R v E  [2018] EWCA Crim 2426 is the first time that the Court of Appeal has addressed the difficulties with disclosure since the systemic problems within the police and the Crown Prosecution Service came into the public domain last year. Any lawyer likely to make or respond to an application on disclosure should keep the transcript within easy reach. It is not a groundbreaking case. It does not restrict disclosure any further. And it doesn’t open the floodgates. It is a measured working guide to the duties of investigators, prosecutors and judges who have to deal with that elephant in the room which has mutated into a growling tiger. And it is a useful talisman against that new breed of young, aggressive, careerist judges who are obsessed with the minutiae of process, clock watching and just want ‘to get on with it’, who are slithering onto the circuit bench.

What the Court of Appeal had to decide was whether the trial judge was correct to stay proceedings in a sexual assault case where one of the complainant’s phones was seized and downloaded revealing recent complaints whereas the other’s was not. Defence argued that the police were in breach of their statutory duty as seizure was a reasonable line of enquiry. It was conceded by the Prosecution that as there was a screenshot of a text from this phone, which was at about the time of the incident but did not refer to it, that the phone should have been seized. But it was too late. All potentially relevant data had been lost.

HHJ Burn ruled that E couldn’t have a fair trial: ‘... the phone download... for the majority of younger persons is tantamount to a running commentary upon their day to day lives, their feelings and interaction... this evidence goes to the heart of the defence ability to cross examine a complainant upon a record of their own making. The absence of such material deprives the trial process as a whole because it may be relevant to the prosecution case too of likely very important contemporaneous evidence.’

In allowing the appeal from the Crown, Leveson P concluded that ‘the effect of the ruling was that in every case of this type in relation to those who communicate through their mobile phones and social media, it would be necessary to seize and examine both phone and social media data on the basis that it “goes to the heart... of the ability to cross examine”.’

The appeal was allowed under s 67(c) of the Criminal Justice Act 2003: ‘that the ruling was not reasonable for the judge to have made’.

"Any lawyer likely to make or respond to an application on disclosure should keep the transcript within easy reach."

But the court accepted that ‘in some cases it may be necessary for the whole of the download to be examined. The extent of any investigation of digital material should only be confined if it is not considered to be a reasonable line on enquiry’. Further, on staying proceedings, ‘the proper approach is to look at whether the trial will be fair generally. That requires a consideration of all the circumstances of the case: it is a fact sensitive decision. The circumstances primarily revolve around the issues of the case and the likelihood that information relevant to those issues and of assistance to the defence would have been revealed by the material that is available.’

The court was of the view that on this fact-specific case, a conventional direction ‘pointing out the disadvantage the defence may have been under caused by the absence of this material and direct the jury to take that into account when applying the burden and standard of proof’. It was also made clear that staying a prosecution should be a last resort, where a defendant cannot receive a fair trial.

Where R v E is helpful is that it sets out the blindingly obvious. In a perfect world with unlimited resources prosecutors should guide officers on what is a reasonable line of enquiry. But we don’t live in a perfect world. Speedy guidance is hampered by a lack of time, resources and a cultural problem with investigators falling into bad practice. Very often by the time papers come to prosecution counsel, the evidence is no longer available and it is left to judges to try to bring fairness to an evidential shambles.

Judge Burns was right to draw our attention to the value of social media as a running commentary of our lives. Courts and prosecutors would be very unwise to ignore this. And prosecutors and police would be wise to add to ‘if in doubt disclose’, a policy of ‘if in doubt seize’.

Successive governments have bled the criminal justice system dry. It is time that they appreciated that justice on the cheap isn’t justice at all.

The fundamentals of mobile phone evidence

Don’t slide down the rabbit hole. The way down is a breeze, but climbing back’s a battle.  – Kate Morton,  The Clockmaker’s Daughter

The problem with rabbit holes is that all too often they are only as deep as you choose to dig. Therein lies much of the issue with digital evidence in sexual offence cases – choosing to dig, where to start and how far to go. The police at least have the technical spades at their disposal and should start the process first with the informed consent of the subject. Unlike many criminal offences, sexual cases almost invariably occur in private with often no other evidence than the word of one person against another that it has happened. It follows that the reliability and credibility of witnesses becomes critical to most cases. These disclosure challenges are only a reflection of how society has changed in response to the proliferation of technology.

It is a common assumption that there will be some form of relevant evidence contained in what really amounts to an electronic daily diary. If one was to replace the words ‘mobile phone’ with ‘letter’ then its obvious relevance to an investigation as a reasonable line of inquiry becomes immediately discernible. Moreover, the modern electronic diary of a phone can, and will, record items that the author is either unaware of or may have little control over eg location services. An absence of material can in itself be relevant in the right circumstances. However, unlike old-fashioned diaries, most of the time we are aware of the existence of at least the likelihood of mobile phone evidence.

R v E [2018] EWCA Crim 2426 in many respects is a reiteration of the position of R (Ebrahim) v Feltham Magistrates Court [2001] EWHC Admin 130 (referred to in the judgment) which has been settled law now for a number of years in respect of evidence that has been lost or destroyed. In respect of reasonable lines of inquiry, R v E appears to be an approval of the CPS and Attorney General guidance that was issued last year. Additionally, the Court of Appeal cautioned that reasonable lines of inquiry in terms of mobile phones will remain case-specific.

However, there remains a rather fundamental point about mobile phone evidence which is that if the police or the Defence do not look at what is there, then no one will actually know what it contains. Cases like Liam Allan and Isaac Itiary were stopped not because of exchanges between the complainant and the accused, but due to evidence of conversations they had with other unconnected people that fatally undermined the Prosecution case. Many increasingly prefer to converse indirectly via written messages than have face-to-face conversations or on the telephone. This means that inquiries which may have previously seemed speculative are less so and can, perhaps, be viewed as line of inquiry to eliminate the possibility of such evidence existing. This, in itself, raises the thorny issue regarding privacy of parties to the communications.

There is also the method by which complainants are interviewed. The style of questions in most video interviews is one of dialogue rather than an elicitation of evidence without critical exploration or examination of the account given. Electronic evidence can provide more evidence as to the circumstances surrounding an allegation and, in consent cases, may even provide crucial information highlighting what was being said almost contemporaneously. Like their old-fashioned letter counterparts, they are largely written unguarded for a private audience or, just as tellingly, are a mechanism by which statements to a wider audience are made which may run contrary to the stated position in evidence to the police. (I defended in a case where the complainant had made a number of assertions in statements to the police about how the allegations were said to have affected her which were directly contradicted by her posts on social media.)

It really is a resource issue as much as a legal one. The Defence simply do not have the technology or resources to deal with digital material. In the future, machine learning may alleviate some of the heavy lifting but, in the meantime, perhaps a similar approach to that taken in frauds and financial information could be applied to sexual offences – an initial broad retention and preservation of material at the outset to create a snapshot of the circumstances of the allegation subject to stringent privacy and retention policies. After that initial stage it could be kept on a cloud server, allowing the defence to inspect as triage whilst not losing control of the material or being overly intrusive if access is granted with auditable permissions.

Mary Aspinall-Miles, Chambers of Nicholas Haggan QC, 12CP Barristers, Southampton, is an elected member of the Criminal Bar Association Executive committee and CBA contributor to the National Disclosure Improvement Programme. She was defence counsel for Isaac Itiary at Inner London Crown Court which was the second rape case to reach national headlines after it collapsed and followed on from R v Liam Allan which shared the same officer in the case.