18 August 2020
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:
Complainants and witnesses should be told that:
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?