference (No 1 of 1990) at p.644B-C. The circumstances in which any court will be able to conclude, with sufficient reasons, that a trial of a defendant will inevitably be unfair are likely to be few and far between. … 27. It must be remembered that it is a commonplace in criminal trials for a defendant to rely on 'holes' in the prosecution case, for example a failure to take fingerprints or a failure to submit evidential material to forensic examination. If, in such a case, there is sufficient credible evidence, apart from the missing evidence, which, if believed would justify a safe conviction then a trial should proceed, leaving the defendant to seek to persuade the jury or magistrates not to convict because evidence which might otherwise have been available was not before the court through no fault of his."