By Paul Taylor QC
Court of Appeal of Bermuda
Failure by police to retain video – effect on fairness of trial – abuse of process
The Queen v Leon Burchall
BCA : No 14 of 2017 [5 March 2018]
The prosecution appealed against the decision of the Chief Justice who allowed an appeal by LB against his convictions for: (i) driving a motor vehicle while impaired; (ii) failing to comply with a demand made by a Police Officer to supply a sample of breath for analysis, (iii) assaulting a Police Officer in the execution of their duty.
The basis of the Chief Justice’s finding was the police’s destruction of a video recording of what occurred at the police station and their consequent inability to disclose it to the defence.
The questions for the BCA were whether the trial should have been stayed for abuse of process, and whether the Chief Justice was right to hold that it should have been, and accordingly direct the acquittal of LB on all three charges.
The prosecution evidence was that PC Evelyn had seen LB driving erratically on the wrong side of the road. LB stopped in a driveway and got out, stumbling and held the wall for support. The magistrate accepted the evidence of erratic driving, that LB’s eyes were glazed, he was unsteady on his feet, and his breath smelt of alcohol. He was taken to the police station where he became agitated and aggressive, and was said to have assaulted a police officer.
LB pleaded not guilty 3 days after his arrest.
The police had a video recording of events at the police station, but in accordance with ordinary practice, routinely destroyed it after three months. It had been destroyed by the time LB’s lawyer asked for disclosure of it. LB argued that he could not have a fair trial.
The BCA referred to R v Feltham Magistrate’s Court, ex Parte Ebrahim  EWHC Admin 130 regarding the non-disclosure of video evidence, and the Bermuda statutory disclosure obligations under sections 4 and 6 of the Disclosure and Criminal Reform Act 2015.
The Court found that in this case there was a duty on the police to preserve the video evidence. Such events were recorded “for the very purpose of providing independent evidence of what had occurred in the event of a dispute.”
The Court accepted that there was “prejudice to a fair trial” in relation to counts 2 and 3, but not in relation to count 1. There was extensive evidence of LB’s behaviour when driving and initially stopped and the Court thought that “anything that might have been shown on the video would have been unlikely in the extreme to have had any bearing with regard to count 1.”
Accordingly, Count 1 was upheld.
Where evidence has been destroyed, one of the central questions for a court is whether that disadvantage to the defendant could be accommodated to ensure a fair trial. Each case is fact specific. For an example of where the appeal court decided that the trial procedures were sufficient, see Clay v South Cambridgeshire Justices  EWHC 321 (Admin). There the Court found that the magistrates had not erred in finding that there had been no abuse of process in a road traffic case where police had allowed a car to be destroyed before a defendant had had a chance to examine it because of the issues in dispute and the other available evidence.
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