There had been no need for the prosecution to retain until trial large items of furniture as evidence in an arson case after examination had suggested no practical need to incur the expense or make available space for its preservation, and no request for preservation had been received.Appeal against conviction with leave of the single judge. The appellant ('P') had been convicted of arson, in that without lawful excuse she damaged by fire a bed, bedding, fixtures and fittings of the guest house in which she was staying, being reckless as to whether the lives of various named occupants were endangered and was sentenced to five years' imprisonment. P had been in the room when the fire started but there was a dispute as to whether she had started the fire deliberately or as a result of lighting a cigarette in bed. The prosecution alleged that the seat of the fire was on top of the bed. The remains of the bed and mattress were removed to the yard outside where they were photographed, but were not preserved. The sole ground of appeal related to the refusal of the judge to accede to an application made by the defence prior to the commencement of the trial for a stay of proceedings on the grounds of abuse of process, because of the prosecution's failure to preserve evidence of the mattress and bed or, in the face of such failure, to take detailed photographs of the scene, so as to enable an expert for the defence to examine the evidence with a view to challenging or establishing the cause of the fire. P argued that Home Office guidelines, ie Fire Service Circular No.21/2000 and Home Office Circular No.44/2000, pertaining to these kinds of fires had been largely ignored and also relied on the Code of Practice published pursuant to ss.23 and 25 Criminal Procedure and Investigations Act 1996. The judge, in reliance on R v (1) Feltham Magistrates Court (2) Director of Public Prosecutions, ex parte Ebrahim (2001) EWHC Admin 130, concluded that: (i) he had very real doubts as to whether there had been any duty to do more than that which happened; (ii) even if there had been such a duty, P could not show on balance that she would suffer serious prejudice as a result of the destruction of the bedding or the failure to keep the fire scene intact, such that no fair trial could be held or that, in that sense, the continuance of the prosecution amounted to a misuse of the process of the court; (iii) there was no question of abuse of process arising from misbehaviour or absence of good faith on the part of the police; and (iv) having had regard to the reality of the situation in the particular case, the provisions of s.78 Police and Criminal Evidence Act 1984 did not require him to exclude the evidence of the prosecution as to the cause of the fire.HELD: (1) There had been no error in the judge's appreciation of the facts or application of the principles in Ebrahim (supra). (2) There had been no suggestion of bad faith. (3) A degree of flexibility had to be allowed in the application of the guidelines as to the practical need to retain until trial a large burned-out item of that kind after examination had suggested no practical need to incur the expense or make available space for its preservation, and no request for preservation had been received. (4) No real prejudice had been suffered. The judge had been entitled to conclude that a fair trial could take place without prejudice to the appellant, in the light of her opportunity, as the only eye witness, to give her version of events. In the eventual absence of her testimony, the jury had been entitled to reach their verdict on the evidence before them.Appeal dismissed.

[2002] EWCA Crim 90

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