No: 9706856/X5

IN THE COURT OF APPEAL
CRIMINAL DIVISION
                               Royal Courts of Justice
                               The Strand
                               London WC2
 
                               Friday 10th July 1998
 
                    B E F O R E :

                  LORD JUSTICE MAY

                 MR JUSTICE ROUGIER
 
                         and
 
             HIS HONOUR JUDGE FABYAN EVANS
(Acting as a Judge of the Court of Appeal Criminal Division)
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                    R E G I N A

                       ‑ v ‑

              Christian James SWINGLER
 
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   Computer Aided Transcript of the Stenograph Notes of
           Smith Bernal Reporting Limited
          180 Fleet Street, London EC4A 2HD
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MR M GLEDHILL appeared on behalf of the Applicant

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                      JUDGMENT
             (As approved by the Court)
 
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10th July 1998
 
LORD JUSTICE MAY: Rougier J will give the judgment of the court.
 
MR JUSTICE ROUGIER: On 19th November 1996 on a retrial at the Cambridge Crown Court the applicant was convicted of rape and sentenced to seven years' imprisonment.
      He renews his application for an extension of time and, if granted, seeks leave to appeal against that conviction after refusal by the learned single judge.
      Dealing with the application for an extension first, we take the view that from the very nature of the submissions which have been made to us we ought to grant that extension and concentrate our minds on the proposed grounds of appeal.
      The prosecution case in outline was that the victim was a respectable 50 year old widow who had come from Brazil to visit her daughter who was studying in Cambridge.  She accompanied her daughter to a local nightclub on the evening of 6th July 1995.  There they met the applicant who, to use his own words, was "trawling and sharking" which were later translated as meaning being on the look out for a woman who would  oblige by granting sexual favours.  The three persons, that is to say the applicant, the complainant and her daughter, started to make their way home and at one stage the daughter peeled off, leaving the other two alone.  They crossed Parker's Piece and made their way towards the railway line which was spanned by a large modern bridge.
      The essence of the complainant's evidence was that throughout the journey the applicant had shown various signs of familiarity which she had resisted, and that when they reached the end of the bridge he forcibly overcame her struggles and her resistance, pulled her into the bushes and raped her.
      It was the applicant's case that so far from there being any struggles or resistance, the walk was conducted in a atmosphere of mounting sexual arousal and familiarity and finally, after leaving the far end of the bridge, sexual intercourse had taken place by consent.
      It so happened that on the bridge itself there had been mounted a series of video cameras.  When the case was being investigated, according to the evidence of the detective constable who was in charge of the investigation, or at any rate conducting a part of it, she was given to understand that the cameras on the  bridge belonged to the British Transport Police as part of the railway organisation.  She rang the British Transport Police and was told that the cameras in question were not switched on and were not working at the time.  She therefore took no further action.
      The truth was that they were working and would almost certainly have contained film of the applicant and the complainant as they walked over the bridge shortly before the alleged rape took place. Unfortunately the truth was not discovered until a month after the alleged offence by which time the film had been reused and the original lost forever.
      It is the proposed contention of Mr Gledhill on the applicant's behalf that the destruction, or at any rate the loss, of that film, a potentially vital piece of evidence which would have shown one way or the other where the truth lay, should have been advanced at the trial as affording a successful argument that the trial was itself an abuse of process.  In brief, without doing injustice to it, his contention is that where the police had failed to obtain such a potentially vital piece of evidence then it had deprived the applicant of a fair trial, notwithstanding the fact that it might well be that if such a film was shown it would have made the prosecution's case even stronger. 
      We were referred to the case of Ashor Kumar Gajree, unreported, but a decision of this court given on 20th September 1994, a case where there had been an allegation of sexual impropriety in the appellant's shop which ended with an allegation that the complainant had masturbated him on the carpet of the shop and the police, although the complaint had been made to them, had not taken the trouble to have the carpet forensically examined.  It was in that case accepted, both by prosecution and defence, that that failure amounted to culpable delay in not pursuing the matter and the court in the final passage described it as "inertia".  Effectively there was heavy criticism of the way in which the police had acted.
      By contrast, in the present case, Mr Gledhill very fairly confessed himself in great difficulties in criticising WDC Lancaster for accepting that which colleagues, who ought to have known, had told her. That, it seems to us, is the vital distinction in this case.  The fact of the matter is that there had been evidence of potentially great significance but that evidence had disappeared.  To us there seems to be no distinction in principle between that and the situation where perhaps there was one eye witness who could have told where the truth lay but had unfortunately died  before a statement could be taken from him.  The evidence simply is not there.  The jury had to do their best with the evidence that was there.
      However besides the evidence of the complainant we should note that there was a considerable body of further evidence.  First of all there were three students who were within earshot of the alleged rape, all of whom stated positively that they heard the complainant's cries of distress.  They were cross examined on the basis that they were mistaken, that those cries were not those of distress but of sexual pleasure, but they remained unshaken in their evidence. The victim herself was rescued, as it were, by a police officer who was called to the scene.  His first sight of the victim was of her coming out of the bushes in an extremely distressed state.  Finally, upon medical examination, it was discovered that the victim had certain minor injuries in the vaginal area.
      It seems to us that before there can be any successful allegation of an abuse of process based on the disappearance of evidence there has to be either an element of bad faith or at the very least some serious fault on the part of police or prosecution authorities before such an application can possibly succeed.  That was the situation in the case of Birmingham (1992) Cr  App R CLR Law 117, where a prosecution was stayed as being an abuse on the basis that neither the police nor the Crown Prosecution Service had shown the defence a video which showed aspects of the incident.  If it were otherwise every time a significant piece of evidence by accident were not available, a defendant facing a serious charge, which might be supported by other cogent evidence, would effectively be able to avoid it on this somewhat technical ground.
      We would also add that, in our view, one day the question of whether and to what extent mere lackadaisical or negligent failure on the part of the police to make proper investigation might afford a ground for alleging abuse of process may need further consideration by this court, but on any view that position has not been reached here, and for those reasons this application is refused.