Aylesbury Vale District Council v Khan & Ors

LORD JUSTICE SEDLEY: This is an appeal by Aylesbury Vale District Council, the prosecutor, by way of case stated, against the decision of Thames Valley Justices sitting at Aylesbury on 21st September 2004 to stay a set of informations as being an abuse of process.

In short these were charges brought against a number of cab drivers who held private hire vehicle licences, for plying for hire when they had no licence to do so.

The evidence against them had been obtained by council officers who approached the cabs in the street. But the intended corroborative evidence, in the form of closed circuit television film of the approaches made by the officers, had been wiped because of the negligent failure of the relevant council official to require it to be preserved.

It was the defendant's case that the film might well do more, or perhaps less, than corroborate the council's case. It might, it was argued, support a defendant's case that he was waiting to pick up a booked fare and thought that the council official was the passenger.

The justices, according to the case that they have now stated, concluded that:

It is plain that the council was in a perfectly good position to proceed on the evidence of the investigating officers and other material documentary evidence. They did not require the CCTV film in order to prove their case. If the film had been kept it would, of course, have been the council's duty to disclose it. If it had been deliberately wiped to conceal evidence inconsistent with the council's case that would be a clear instance of abuse, but nothing of the kind was suggested here.

This apart, they were, as it seems to me, under no independent obligation to furnish a CCTV film of their operation as part of their case. How they presented their case was a matter for them, and whether it would stand up was, in due course, to be a matter for the justices. The loss of film undoubtedly was a serious blunder from the council's own point of view, but I am unable to accept that it was, in any sense going to abuse of process, a fundamental flaw in the case presented to the court.

It is right that none of the defendants were warned at the time, in some cases indeed not for several weeks, that they were suspected of plying for hire in breach of the law. The difficulty of recalling the circumstances in which each driver had come to carry a particular passenger many weeks before was, we are told, canvassed by counsel for the defendants. But the justices, in the reasons which they gave in open court, a note of which has been annexed to the case stated, found expressly that this was not in itself a ground for finding abuse. They said:

While this does not grapple explicitly with questions of memory, it deals in the round with the application made on grounds of delay. Their decision to stay for abuse was based solely on the loss of the CCTV record.

These courts have had to consider more than once the principles on which failures of evidence-gathering by the prosecution can be held to have caused irremediable prejudice to the accused. For present purposes they can be found summarised in the judgment of this court (Brooke LJ and Morison J) in R v Feltham Magistrates' Court ex parteEbrahim, 21st February 2001: see in particular paragraph 74 of the judgment and the earlier paragraphs and materials there referred to. Here there cannot be said to have been any breach of the rules or guidelines governing the gathering of evidence. It follows, as the court said in Ebrahim, that absent some duty to obtain or retain the CCTV film there can have been no suggestion of the subsequent trial being unfair on this ground.

I turn aside, briefly, to mention one application that had been intimated to the court but was rightly not pursued by Mr Philip Rule for the respondents. It was an application that this court should refuse to hear this appeal on the ground that at the Magistrates' Court the local authority's counsel had stated that there would be no appeal.

There is no formal evidence to this effect before the court, and no doubt for that reason no formal evidence in response. What we have is a skeleton argument of counsel instructed for three of the defendants which sets out an account to this effect and the skeleton argument of counsel for another defendant confirming it. Neither says what is now said to us, that the statement was made in open court. While we have no reason at all to call counsel's recollection in question, this is not how evidence in support of a stay of proceedings in court should be given. It needs to be given by way of witness statements, and if the account is disputed counsel may have to come to the bar of the court to support their statements.

From the bar of this court Miss Messenger tells us that the allegation is not accepted as accurate. That is sufficient, as Mr Rule has rightly accepted, to put it beyond his reach to pursue the argument.

I return therefore to the substantive appeal. The question posed by the justices for the opinion of the High Court is this:

The justices have asked themselves the right question. The issue for us is whether they reached an admissible answer. The answer is not, as Mr Rule was disposed to suggest, an exercise of discretion. The answer had to be a considered judgment as to whether an abuse of process had been made out.

Mr Rule, in seeking to defend the justices' conclusion, has placed some reliance on section 78 of the Police and Criminal Evidence Act. This reliance, in my judgment, founders on the fact that section 78 is an exclusionary provision which has no bearing on a case such as the present which concerns not the introduction but the want of certain evidence.

The absence of the CCTV film was, in my judgment, not a legitimate foundation for the finding of abuse made by the justices. Either the evidence of the council officials would make the case against each defendant or it would not. In the absence of any suggestion that the film had been deliberately suppressed, the defendants had no special entitlement to rely on it. Asked by us what his position would have been if no CCTV film had ever been made of the operation, Mr Rule was not, as it seemed to me, able to give a cogent answer.

If the absence of such corroborative evidence turned out to jeopardise the prosecution's case, then they would have to live with the consequences of their own neglect. If the delay had, in the justices' view, been such as in itself to create unfairness, then no doubt the loss of the film would have robbed the council of one possible answer, although they would still be able to rely on the operators' obligation to keep logs of all their bookings. But it was not, in my judgment, open to the justices as a matter of law to treat as an abuse of process the election of the local authority to proceed to prove its case, if it could, without the CCTV film.

I would accordingly answer "no" to the question posed for our opinion. I would allow the council's appeal in consequence. It will follow that the proceedings before the Thames Valley Justices at Aylesbury are to continue.

MR JUSTICE PITCHERS: I agree.

MISS MESSENGER: I am grateful, my Lord.

LORD JUSTICE SEDLEY: Yes, Miss Messenger.

MISS MESSENGER: I would apply for costs in the matter. I am aware that the court may take a view that the Aylesbury Vale District Council is a public body and the respondents --

LORD JUSTICE SEDLEY: I do not think any court takes the view that the mere fact that a party is a public authority disables it from applying for costs. But you say it is the defendants rather than the justices who are responsible for what has happened?

MISS MESSENGER: I do indeed, my Lord.

LORD JUSTICE SEDLEY: Do you have six opponents in Mr Rule's hands?

MISS MESSENGER: Yes, my Lord.

LORD JUSTICE SEDLEY: Are any of them publicly funded?

MR RULE: All of them, my Lord.

LORD JUSTICE SEDLEY: They are all publicly funded?

MR RULE: Yes.

LORD JUSTICE SEDLEY: What is the situation then, Mr Rule, in this regard?

MR RULE: I have some details, my Lord, of income. They are, as one would expect -- I have in respect of one of them a profit and loss account for his business, his gross exceeds --

LORD JUSTICE SEDLEY: Just tell us this, was the public funding granted by this court?

MR RULE: Yes.

LORD JUSTICE SEDLEY: Is it to be means tested?

MR RULE: I have the grant document. They do not express any requirement for it to be means tested. If it is to be, on the face of the document it does not --

LORD JUSTICE SEDLEY: What is the system? Perhaps the associate can help about this. (Pause) I am afraid that this is a relatively new system with which certainly I am not entirely familiar, can you help about it Miss Messenger?

MISS MESSENGER: The Aylesbury Vale District Council would like to apply for their costs. May I just take instructions as to what sums we are talking about?

LORD JUSTICE SEDLEY: My inclination is that we should not shoot in the dark on this and that we should return to this later today when you and Mr Rule are in a position to give us the information we need. There are a number of things. First of all I think we will need to see the statutory power that has been exercised in order to grant public funding to the defendants. Secondly, we need to see any rules which govern the award of costs against such a defendant or respondent, and, in particular, we want to know whether the grant to them is means tested and if so what form the means testing takes. We also need to know, I think, thirdly, if there is any statutory presumption in the rules concerning the award of costs against a party that is publicly funded by the court.

MISS MESSENGER: My Lord, we will make those enquiries.

LORD JUSTICE SEDLEY: Would you do that? I think rather than put a time limit on it we will ask you to return to court when you have an answer and we will slot you in at the first convenient moment. Is that all right?

MR RULE: My Lord, I am grateful. Can I make the point, I believe this is covered by the Civil Procedure Rules and to that extent I have not been served with a schedule of costs. I do not believe the court in this sort of matter would have the jurisdiction to award costs to be assessed and for that reason alone we would --

LORD JUSTICE SEDLEY: You are saying that because Miss Messenger does not have her draft bill of costs in her hand, for summary assessment --

MR RULE: My Lord, (inaudible) Civil Procedure Rules, to my recollection, is that they would require --

LORD JUSTICE SEDLEY: This is a criminal causal matter, is it not?

MR RULE: I believe we are governed by the Civil Procedure Rules.

LORD JUSTICE SEDLEY: Will you gear up on that as well then, please?

MR RULE: I am grateful. My Lord, before my Lords rise from this matter, can I address one matter. I know there has been a decision to remit the case, but there has not been any argument on whether that remedy need necessarily to be granted by the court having found that the decision was wrong in law. I know that it does not follow, as a matter of simple course, as to whether my Lords are prepared to hear --

LORD JUSTICE SEDLEY: Mr Rule, first of all it is a surprising submission. Secondly, the time to make it is in the alternative in the course of your submissions before judgment. What possible reason is there for not remitting it when the stay has been inappropriately imposed?

MR RULE: My Lords made reference to the issue as to recollection within the time-frame of September.

LORD JUSTICE SEDLEY: You canvassed all this below.

MR RULE: Absolutely, my Lord, but the whole trial at this stage given the --

LORD JUSTICE SEDLEY: Not only was this canvassed below, and as I recorded in my judgment, dealt with by the justices, but I hope the justices will not be treated to a rerun of arguments they have already dealt with when it does go back.

MR RULE: Yes.

LORD JUSTICE SEDLEY: We will adjourn the application for costs until you are both in a position to help us. Thank you very much.