Prosecution evidence: Complainant’s mobile phone

The Court of Appeal, Criminal Division, considered various issues relating to the retention, inspection, copying, disclosure and deletion of the electronic records held by prosecution witnesses. In particular: (i) the request to inspect digital material had to have a proper basis, usually that there were reasonable grounds to believe that it might reveal material relevant to the investigation or the likely issues at trial; (ii) investigators would need to adopt an incremental approach to the review of the witness’s electronic communications; (iii) reassurances should be provided to the complainant; and (iv) the consequence of refusal to permit access or deletion of relevant material were set out.

Two otherwise unrelated cases had been listed together to provide the court an opportunity to consider various issues relating to the retention, inspection, copying, disclosure and deletion of the electronic records held by prosecution witnesses.

The first defendant pleaded guilty to assault by beating of an emergency worker, and was convicted by a jury of assault occasioning actual bodily harm, sexual assault, assault by penetration and making a threat to kill. He appealed against conviction on the counts to which he had not pleaded guilty.

The second defendant was convicted of rape. He renewed his application for leave to appeal his conviction.

(1) The circumstances when it became necessary for the investigators to seek details of a witness’s digital communications and thereafter to disclose material to which they had access.

The request to inspect digital material, in every case, had to have a proper basis, usually that there were reasonable grounds to believe that it might reveal material relevant to the investigation or the likely issues at trial. Regardless of the medium in which the information was held, a ‘reasonable line of enquiry’ would depend on the facts of, and the issues in, the individual case, including any potential defence. There was no presumption that a complainant’s mobile telephone or other devices should be inspected, retained or downloaded any more than there was a presumption that investigators would attempt to look through material held in hard copy. There had to be a properly identifiable foundation for the inquiry, not mere conjecture or speculation. Further, if there was a reasonable line of enquiry, the investigators should consider whether there were ways of readily accessing the information that did not involve looking at, or taking possession of, the complainant’s mobile telephone or other digital device. Disclosure should only occur when the material might reasonably be considered capable of undermining the prosecution’s case or assisting the case for the accused (see [67], [77] of the judgment).

R v H; R v C [2004] 1 All ER 1269 applied; R v McPartland and another [2019] All ER (D) 12 (Nov) applied; R v E [2018] EWCA Crim 2426 considered.

(2) When a properly founded request was made, how should the review of the witness’s electronic communications be conducted.

Investigators would need to adopt an incremental approach. First, to consider with care the nature and detail of any review that was required, the particular areas that needed to be looked at and whether that could happen without recourse to the complainant’s mobile telephone or other device. Second, and only if it was necessary to look at the complainant’s digital device or devices, a critical question was whether it was sufficient simply to view limited areas (for example, an identified string of messages/emails or particular postings on social media). In some cases, that would be achieved by simply looking at the relevant material and taking screenshots or making some other record, without taking possession of, or copying, the device. Third, if a more extensive enquiry was necessary, the contents of the device should be downloaded with the minimum inconvenience to the complainant and, if possible, it should be returned without any unnecessary delay. If the material was voluminous, consideration should be given to appropriately focussed enquiries using search terms, a process in which the defendant should participate. It might be possible to apply data parameters to any search. Finally, appropriate redactions should be made to any disclosed material to avoid revealing irrelevant personal information (see [88] of the judgment).

R v R [2016] All ER (D) 06 (Jan) considered.

(3) What reassurance should be provided to the complainant as to ambit of the review and the circumstances of any disclosure of material that was relevant to the case.

The complainant should be told: (i) that the prosecution would keep them informed as to any decisions that were made as to disclosure, including how long the investigators would keep the device, what it was planned to be extracted from it by copying and what thereafter was to be examined, potentially leading to disclosure; (ii) that in any event, any content within the mobile telephone or other device would only be copied or inspected if there was no other appropriate method of discharging the prosecution’s disclosure obligations; and (iii) material would only be provided to the defence if it met the strict test for disclosure and it would be served in a suitably redacted form to ensure that personal details or other irrelevant information were not unnecessarily revealed (for example, photographs, addresses or full telephone numbers) (see [92] of the judgment).

(4) What was the consequence if the complainant refused to permit access to a potentially relevant device or if the complainant deleted relevant material.

It was important to look carefully at the reasons for a refusal to permit access and to furnish the witness with an explanation and reassurance as to the procedure that would be followed if the device was made available to the investigator. If it was suggested that the proceedings should be stayed, the court would need to consider the adequacy of the trial process and whether that would ensure there was fairness to the defendant, particularly by way of cross-examination of the witness, coupled with appropriate judicial directions. The court should not be drawn into guessing at the content and significance of the material that might have become unavailable. Instead, the court had to assess the impact of the absence of the particular missing evidence and whether the trial process could sufficiently compensate for its absence. An application could be made for a witness summons for the mobile telephone or other device to be produced. If the witness deleted material, although each case would need to be assessed on its own facts, the potential utility of cross-examination and carefully crafted judicial directions were stressed. If the proceedings were not stayed and the trial proceeded, the uncooperative stance by the witness, investigated by appropriate questioning, would be an important factor that the jury would be directed to take into account when deciding, first, whether to accept the evidence of the witness and, second, whether they were sure of the defendant’s guilt (see [99] of the judgment).

The first defendant’s appeal against conviction would be dismissed and the second defendant’s renewed application for leave to appeal against conviction would be refused (see [115], [123] of the judgment).

R v Davies [2013] All ER (D) 76 (Sep) applied; R v PR [2019] EWCA Crim 1225 considered.

Pamela Brain (instructed by representation order) for the first defendant.

Chris Whitehouse (instructed by A2 Solicitors) for the second defendant.

Tom Little QC and Gabrielle McAvock (instructed by the Crown Prosecution Service) for the Crown in the first defendant’s appeal.

Tom Little QC and Andrew Thompson (instructed by the Crown Prosecution Service) for the Crown in the second appeal.

Karina Weller - Solicitor (NSW) (non-practising).