Case against women accused of ‘threatening and abusive behaviour’ dropped after police destroyed CCTV evidence
Two women accused of behaving in a “threatening or abusive manner likely to cause a reasonable person to suffer fear or alarm” have had the case against them dropped after CCTV footage of the alleged incident was destroyed.
A sheriff upheld a challenge to the effect that the destruction of the evidence “prevented a fair trial from being possible” in terms of article 6 of the European Convention on Human Rights (ECHR).
Sheriff James Macdonald heard that Claire McIntosh and Janet McIntosh were charged on a summary complaint at Alloa Sheriff Court which alleged that they spat and gesticulated in a threatening and abusive manner, contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, but at an intermediate diet ahead of the trial scheduled for March 2018 they each lodged compatibility minutes challenging the legality of the proceedings.
The court was told that both minutes were cautioned and charged by the police on 30 July 2017, some 12 days after the date of the alleged offence, before appearing in court on police undertakings the following month, when they pled not guilty.
There were two civilian Crown witnesses, each of whom was anticipated by the prosecutors to be able to give evidence as to the commission of the offence by the minuters, as well as two police officers who were listed as Crown witnesses.
Following the tendering of not guilty pleas, the solicitors for the minuters submitted a request to the Crown that CCTV images from the locus be retained.
The police routinely request that footage be retained and copied for evidential purposes, but if no such request is made the system’s contents are overwritten every 30 days.
In this case a re-scheduling of the first calling date of the complaint took the proceedings to beyond the normal 30-day deadline for retention of the CCTV.
A request had been made to the police by the procurator fiscal depute to retain the CCTV, but the court was told that the request was not complied with due to “staff shortages and absences” and the evidence was destroyed, meaning it was unavailable for inspection by the solicitors acting for the minuters and further, that it could not be used in evidence at the trial diet.
However, the police officers stated that they had viewed the CCTV and one of the officers who was precognosed stated that the footage showed neither spiting nor gesticulating on the part of either minuter.
At the hearing of the compatibility minutes on 14 March 2018, there was no suggestion that there had been any deliberate destruction of the evidence, but it was submitted on behalf of the minuters that the evidence would have been capable of “undermining” the credibility and reliability of the civilian Crown witnesses, and so was “exculpatory”.
The missing CCTV evidence caused actual “prejudice” to the preparation of and conduct of, the minuters’ defence.
It was argued that in electing to prosecute the minuters, the Lord Advocate was acting in contravention of section 6 of the Human Right Act 1998 (HRA) and the minuters were therefore seeking to end the proceedings on the basis of the alleged infringement of their right to a fair trial under article 6 ECHR.
The Crown accepted that the interpretation of the CCTV footage by the police officers was not supportive of either specification in the libel, but it was submitted that they could simply rely on the evidence of the two civilian witnesses - meaning there would be “sufficient evidence” to convict both accused as libelled.
Further, it was open to the defence to call the police officers as witnesses as to what they saw on the CCTV and their interpretation of it, which would permit “adequate testing” of the evidence of the civilian Crown witnesses.
The Crown submission was that only after all the evidence had been led at trial could any view be properly taken as to the fairness of the proceedings as a whole and it would be open to the minuters to renew their challenge at that stage, if so advised, so any issue of unfairness or prejudice was at this stage “potential rather than actual”.
‘Significant risk of injustice’
However, the sheriff sustained the compatibility minutes and deserted the case simpliciter.
In a written judgment, Sheriff Macdonald said: “I consider that the loss of the CCTV footage does infringe the article 6(1) right of both minuters’ to a fair trial. The lost evidence is in my view material.
“It per se may have been sufficient to persuade the court to acquit. There would be a significant risk of injustice were this case to be permitted to proceed to trial.
“The Crown’s stated intent simply not to lead any evidence as to the content of the cctv affords no solution. This case concerns exculpatory evidence.
“As I highlighted above, prejudice to the minuters is not necessary to establish a contravention of their article 6 rights, but may nevertheless be present. In this case, it undoubtedly is.
“They have lost the opportunity to inspect and, if so advised, lead primary exculpatory evidence. They have lost the legal right for the court to form conclusions as to the content thereof.
“I am not considering a case where there is a risk of prejudice. Real and material prejudice has already been caused to both minuters in the present case.
“Under article 6 of ECHR and section 6 of HRA, I hold that it would be unfair and so, unlawful for this trial to proceed without the cctv footage. Having so decided I must identify a remedy that is practical and effective.
“No trial, even if conducted impeccably, can ameliorate the unfairness I have identified. The only remedy available is to take the exceptional course of bringing the proceedings to an end. The appropriate disposal therefore must be desertion simpliciter.”
© Scottish Legal News Ltd 2019