The Key to the Sweet Cupboard is No Longer Left in the Keyhole
In recent years, a number of cases, particularly those involving sexual allegations, have foundered as a result of a failure to disclose digital material. This issue was the subject of a conjoined appeal before the Vice-President of the Court of Appeal (Criminal Division) Lord Justice Fulford on 23 June. 
The two cases were listed together to allow the Court to consider the issue of the retention, inspection, disclosure and deletion of electronic records belonging to prosecution witnesses. Such issues aren’t exclusive to sexual offences but have wide ranging application.
Facts of the two appeals
Carl Bater-James was convicted of offences of assault occasioning actual bodily harm, sexual assault, assault by penetration and making a threat to kill. The complainant (C) was the same in respect of all allegations and he had pleaded guilty to the assault of an emergency worker. He received a total of 9 years 2 months imprisonment.
The appellant denied assaulting or threatening to kill C who was his ex-partner. He maintained that any sexual activity was consensual and insisted that C and her daughter, who had witnessed the incident, were lying. He also alleged that she had drip-fed information to the court.
The issue relevant to this article, was the complainant’s refusal to provide a significant mobile phone to the police. However, following, cross-examination about continued and continuing contact between her and the appellant, C produced voicemail messages and correspondence between her and the appellant. The judge also allowed the prosecution to recall her to deal with that evidence, on the basis that it rectified the unfair impression created during the cross-examination.
That led the appellant to submit that C had manipulated the process of the court to such an extent that he could no longer receive a fair trial and that as such, the proceedings should be stayed as an abuse of process.
Sultan Mohammed renewed an application for leave to appeal his conviction, having entered the room of C uninvited and raping her whilst she slept. He was sentenced to 8 years’ imprisonment.
Immediately after the appellant left, C recorded a video on her mobile phone detailing what had happened and sent a message to her friends, stating, ‘I think I was raped’ and ‘I’m almost positive.’ The appellant’s case was that sexual intercourse was consensual and that he had been invited into her room but due to her level of intoxication, C had forgotten the earlier part of their encounter.
The police downloaded and copied the contents of her mobile phone, which amounted to 40,000 pages. They then used search terms to assist in identifying any messages that might indicate that the sexual intercourse had been consensual. They identified messages which referred to an unhappy sexual encounter between C and a male friend and that on that occasion she had been drunk and unable to recall what had taken place. An application to adduce that evidence under s. 41 of the Youth Justice & Criminal Evidence Act 1999 was rejected twice by the trial judge and that element of the appeal will be the subject of a separate article.
The appellant did not provide any additional search terms until after an application for disclosure of the entire download was refused. That gave rise to first ground of appeal, namely; that the prosecution should have been ordered to review the entirety of the phone messages or, alternatively, a full copy of the download should have been provided to the defence. In the absence of either, it was submitted that the appellant was denied a fair trial.
The issues of principle
The Court took the opportunity to set out four issues of principle that will apply to all cases which involve digital communications, namely:
- Identifying the circumstances when it is necessary for investigators to seek details of a witness’s digital communications, from whatever platform. The question is when does it become necessary to attempt to review a witness’s digitally stored communications and when is it necessary to disclose digital communications to which the investigator has access?
- When it is necessary, how should the review of the witness’s electronic communications be conducted?
- What reassurance should be provided to the complainant as to the ambit of the review and the circumstances of any disclosure of material that is relevant to the case?
- What is the consequence if the complainant refuses to permit access to a potentially relevant device, either by way of downloading the contents or permitting an officer to view parts of the device? Similarly, what are the consequences if the complainant deletes relevant material?
They also noted that is already an extensive legislative and regulatory framework governing disclosure in this context.
The first issue of principle: identifying the circumstances when it becomes necessary for investigators to seek details of a witness’s digital communications and thereafter to disclose material to which they investigator have access.
There is no obligation on investigators to seek to review a witness’s digital material without good cause. Any such request must have a proper basis, i.e. that there are reasonable grounds to believe that it may reveal material relevant to the investigation or the likely issues at trial.
S. 3 (1) (a) of the CPIA remains the test for disclosure – any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused.
In R v H and C,the House of Lords confirmed that ‘the trial process is not well served if the defence are permitted to make general and unspecified allegations and then seek far-reaching disclosure in the hope that material may turn up to make them good. Neutral material or material damaging to the defendant need not be disclosed.’
The Court observed that reflects the Attorney General’s Guidelines on Disclosure that ‘it is not the duty of the prosecution to comb through all the material in its possession… on the lookout for anything which might conceivably or speculatively assist the defence.’
‘Victims do not… waive their right to privacy under Article 8 ECHR by making a complaint against the accused. The court… must ensure that any interference …is in accordance with the law and is necessary in pursuant of a legitimate public interest.’
The court indicated that digital information is no different from any other information or record. In addition, the amount of material capable of being stored on a device is vast but simply because it is easily accessible does not make it more susceptible to scrutiny. The belief that, particularly in sexual offences, there is automatic and unfettered access by investigators to the complainant’s digital information, is not the case.
That was observed in R v E  and R v McPartland and another, the former confirming that the police are not under a duty to seize and interrogate the phone of any complainant who makes a sexual offence, the latter, that it is not usual practice to examine the phone of a complainant in every allegation of a sexual offence; what is a reasonable line of enquiry depends on the facts of each case.’
Therefore answering the first issue, the Court held that regardless of the medium in which the information is held ‘a reasonable line of inquiry’ depends on the facts of, and the issues in, the individual case, including any potential defence. There is no presumption that a complainant’s mobile phone should be inspected, retained or downloaded, anymore, than there is an assumption that investigators will attempt to look through material held in hard copy. There must be a properly identifiable foundation for the inquiry, not mere conjecture or speculation. Furthermore, if there is a reasonable line of inquiry, investigators should consider whether there are ways of readily accessing the information that does not involve looking at or taking possession of the complainant’s phone or other digital device. Disclosure should only occur if it meets the test for disclosure.
The second issue of principle: when a properly founded request is made, how should the review of the witness’s electronic device be conducted?
If a reasonable line of inquiry is established to examine communications that may be achieved without the need for the witness to surrender their device, perhaps by examining the suspect’s phone.
If material on the complainant’s phone needs to be reviewed, an important question is whether a discrete part of the digital record will suffice. However, if a detailed examination is necessary, it may be necessary to use search terms rather than conduct a page-by-page inspection. That can be done by developing a strategy setting out how it is to be examined and providing the defence with the search terms. That may have to be carried out on more than one occasion, in light of the continuing duty of review.
The answer to the second issue is therefore, first to consider with care the nature and detail of any review, the particular areas that need to be looked at and whether that can happen without recourse to the complainant’s mobile phone or other device. Second, and only if it is necessary to look at the complainant’s digital device/s, a critical question is whether that can be achieved by looking at the relevant material and taking screenshots or making some other record, without taking possession or copying, the device. Third, if that can’t be done, the contents of the device should be downloaded with the minimum inconvenience to the complainant and, if possible, returned without any unnecessary delay. If the material is voluminous, consideration should be given to appropriately focussed enquiries using search terms, a process in which the defendant should participate. Finally, appropriate redactions should be made to any disclosed material.#
The third principle: what reassurance should be provided to the complainant as to the ambit of the review and the circumstances of any disclosure of material that is relevant to the case?
The complainant should be told i) that the prosecution will keep them informed as to any decisions that are made as to disclosure, including how long the device will be kept, what is planned to be extracted from it and what thereafter, is to be examined, with the potential to be disclosed, ii) that content will only be copied or inspected if there is no other appropriate method of discharging the disclosure obligations and iii) material will only be disclosed if it meets the strict test for disclosure and it will be in redacted form.
The fourth principle: What is the consequence if the complainant refuses to permit access to a potentially relevant device or if the complainant deletes relevant material?
It is important to look at the reasons for a refusal to permit access and to provide an explanation and reassurance as to the procedure to be followed if the device is made available. If there is a suggestion that proceedings should be stayed, the court will need to consider the adequacy of the trial process and whether that can ensure there is fairness to the defendant.
The court should not guess at what such material might have contained, had it been available but must assess the impact of the absence of the material and whether the trial process can compensate for its absence.
An application can be made for a witness summons for the production of the device.
If a witness deletes material, each case must be assessed on its own facts, but it may be that can be dealt with by cross-examination and judicial directions. If the proceedings are not stayed, the uncooperative stance of the witness will be an important factor that the jury will be directed to taken into account when deciding, first, whether to accept the evidence of the witness and, second, whether they are sure of the defendant’s guilt.
The individual appeals
Both appeals were dismissed. In respect of Bater-James and the grounds relevant to this article, the Court confirmed it would have been preferable for the complainant to have provided her mobile phone at an earlier stage. However, the appellant had been able to explore her actions in deleting or failing to provide relevant material through cross-examination.
Similarly, the fact that the evidence she did provide, came as a consequence of the cross-examination of her and after she was recalled, was not unfair as it did no more than to correct a potentially misleading impression created during that cross-examination. It follows that there was no unfairness in the trial which could have led to a stay of proceedings as an abuse of process.
In respect of Sultan Mohammad, the Court found that no properly identifiable foundation for the review by the prosecution of part, or the entirety of the complainant’s phone or for them to provide the entire download had been advanced by the appellant. The case did though demonstrate that the use search terms, if properly formulated with the defence, is an appropriate method of identifying, potentially disclosable material.
This decision has been designed to stem the tide of wide ranging, speculative applications for the complete download of a witness’s digital data. It doesn’t preclude, well founded, properly honed requests which stem from a similarly drafted defence statement which sets out both the defence case and the relevant issues.
Head of Crime
 Bater-James and another v R (2020) EWCA Crim 790 (23 June 2020)
 S. 3(1)(a) & 23(1) CPIA, Paragraph 3.5 of The Code of Practice to the CPIA, The Attorney General’s Guidelines on Disclosure (December 2013), The CPS ‘Guidelines on Communication Evidence’ (January 2018) and paragraphs 13 – 19 of The Guide to Reasonable Lines of Inquiry and Communications Evidence (July 2018) by the DPP
 R v H and C (2004) UKHL 3: (2004) 2AC 134; (2004) 2 Cr App R 10
 Attorney General’s Guidelines on Disclosure: Supplementary Guidelines on Digitally Stored Material (2011) at A40 (replaced by but annexed to, the current Attorney General’s Guidelines on Disclosure (2013) (see pages 4 and 18)
 Paragraph 47 Judicial Protocol on the Disclosure of Unused Material in Criminal Cases (2013)
 (2018) EWCA Crim 2426
 (2019) EWCA Crim 1782 (2020) 1 Cr. App R (S) 51
 (2006) EWCA Crim 3366
 Practice Note (2015) EWCA 1941; (2016) 1 Cr. App R 20