Lost and Destroyed Evidence: The Search for a Principled Approach to Abuse of Process

Abstract

This article examines the situation where evidence which the police were under a duty to obtain or retain, and which could have assisted the defendant's case at trial, is lost or destroyed. Its particular focus is the approach that should be followed when lost or destroyed evidence forms the basis for an application to stay proceedings as an abuse of process. The decision in R (on the application of Ebrahim) v Feltham Magistrates' Court; Mouat v DPP was a significant advance in this regard, for it clarified that the two categories of abuse case—cases where the defendant cannot receive a fair trial (Category 1) and cases where it would be unfair for the defendant to be tried (Category 2)—are analytically distinct, from which it follows that the defendant's right to a fair trial can be violated in the absence of any bad faith on the part of the police. An examination of the cases post- Ebrahim, however, reveals the same regrettable tendency that was evident in the pre- Ebrahim cases, namely a tendency to use the absence of bad faith as a justification for not staying the proceedings in a Category 1 case. On a more principled approach, it is the effects of the conduct of the police with which the court should be primarily concerned when considering whether the defendant can receive a fair trial, and the nature of this conduct which should be the focus when determining whether it would be unfair for the defendant to be tried.