The issue of electronic evidence is not a new one. Since the disastrous and well publicised case of Liam Allen in 2017, the courts have been grappling with the issue of relevance and reviewing/disclosing evidence from the digital devices of witnesses in a case.
In Allen's case, he was on bail for over a year before being charged with several counts of rape. During the trial, his barrister obtained a copy of the complainant's text messages, including several which directly conflicted with her witness statement decimating her credibility, and ultimately the Crown's case.
In recent criminal cases of R v CB and R v Sultan Mohammed, the Court of Appeal has given guidance on the use of digital records held on electronic devices (such as mobile phones) by prosecution witnesses.
In both cases, the defence sought to adduce digital records evidence – including from social media and mobile phone messages – but were ultimately unsuccessful. Although both cases related to sexual assault, the issues of principle considered in the respective judgments are relevant to a wide variety of circumstances.
The Court set out the following guidance for investigators seeking to disclose details of a witness' digital communications:
- Any request to inspect must have a "reasonable foundation" – ie there must be reasonable grounds to believe that an inspection will reveal relevant material; it mustn't be a fishing expedition. There is no presumption that a complainant's device will be inspected.
- Any review of a witness's electronic communications should be proportionate, and where possible cause the least inconvenience to the witness. Investigators should consider whether the review can be undertaken remotely without requiring the device and whether it would be sufficient to view limited areas (such as a particular conversation or set of social media posts).
- Investigators should also note that if a more detailed review is needed, the device should be returned without unnecessary delay, that searches of large amounts of material should be limited with data parameters (such as search terms), and that irrelevant personal information should be redacted.
Complainants and witnesses should be kept informed and reassured regarding disclosure of any records
Complainants and witnesses should be told that:
- they will be informed of disclosure decisions, how long the device(s) will be retained and what information is being extracted and examined
- content will only be copied or inspected if no other method of discharging disclosure obligations is available, and
- material will only be provided to the defence if it meets the strict test for disclosure and is suitably redacted.
What are the consequences if the complainant deletes or refuses to permit access to relevant digital records?
The reasons for refusal should be carefully considered and reassurance regarding the disclosure procedure should be provided. If a stay of proceedings is suggested on the basis that a fair trial is not possible, this should be considered along with the adequacy of the trial process.
The court should not make guesses about the content and significance of the unavailable material but should assess the impact of its absence. A witness summons may be sought so that a device may be provided and, in the case of deletions, cross-examination or directions could be sought. If the trial were to proceed, the lack of cooperation from the complainant/witness would be an important consideration for the jury.
It will be interesting to see in practice how investigators will approach cases where a complainant or witness' phone is required. How much pressure will the defence apply to ensure phones are interrogated? How much push back might there be from complainants and witnesses? Will this finally encourage those accused of offences to put some meat on their bare bones defence statement to justify their disclosure application? After all, in this digital age, surely it's not right to only hear one side of the story?
