I was recently instructed in a case where our client was accused of causing serious injury by careless driving, after allegedly turning right at a ‘no right turn’ junction and colliding with a pedestrian. The client accepted that he had not seen the pedestrian until just before impact but was adamant that he had not turned right, indeed that was the opposite direction to his intended destination.
Prior to our attendance at the police station for interview, I had asked the police to disclose CCTV footage of the collision, which I was confident should exist given that the incident occurred at one of the busiest junctions of a Norfolk town. I was advised by the officer in the case that he had only just been allocated the case and as the collision had occurred five months earlier, the council CCTV would not be available as it was only retained for three months where no request for retention is made.
It appeared to me that the failure of the police to promptly and competently investigate the collision had caused evidence to be lost that may have assisted my client in disproving the allegations against them. I was of the view that that this amounted to an abuse of process as my client could no longer be afforded a fair trial due to this police failure and key evidence being unavailable.
The test in relation to whether a failure to investigate amounts to an abuse of process is that set out in R (Ebrahim) v Feltham Magistrates’ Court in that the court must determine whether a duty exists and then whether the unavailable evidence is such that the defendant cannot have a fair trial as a result of the prejudice caused. Paragraph 3.5 of the CPIA Code of Practice also requires that “the investigator should pursue all reasonable lines of inquiry, whether these point towards or away from the suspect.”
During my client’s PACE interview, I raised my concerns about the police investigation and the unfairness this had caused to my client, which the interviewing officer (to my surprise) agreed with.
Following the interview I made written representations to the police, fully setting out my concerns and alleging an abuse of process. I further submitted that in all the circumstances my client should not be prosecuted as there was insufficient reliable admissible evidence to provide a realistic prospect of conviction, and it was not in the public interest (application of Full Code Test). I also formally requested the audio recording of the interview and cited the interviewing officer’s agreement with our position.
To my client’s great relief, some weeks later he received confirmation that the police were not going to take any further action.
While there were some features distinct to this specific case, it does show that as defence lawyers we need not simply accept police failures (which are far from uncommon), and as part of our own investigation we should also be assessing the police investigation and identifying any deficiencies as – even where abuse of process is not made out – it might assist in mitigation.
A successful abuse of process application is difficult but it should always be in our thinking and where there are concerns, this case shows that there is clearly nothing to be lost in putting these to the interviewing officer, but don’t always expect them to agree!
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