Neutral Citation Number: [2008] EWHC 2788 (Admin)
Case No: CO/3608/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 14/11/2008

Before:

THE HONOURABLE MRS JUSTICE SLADE DBE
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Between:

	JAMIE MORRIS	Claimant	
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	THE DIRECTOR OF PUBLIC PROSECUTIONS	Defendant	
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(Transcript of the Handed Down Judgment of
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Nigel Ley (instructed by Byrne Frodsham & Co) for the Appellant
Caterina Gianota (instructed by CPS Merseyside) for the Respondent

Hearing date: 27th October 2008
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Judgment
The Honourable Mrs Justice Slade: 
1.	The Appellant, Jamie Morris, appeals by way of case stated from the dismissal on 9th November 2007 by the Crown Court at Liverpool (His Honour Judge Lyon and magistrates) of his appeal against conviction on 21st September 2006 of an offence of driving with excess alcohol in his blood contrary to Section 5(1)(a) of the Road Traffic Act 1988. The Crown Court refused to stay the prosecution as an abuse of process. It posed two questions for the opinion of this court: 
i)	‘Is there an automatic requirement on the prosecution to retain CCTV evidence in every case where it potentially records the administering of the statutory warning under section 7(7) of the Road Traffic Act 1988, whether or not the defence raise the giving of the warning as an issue before trial?
ii)	Was it unreasonable, in the Wednesbury sense, for us to have refused to allow the appeal on the grounds of abuse of process?’
In accordance with the Order of Mr Justice Collins dated 2nd July 2008, the draft statements of case of the Appellant and the Respondent have been considered together with the judgment of the Crown Court of 9th November 2007.
2.	Road Traffic Act 1988 Section 7(7) provides:
“A constable must, on requiring any person to provide a specimen in pursuance of this section, warn him that a failure to provide it may render him liable to prosecution.”
3.	It is common ground between the Appellant and the Respondent that the Road Traffic Act 1988 Section 7(7) requires that a warning of prosecution be given when requesting a specimen for analysis. This is mandatory and a failure to do so results in automatic acquittal as was held by the House of Lords in DPP v Jackson [1999] AC 406. In Murray v Director of Public Prosecutions [1993] RTR 209 the Divisional Court held that Section 7(7) did not confer any discretion on the trial court to admit evidence of test results even where no prejudice had been caused to a defendant by a failure to warn.
4.	Mr Ley on behalf of Mr Morris contended that the police had not given the statutory warning required by the Road Traffic Act Section 7(7) before he agreed to give a blood specimen. Therefore evidence from that sample was inadmissible and the prosecution must fail. 
5.	The issue giving rise to this appeal is whether the Crown Court erred in law in not staying the proceedings on the grounds of abuse of process in circumstances in which CCTV footage had not been disclosed and was no longer available. It was contended on behalf of Mr Morris that the CCTV footage, and, by inference, with an associated audio recording, may have assisted in determining whether the statutory warning had been given.
The Facts
6.	On 19th February 2006 Mr Morris was arrested for driving under the influence of alcohol. He was taken to Wirral police station. He subsequently claimed that he had not been given the Section 7(7) warning. It was not in dispute that form MG DD/B on which questions asked of Mr Morris and information given to him were recorded, was completed in the custody suite. The officer who completed the form gave evidence that the statutory warning had been given as is shown on the form. After the form had been completed Mr Morris gave a specimen of blood.
7.	After an analysis showed that the level of alcohol in Mr Morris’s blood exceeded the legal limit level, he was charged on 13th April 2006 with an offence under Section 5(1)(a). 
8.	On 26th April 2006 Mr Morris entered a not guilty plea before the Magistrates’ Court. On 15th June 2006 at a pre-trial review, the court was told that the issue at trial was a challenge to the statutory procedure and to the reliability of the analysis of the blood sample. No details were given of what was being challenged.
9.	At trial on 21st September 2006 before the district judge, the police officer, PC Andrew Dennis, who completed form MG DD/B on which was recorded the Section 7(7) warning, mentioned in cross-examination the existence of the custody suite CCTV.
10.	Inspector Michael Reid gave evidence in the Crown Court that the charging area is a large area with has a number of ports at which people are interviewed. Whilst it is covered by CCTV how many cameras there are and how they are positioned is not known. There is one single microphone covering the whole area. The Inspector indicated that it is set into the ceiling. The CCTV video tape was kept for three months. Thereafter, in the absence of anyone wanting to look at the tape, it was destroyed. (Crown Court Transcript page 3 para F to page 4 para A. References to this transcript will by page and paragraph letter only).
11.	A defence submission of abuse of process based on the failure of the prosecution to provide the custody suite CCTV evidence which, it was said by Mr Morris, may have assisted in determining whether the warning was given, was rejected. Mr Morris was convicted.
12.	On a re-hearing of the case before the Crown Court, Mr Ley, who also appeared for Mr Morris before this court, contended that it was an abuse of process for the trial to continue in circumstances in which the CCTV footage had not been disclosed to the defendant. He contended before this court as he did below that such material should have been disclosed. Because it may have provided evidence as to whether or not the Section 7(7) warning had been given, in the absence of its disclosure, Mr Morris could not receive a fair trial and the proceedings against him should have been stayed as an abuse of process.
13.	Miss Gianota who appeared for the prosecution as she did in the Crown Court contended as she did below that the Crown Court was entitled to proceed with the trial. She submits that there was no automatic duty to retain the custody suite CCTV unless it was requested or an issue to which it would be relevant had been raised by the defence. Prior to the trial in the lower court there was no indication that Mr Morris or his representatives considered the CCTV to be relevant material. Mr Morris could have a fair trial because in his case there was other evidence supporting a finding that a Section 7(7) warning had been given. 
14.	The Crown Court was referred to the Criminal Procedure and Investigations Act 1996 and the Code of Practice issued under Section 23(1). Amongst other authorities the Crown Court considered the cases of R v Lang [1999] EWCA Crim 986, R (on the application of Ebrahim) v Feltham Magistrates’ Court & Another; Mouat v Director of Public Prosecutions [2001] EWHC Admin 130 and Murray (Gary John James) v Director of Public Prosecutions (1993) Crim LR 968.
15.	The Crown Court made the following findings:
“In fact, the evidence in relation to the CCTV is fairly limited but appears to be as follows: we were told by the Inspector that the charging area is a large area which has a number of ports at which people are interviewed. It is covered by CCTV, although how many cameras and how they are positioned is not known. There is, apparently, one microphone which covers the whole area, which is set into, the officer gestured to the ceiling. There is no suggestion that there is a microphone at each of the ports of call at which the charging is done. The procedure that is followed in this area appears to be that the CCTV, which was in those days analogue CCTV preserved on video tape, was kept initially for 28 days, but subsequently, and through this period, apparently for three months. Thereafter, in the absence of anybody wanting to look at the tape, it was destroyed. That appears to be what has happened in this case, nobody having thought at the time that it was important to look at the tape or preserve the tape. There is no evidence that anybody looked at the tape to see whether or not it did, in fact, demonstrate any significant evidence in this case.” (p3 para F – p4 para C)
16.	The Court observed that ‘nobody, apparently, thought this video tape was significant or relevant at all.’ (p5 para E). The defence did not consider whether or not the video tape evidence was significant despite the fact that they had been involved in ‘a substantial number of such cases’. (p5 para A). It was in the course of cross-examination at the magistrates’ court that a police officer mentioned the existence of the CCTV. 
17.	The Court concluded that: 
 “It seems to us that it was not apparent or clear that this CCTV, which was there for, I have no doubt, keeping a general eye on the charging area of the police, that any of it was relevant. This may be a side matter, but it seems to us that it is highly unlikely that anything of significance, given the nature of the microphone, the size of the area and the general activity within that area, it is highly unlikely that the precise detail of what was said, and that is really the issue in this case, would be apparent from that particular piece of evidence.
That being so, we have to consider the general authorities, and we do consider the question of the case of Ebrahim, the significance of the missing evidence is, it seems to us, open to doubt. The requirement to preserve that evidence pending the outcome of the case seems to us to be in doubt, for the reasons we have already given.” (p6 para E – p7 para A)
18.	The Court considered whether Mr Morris could have a fair trial in light of the absence of the CCTV tape. It concluded that a fair trial was possible. There was therefore no abuse of process.
19.	The Court then considered afresh whether the prosecution had established that the procedure in asking the statutory question had been complied with and concluded that it had. 
20.	The Crown Court dismissed Mr Morris’s appeal.
The Questions Referred
Question (i) 
‘Is there an automatic requirement on the prosecution to retain CCTV evidence in every case where it potentially records the administering of the statutory warning under section 7(7) of the Road Traffic Act 1988, whether or not the defence raise the giving of the warning as an issue before trial?’
21.	Before me both counsel referred to the Attorney General’s Guidelines on Disclosure and to the Secretary of State’s Code of Practice prepared pursuant to Criminal Procedure and Investigations Act 1996 s.23. The Guidelines state:
“8. Disclosure refers to providing the defence with copies of, or access to, any material which might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused, and which has not previously been disclosed.
9. Prosecutors will only be expected to anticipate what material might weaken their case or strengthen the defence in the light of information available at the time of the disclosure decision, and this may include information revealed during questioning.
10. Generally, material which can reasonably be considered capable of undermining the prosecution case against the accused or assisting the defence case will include anything that tends to show a fact inconsistent with the elements of the case that must be proved by the prosecution.”
22.	Paragraph 3.5 of the Code of Practice provides:
“In conducting an investigation, the investigator should pursue all reasonable lines of enquiry, whether these point towards or away from the suspect. What is reasonable in each case will depend on the circumstances.”
23.	The duty to retain material includes material which may be relevant to the investigation including material casting doubt on the reliability of a prosecution witness (para 5.4). Such material must be retained at least until the accused is acquitted or convicted and the appeal process is exhausted (paras 5.7-5.10). 
24.	As for the common law position, Mr Ley relied upon the approval by the Court of Appeal in R v Ward [1993] 2 AER 577 at page 602 of the dictum of Lawton LJ in R v Hennessey (1978) 68 Crim App R 419, 426 that:
“Those who prepare and conduct prosecutions owe a duty to the courts to ensure that all relevant evidence of help to an accused is either led by them or made available to the defence…. The judges will ensure that the Crown gets no advantage from neglect of duty on the part of the prosecution.”
25.	Mr Ley did not suggest that there is a material difference between the common law and the Code as to the principles applicable to disclosure in this case.
26.	During the course of argument before me, Mr Ley submitted that where a defendant accepts that a Section 7(7) warning has been given or where there is independent evidence that CCTV footage would unarguably show that such a warning was given, there is no requirement to retain CCTV evidence. However, where a defendant disputes that a Section 7(7) warning has been given and CCTV evidence might assist in resolving the issue, the prosecutor has an obligation to disclose and the police to retain the CCTV tape. Miss Gianota agreed with those propositions. The difference between counsel lies in the middle ground which is relevant to consideration of the second question posed by the Crown Court.
27.	Mr Ley’s undoubtedly correct agreement that in certain cases there is no requirement on the prosecution to retain CCTV evidence where it might record the administering of the statutory warning under section 7(7) of the Road Traffic Act 1988 necessarily leads to his acceptance that the answer to the first question posed by the Crown Court for the opinion of this court is ‘No’ and I so find.
Question (ii)
‘Was it unreasonable, in the Wednesbury sense, for us to have refused to allow the appeal on the grounds of abuse of process?’
28.	Mr Ley submitted that where the defendant does not make his position clear on an issue which may possibly arise it is incumbent on the prosecutor to disclose and the police to retain CCTV material which might assist the defendant’s case. 
29.	It was not contended by Mr Ley that the CCTV footage would have to be retained whatever the circumstances. However he submitted that in the case of Mr Morris the issue to which it was potentially relevant was more than tangential or technical (Wareing v DPP [1990] RTR 188; Murray v DPP [1993] RTR 209). The question of whether there was an obligation under the Code to retain the CCTV footage depended on the circumstances.
30.	Mr Ley relied on Ward in support of the proposition that in this case there was an obligation to retain the CCTV tape.
31.	On behalf of Mr Morris he contended that the missing CCTV footage might have provided evidence as to whether the contested Section 7(7) warning had been given to him in respect of taking a blood specimen. 
32.	In the circumstances he contended that the CCTV footage should have been disclosed and retained and in its absence the prosecution was an abuse of process.
33.	Miss Gianota, referring to paragraph 9 of R v Feltham Magistrates’ Court ex parte Ebrahim; Mouat v Director of Public Prosecutions [2001] EWCA Admin 130 and what is now paragraph 3.5 of the Code, submitted that it would not be reasonable in such circumstances to require the disclosure and retention of material which there was no reason to suppose would be relevant to the proceedings. 
34.	Miss Gianota contended that there was no obligation on the police to retain the CCTV footage. She accepted that the CCTV footage had the potential to be relevant material attracting an obligation to disclose. However in the absence of being alerted by the defendant to a dispute to which it may be relevant there was no obligation to retain or disclose it in this case. 
35.	In the alternative, Miss Gianota contended that if there was such an obligation, it did not amount to an abuse of process to proceed with the prosecution. In support of that contention she relied on the fact that a police officer gave evidence that he gave Mr Morris the Section 7(7) warning and Mr Morris had the opportunity to give his account of whether the warning had been given. 
The Authorities
36.	Lord Justice Brooke giving the judgment of the Court in Ebrahim observed at paragraph 16 that in considering an abuse of process application on the basis that relevant material is no longer available, the court must first determine whether the prosecutor was under a duty to retain the material in issue. If it was under no such duty then there is no abuse of process merely because the material is no longer available. If on the other hand the prosecutor was in breach of duty, then the court will have to go on to consider whether it should take the exceptional course of staying the proceedings for abuse of process on that ground.
37.	The court outlined the two categories of case in which the power to stay proceedings for abuse of process may be invoked. These are (i) cases where the court concludes that the defendant cannot receive a fair trial and (ii) cases where it concludes that it would be unfair for the defendant to be tried. In the absence of bad faith or serious misbehaviour the court will consider whether the defendant cannot receive a fair trial.
38.	In R v Lang [1999] EWCA Crim 986, Mr Lang had been charged with an offence of dangerous driving. The issue was whether he had been driving dangerously. The Court of Appeal held that there had been a breach of the Code in destroying a tape recording of a radio message from the officer who had observed the defendant’s driving. The Court of Appeal held that on the facts of that case: 
“…there exists more than a fanciful chance that had this tape been available there would have been material contained on it upon which the appellant would properly have wished to cross-examine Mr Apperley. The matter is not marginal or tangential. The tape would have constituted a contemporary record of the words the officer spoke as he followed the appellant in the car.”
The appeal was allowed. However Laws LJ continued:
“We make it clear that nothing is to be inferred from this judgment to the effect that a breach of the mandatory requirements of paragraph 5.1 of the code will generally or even frequently give rise to a state of affairs in which it would be right to stop the prosecution: far from it. We have emphasised the particular specific features of this case however which, upon the facts here, do properly give rise to that result.”
39.	In R v Alibhai; Bakir; Collier; Dias [2004] EWCA Crim 681 the Court of Appeal accepted that for an abuse of process application to succeed: 
“….. in many cases it would suffice for an appellant to show a failure on the part of the prosecutor to meet disclosure obligations so that it is reasonable to suppose such failure might have affected the outcome of the trial. …That said, even where there has been a failure on the part of the prosecution to make disclosure, this court will not regard a conviction would not be regarded as unsafe if the non-disclosure can properly be said to be of ‘insignificance in regard to any real issue’.” (Longmore LJ, para 57)
40.	In Roberts v The Director of Public Prosecutions [2008] EWHC 643, the Divisional Court (Leveson LJ and Lloyd Jones J) considered a case in which the appellant disputed that the MG DD/A form used in a drink/driving case by a sergeant at a police station had been completed in his presence or that he had been warned as required under Section 7(7). The CCTV tape of the custody area was requested. However because of delay in reviewing the file, the tape no longer existed by the time the request came to the attention of the prosecutor. 
41.	A submission of abuse of process failed before the magistrates. Before the Divisional Court Mr Ley, who appeared for the appellant, relied upon Lang. Lord Justice Leveson observed: 
“9. Annexed to the papers is the 100 MG DD/A form and Mr Ley argues that the only way of circumventing the evidence of the officer would have been the CCTV. We do not accept that that analysis is accurate. Indeed, the form, which undoubtedly was signed by the appellant and was completed by the officer, contains extensively the precise questions to be asked and the order in which those questions must be asked. It was open to the Justices, having heard the sergeant, to accept that he performed his responsibilities accurately. Equally, it was open to the Justices to accept the evidence of the appellant that this task had not been done in the way the sergeant did it. Although the officer asserted that this procedure had been conducted in the custody area, if that material was not on the tape it would not have established that the procedure was not conducted properly, merely that it was not conducted in the place where it was believed to have been conducted. 
10. In my judgment, it was entirely open to the Justices to conclude that this prosecution was not an abuse of process and I would answer the question stated in the negative, i.e., it was not Wednesbury unreasonable to hold that there was no abuse of process when the video recording of the breathalyser procedure had deliberately and contrary to the code of practice and a defence request been reused. We do not accept that such a recording would necessarily conclusively have proved whether or not the correct procedure had been followed at the police station.”
The Divisional Court upheld the finding of the justices that the prosecution was not an abuse of process. The appeal was dismissed.
Discussion
42.	In this case, Mr Morris did not indicate before trial whether he accepted or contested that the Section 7(7) warning in issue had been given by the police. The case therefore falls within the middle ground as to which there are competing contentions by the parties as to the circumstances in which there is an obligation to retain and disclose material. 
43.	Miss Gianota accepted that the material in issue, the CCTV footage, had the potential to be relevant material attracting a duty to retain. It was material which may have assisted in determining whether the Section 7(7) warning had been given. However, she submitted that in this case the form itself and the evidence of the police officer demonstrated that the relevant warning had been given. The CCTV had not been requested by the defence or the prosecution otherwise put on notice that it might be required until cross-examination of the officer. In the circumstances it was not reasonable to conclude that a failure to retain the CCTV footage was unreasonable and therefore a breach of the Code.
44.	In my judgment the Crown Court was right to observe that the requirement to preserve the CCTV evidence was in doubt in this case. Even if there had been a breach of the Code in Mr Morris’s case that is not determinative of the question of whether it was unreasonable in the Wednesbury sense for the Crown Court to have refused to allow the appeal on the grounds of abuse of process.
45.	The question for me is whether no reasonable Crown Court correctly directing itself on the law and the evidence could have reached the conclusion that there was no abuse of process in continuing the trial of Mr Morris.
46.	The Crown Court considered it ‘highly unlikely’ that anything of significance would be apparent from the CCTV. In my judgment these words are not to be construed as those of a statute. They are to be read in context.  The issue on which it was said that a tape may assist is whether the Section 7(7) warning could be heard to have been given not whether anything could be seen. The Crown Court made material findings that there was one microphone in the ceiling of the custody area and no suggestion that there was a microphone at each of the ports of call at which the charging was done. It was open to the court to conclude that:
“… given the nature of the microphone, the size of the area and the general activity within that area, it is highly unlikely that the precise detail of what was said, and that is really the issue in this case, would be apparent from that particular piece of evidence.” (P6 para F)
47.	I do not accept Mr Ley’s contention that this case is materially indistinguishable from Lang. In that case it was apparent that the central if not the only issue in the case was whether Mr Lang had been driving dangerously. The tape could have assisted in determining this issue which was known to be disputed. In the case of Mr Morris it was not apparent nor were the prosecution put on notice that the giving of the Section 7(7) warning was to be challenged. Further it was known that a police officer who observed Mr Lang’s driving gave evidence that he contacted the police station with a radio message which related to Mr Lang. By contrast, in the case of Mr Morris there was considerable doubt as to whether any CCTV recording in the custody area would have picked up conversation between the officer and Mr Morris. 
48.	The Crown Court gave proper consideration to the appropriate question ‘can the Appellant have a fair trial in these particular circumstances?’ (Transcript p7B). It considered whether there was a requirement to preserve the CCTV evidence pending the outcome of the case. On the evidence before it the Crown Court observed ‘nobody, apparently, thought this video tape was relevant or significant at all.’ The Court was entitled to take into account the fact that the defendant’s legal advisors had been involved in a substantial number of such cases and that with all ‘of that experience and knowledge nobody thought this was a significant feature of the case until the cross-examination of the officer at trial.’ (p6 para B).
49.	In my judgment the Crown Court correctly directed itself in law. Further, applying the approach in Lang and Ebrahim, in my judgment it cannot be said that it was unreasonable, in the Wednesbury sense, for the Crown Court to have refused to allow the appeal on the ground of abuse of process.
50.	Accordingly the appeal is dismissed.