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The 4 Principles Applicable to Telephone Disclosure by Giles Bridge

Mon 29th Jun 2020

R v Bater-James and another [2020] EWCA Crim 790, [2020] All ER D 129[1] heard on 27/3/20, judgment published 23/6/20, (R v BJ hereafter)

1. You are the witness to or the victim of a crime. The police officer says that they need you to hand over your mobile phone. The officer says it will be examined and all of the contents may be downloaded. The officer cannot say when you will get your phone back. There is a long backlog of phones waiting to be downloaded, it could be a couple of months. It’s your phone, you really rely upon it. Like most people, your average screen time has rocketed during lockdown. There is so much detailed and very personal information on that phone. You ask the officer, ‘Do you really need to take my phone?’ You are very reluctant to hand it over. The officer says, if you do not hand it over the case probably will not go any further. Discussions like this take place every day across the United Kingdom.

The context and importance of this judgment
2. In R v BJ the Court of Appeal (Criminal Division), with the Vice-President Fulford LJ presiding, has given an important judgment that provides guidance in relation to the retention, inspection, copying, disclosure and deletion of the electronic records held by prosecution witnesses. The two appeals under consideration related to sexual offences, the most frequent type of case where such issues arise, but the court made it clear that the guidance is applicable to all prosecution witnesses.

3. The issue has gained prominence over the last year and a half. Since the introduction by the police of standardised disclosure notices[2] . In July 2019 Vera Baird QC, the Victim’s Commissioner, called for a review of police policy relating to the seizure of victim’s mobile telephones during investigations: criticising the policy on the basis that the privacy of victim’s was being infringed. The Centre for Women’s Justice subsequently launched Judicial Review proceedings against the National Police Chiefs Council and the CPS in relation to their policies relating to digital data downloads. On the 18/6/20 the Information Commissioners Office released a report into ‘Mobile phone data extraction by police forces in England and Wales’[3] , which was critical of current police practice. Elizabeth Denham, the Information Commissioner, stated, ‘As this report makes clear, a whole-of-system approach is needed to improve privacy protection whilst achieving legitimate criminal justice objectives.’ Vera Baird QC commenting on the report said, “This report must be the line in the sand. This situation has to change.”

4. As the judgment in R v BJ shows, the Court of the Appeal had also recognised the need for change in policy and procedure relating to the examination of witnesses’ digital devices. In R v BJ the Court examined these issues in March 2020, however the judgment was published 5 days after the ICO Report on the 23/6/20. The Court was also critical of the disclosure notice itself and proposes[4] a clearer, simpler and concise form of words for such notices. Hopefully, the suggestion of the Court of Appeal will be acted upon swiftly. These issues are currently under review and consideration as part of the joint National Police Chiefs Council and CPS ‘National Disclosure Improvement Plan’[5]. The January 2020 progress update on the plan , stated, “We are awaiting the report of the Information Commissioner into the appropriate legal basis for processing this data and we will review our approach in the light of any recommendations she makes.” In addition, the Attorney General is consulting on changes to Attorney General’s Guidelines on Disclosure, including changes to the handling of electronic data[6]. Now that the ICO report was been published we should soon see progress, shaped no doubt, by the guidance of the Court of Appeal in R v BJ. The case will therefore have a far-reaching impact and requires close consideration by all those involved in the criminal justice system.

The 4 Principles
5. The Court rejected two appeals where issues arose in relation to digital data. This article will deal with the facts of those appeals, but it is better to set out the principles which the Court of Appeal said that courts must apply when the issue arises in the future. The article will then apply those principles, identified by the Court, to the facts of the individual appeals. That way it will be possible discern the approach that the Court is likely to take to future cases.

A    Identifying the circumstances where it is necessary to seek digital communications
6. The Court stated that the investigator seeking material must base that request of the witness upon good cause. The CPIA 1996[7] and also the Attorney General’s Guidelines on Disclosure provide full and detailed guidance[8] . There needs to be an identifiable basis that justifies taking the step of examining a digital device. There need not be formal evidence, but there must be a reasonable foundation for the enquiry. What is a reasonable line of enquiry depends upon:
i) the facts,
ii) the issues, including any potential defence,
iii) in the individual case.

7. “There must be properly identifiable foundation for inquiry, not mere conjecture of speculation.” [9] The investigator should consider if there are other means of accessing the information, other than looking at or taking possession of the mobile telephone or digital device. Lastly, disclosure should only occur when the material might reasonably be considered capable of undermining the prosecution or assisting the accused [10]

B How will the review be conducted?
8. When a properly founded request from the investigator for the witness to disclose an electronic or digital device is made out, consideration then moves as to how that review of the electronic communications should be conducted.

9. The ambit of the review of the unused material and the details of proposed search terms or the parameters of any searches ought to be set out in the Prosecution Disclosure Management Document (DMD), a copy of which is provided to the defence. Search terms can be applied to text/SMS messages as well as messaging platforms such as WhatsApp and the multiple social media applications. As a result, practical and timely engagement by the defence with the DMD is critical as part of advancing the defendant’s interests. The Crown Court will expect that the defence engage constructively in that process, in R v BJ, there was some criticism of the way that the other defendant’s (SM) legal team engaged in the DMD process.

10. The judgment sets out 4 steps to the process by which review is to take place.
i) Consider with care the nature and detail of any review that is required, the particular areas that need to be looked at and whether this can happen without recourse to the witnesses’ mobile telephone or other device.
ii) Only if it is necessary are the investigator’s to look at the witness’ digital device(s), a critical question is whether it is sufficient simply to view limited areas (e.g. an identified string of messages/emails or particular postings on social media). In some cases, this will 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(s).
iii) If a more extensive enquiry is necessary, the contents of the device should be downloaded with the minimum inconvenience to the witness and, if possible, it should be 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’s legal team are expected to engage with. It may be possible to apply data parameters to any search.
iv) Finally, appropriate redactions should be made to any disclosed material to avoid revealing irrelevant personal information.

C Reassurance to the witness regarding ambit of the review of the material and any subsequent disclosure
10. This principle requires that the witness is kept informed of the use that it is proposed that the device and/or the material contained within it will be put. It is here that the Court was critical of the information that is currently provided by the police to witnesses. The reforms and changes that the Court believes should take place are set out below in the appendix.

11. The 3rd principle requires that the witness should be told 3 things.
i) That the prosecution will keep him or her informed as to any decisions that are made as to disclosure, including how long the investigators will keep the device; what it is planned to be “extracted” from it by copying; and what thereafter is to be “examined”, potentially leading to disclosure.
ii) That in any event, any content within the mobile telephone or other device will only be copied or inspected if there is no other appropriate method of discharging the prosecution’s disclosure obligations.
iii) Material will only be provided to the defence if it meets the strict test for disclosure and it will be served in a suitably redacted form to ensure that personal details or other irrelevant information are not unnecessarily revealed (e.g. photographs, addresses or full telephone numbers).

12. The implementation of this 3rd principle will require a substantial change in approach by the police in relation to practice, procedure and also resources.

D Consequences of refusal to permit access to material or the deletion of relevant material
13. Where a witness refuses to provide their mobile telephone or device, the first step is to find out the reasons for refusal. Then to explain the procedure that will be followed if the device is made available, including providing reassurance on the application of the first 3 principles. Consideration can be given to obtaining a witness summons to produce the item, allowing the witness the opportunity to make representations and assess their Article 8 rights under the EHCR [11]. The Crown in R v BJ indicated that only in exceptional cases would they make an application for a witness summons[12].

14. The Court stated that the refusal by a witness to provide access to the contents of a mobile telephone or digital device would not, on its own, constitute bad faith or misbehaviour on the part of the prosecutor to allow a stay of proceedings for abuse of process.

15. When considering the deletion by a witness of material, the Court will need to consider “their reasons for doing so, the timing of any such deletion, whether it followed any warning not to do so and (insofar as it can be ascertained) the nature of the material deleted will need to be considered carefully. Each case will turn on its own facts and particularly the assessment of the material that has been removed.” [13]

16. The Court then considered with approval the reasoning in R v PR [2019] EWCA Crim 1225, [2019] 2 Cr App R 22, a case where material was accidentally destroyed: which held that the trial process was capable of dealing with the issue and that a stay of proceedings should not be granted lightly.

17. There are 5 points to consider in this assessment under principle 4. The first 4 are of general application in relation to this principle. The 5th point relates to the situation where a witness has destroyed or deleted the material.
i) the court will need to consider the adequacy of the trial process, and whether this will ensure there is fairness to the defendant, particularly by way of cross-examination of the witness, coupled with appropriate judicial directions.
ii) The court should not be drawn into guessing at the content and significance of the material that may have become unavailable. There is no rule that, if material has become unavailable, that of itself means the trial is unfair because, for instance, a relevant avenue of enquiry can no longer be explored with the benefit of the missing documents or records.
iii) Instead, the court must assess the impact of the absence of the particular missing evidence and whether the trial process can sufficiently compensate for its absence.
iv) An application can be made for a witness summons for the mobile telephone or other device to be produced.
v) If the witness deletes material, although each case will need to be assessed on its own facts, the Court stressed role of cross-examination and appropriate carefully drafted judicial directions. The Court noted that the uncooperative stance by the witness, “investigated by appropriate questioning, will be an important factor that the jury will be directed to take into account when deciding, first, whether to accept the evidence of the witness and, second, whether they are sure of the defendant’s guilt.”[14]

18. The Court of Appeal acknowledged that the absence of records is a matter that is regretted. Though the Court stated that it just meant that the defendant is placed in a similar position to that of an “accused whose trial turns on a decision by the jury as to whether they are sure of the oral evidence of the prosecution witness or witnesses, absent other substantive information by which their testimony can be tested.” [15]

Application of the Principles to the 2 appellants
BJ
19. BJ had been in a relationship with V and was convicted after a trial of Count 1 ABH, Count 2 Sexual Assault, Count 3 Assault by penetration and Count 4 Threats to kill. He pleaded guilty to Count 7 Beating an emergency worker. BJ and V had been partners. BJ went to V’s home under the influence of alcohol and drugs and was aggressive, abusive and assaulted her (Count 1), during which he grabbed V’s phone to check her messages. He then forced his tongue into her mouth to kiss her (Count 2). BJ then accused V of sleeping with a friend of his. He pulled her trousers down and inserted his finger into her vagina (Count 3). After staying overnight, on the following day BJ became angry again when he held a knife to V’s throat and threatened to kill her Count 4. V stated that though BJ had gone too far, she wanted to help him and that she missed him and still loved him. There was phone contact between them whilst he had been on remand. BJ’s case was that V and her daughter were lying. He denied the assault, any sexual activity had been consensual. His case was further that V was manipulative and had ‘drip-fed’ information to the court.

20. There were 2 non-defendant bad character applications in relation to V. The first is not relevant to this article. The 2nd has relevance. The 2nd application related to an allegation of sexual assault, which it was argued was similar. The suspect for that allegation had also been in a relationship with V, and he stated that the allegation was malicious. V informed the police that she had deleted Facebook messages between her and the suspect, such messages had the potential to throw light upon their relationship. V subsequently admitted to the police that she had lied about deleting the messages, which she had retained. V was asked by the police to provide the messages, but she did not do so. V was given a 7 day deadline by the police to produce the messages and after that deadline had passed she said she deleted the messages having received a voicemail message informing her that the case would not be pursued if she failed to provide the records. The application to allow this in as bad character was agreed in the trial, but the context of agreed fact was that it was described as an assault.

21. During the trial, V was cross-examined about the fact that she had remained in close contact with BJ throughout through several mobile telephones. In relation to one of those phones V had refused a request of the police to seize and examine the phone, because she feared she would not get it back before the trial and also because of the private nature of material on the phone.

22. Subsequent to the cross-examination, V provided a further statement and produced voicemail messages and a selection of correspondence which she had previously refused to disclose. The prosecution was permitted to recall V to correct an unfair impression that had been created during her cross-examination. V brought her mobile telephone to court and accepted that she had deleted further information, but that this had been done because she ‘felt bad’ for BJ and she thought she was protecting him as he should not have been using a mobile telephone in prison. V’s evidence was that the contact between then came from BJ or his mother.

23. The Judge rejected an abuse of process application. The judge bore in mind that V had admitted lying, that she had remained in contact with the appellant and had deleted messages from her mobile telephone. The judge noted that the appellant had not produced his own mobile telephone (illegally held by him in prison), and determined there would have been no information on the complainant’s mobile telephone of assistance to him. Evidence of the conversations between BJ and V, did not indicate the complainant had been inaccurate as to the events with which the jury were concerned. The judge concluded that the deleted material would not have added to the jury’s understanding of the case. V made her mobile telephone available to the police and they took “screen shots” of potentially relevant material. None of that material produced, albeit incomplete, contradicted the account of the complainant as regards the alleged offences.

24. BJ appealed on the basis that it had been wrong to allow the prosecution to recall V and introduce the voicemails and letters. Further that V had been allowed to subvert the disclosure process: having destroyed potential evidence and been allowed to select the evidence introduced before the jury.

Decision
25. The recalling of V to give evidence was not unfair to correct the potentially misleading impression created during cross-examination. BJ was afforded the opportunity to secure additional evidence, which could have come from his mother. Although V had destroyed or failed to provide some of the potentially relevant material, it was possible for BJ to explore her actions and their impact during cross-examination. The material in existence suggested that the BJ was initiating contact through his mother. If it had been contended that within the missing communications, that V had said that her evidence on the counts was untrue this could have been put. V admitted that she had told lies about the fact of communication but it was for the jury to assess the relevance of that admission and her statement that she thought that revealing it would create problems for the appellant.

26. Examining the 4th principle, (the fair trial principle) the judge had assessed whether the trial process provided for appropriate safeguards to ensure fairness. The judge had correctly, if tersely when dealing with deleted material, considered the appropriate factors for the jury to consider in her summing up to the jury[16]. Nor was it suggested that V had withheld or deleted evidence of significance.

27. The Court ruled that taking into account the nature of the deleted material and the consequences of V’s actions, what had occurred could be addressed as part of the trial process. What had taken place did not involve malfeasance on the part of the prosecution. There had been: 1) no abuse of process on the part of the prosecution and 2) there was no consequential unfairness in the trial of BJ. Though the Judge’s summing up on potential prejudice regarding the deleted material was short, however given the fact that there was no ‘substantive suggestion that there had been identified prejudice, this lack of a full direction does not render the verdicts unsafe.’ [17]

SM
28. SM was convicted of the rape of C which took place on a university campus. C had been out with friends, had drunk alcohol but was sober (a subsequent toxicology report was inconclusive) by the time she returned back to her flat at 3.45 am, falling asleep at 4.45 am. C was awoken when she felt SM on top of her with his penis in her vagina. C noticed that SM was not wearing a condom and told him to get off. He told her his name was Michael and that they had met at a club. C started crying and SM got dressed and said that he was going outside for a smoke. Shortly afterwards, SM returned; he called her ridiculous and left. CCTV footage showed SM arriving at 5.16 am and leaving at 5.27 am. SM’s account was that he was looking for a party to return to when he came across C who was sober. C had invited in back to her room and had initiated sex. SM’s estimate was that they had been together for 45 minutes, and had had sex for 30 minutes, during which she had acted strangely asking for his name repeatedly and when she asked him to stop, he had done. SM’s also asserted that C’s unexpected behaviour may have been the result of her consuming drink or drugs.

29. C’s mobile telephone was subject to a full download. There was a DMD, which outlined targeted searching would be undertaken using keyword searching. That examination revealed two different sexual encounter incidents, which were disclosed to the defence. Those incidents can be summarised for the purpose of this article as sexual activity taking place when under the influence of alcohol and subsequent difficulties recollecting what had occurred. A 2nd DMD was served which listed the 21 keywords used to conduct searches and revealed that there were 40,000 pages of material. The defence submitted that the full 40,000 pages should be examined in their entirety, which was rejected by the judge. Subsequently the defence submitted further search words which did not result in any additional disclosure.

30. At the trial there were applications under S. 41 (3) of YJCEA 1999[18] , in relation to the incidents disclosed by the prosecution and a topic raised in the cross-examination of SM by the prosecutor. The facts of these applications are not relevant to this article.

31. The ground of appeal that is relevant is that: either i) a full review of the entirety of the telephone messages on C’s mobile telephone should have been undertaken, or ii) a full copy of all of the material should have been provided to the defence. It was submitted that the defence could not know which search terms to furnish. Particularly given the fact that C was a US citizen: so taking into account the use of idioms, it would be more difficult to provide a list of search terms.

Decision
32. The request for either i) or ii) set out in paragraph 31 above to have taken place was misconceived. The reason for that was that there was no proper basis for an interrogation of C’s mobile telephone. The reason for this was that SM’s defence was that they had chatted and flirted before they engaged in sexual relations, in which she was the initiator and an active participant. SM’s case was that she was fully awake sober and engaged throughout. SM’s additional contention that her repeated requests for his name and to stop intercourse because she may have been under the influence was i) entirely inconsistent with his defence and ii) inherently speculative. The requests for his name and to desist, ‘did not provide a reasonable foundation for exploring, as proposed, whether she had a history of drunken or drugged sexual encounters with men, leading to loss of memory, given the appellant’s own account was that she was sober, fully awake and rational.[19]’

33. Further as SM and C were complete strangers there was no history to their relationship or other circumstance which justified accessing C’s personal records for the reason argued by the defence. A full review by the prosecution was not justified. Passing that role onto the defence was totally inappropriate, as it would have involved a significant intrusion into V’s right to privacy.

34. Turning to the 2nd principle, had a further search been justified, then the use of search terms was the appropriate means of doing this. It was unrealistic and unnecessary to carry out an individual inspection of 40,000 pages. As had happened in this case properly formulated search terms, with the assistance of the defence, appropriately identified potentially disclosable material. As in this case allowance can be made for dialect and idiom.
Conclusions

35. The Court of Appeal has provided clear guidance on steps to be followed by the courts when considering applications to disclose material contained upon mobile telephones and other digital devices. Disclosure of such material will it seems be reduced. Speculative requests ought not to succeed. Courts are now expected to follow the 4 principles set out in R v BJ. The Court of Appeal recognises that all such decisions are fact specific, including the nature of the defence case. If a judge follows the principles laid down in the judgment, then the Court of Appeal will be reluctant to overturn a reasoned decision, unless it can be shown to be unreasonable.

36. The Court of Appeal has provided it’s own steer to the police and the CPS as to what they expect to see now that the prosecuting and investigatory agencies are reviewing their own policies in relation to the obtaining and considering such material. The police and the CPS will welcome the fact that the Court of Appeal has taken a restrictive approach, which will reduce burden that has been placed upon them over recent years when considering this type of material.

37. The DMD will now become a key document, which ought to be the focus of attention of both prosecution and defence post charge.

38. The defence will need to make well-crafted and cogent applications, which explicitly refer to the 4 principles to: i) get the prosecution to carry out relevant enquiries, ii) attempt to gain access to the material produced and iii) push the prosecution to carry out follow up enquiries as the case develops and progresses.

39. Witnesses and victims ought to be heartened by the fact that the intrusion into their own personal lives brought about by the examination of their mobile telephone will be much reduced. Complaints being withdrawn or not being charged because of a reluctance to hand over devices, will hopefully be reduced as a consequence.

Giles Bridge
Broadway House Chambers
25 June 2020

Appendix
In relation to the 3rd Principle the formulation suggested by the Court of Appeal, at paragraph 89, in relation to the Disclosure Notice is as follows:

“We respectfully suggest that either in addition to, or in replacement for, the present document there should a short and straightforward explanation of the following matters:
i) the defendant does not have a general right to examine the content of a witness’s digital device;
ii) the police will only seek to examine the contents of such devices when to do so is in pursuit of a reasonable line of inquiry;
iii) the witness is not obliged to cooperate with a police request, but if the witness fails to do so, there is a risk that it will be impossible to pursue the investigation, a witness summons may be issued or any trial resulting from the investigation may be halted;
iv) the witness’s device will only be copied and examined to the extent necessary to pursue the reasonable line of inquiry (if part or all of the device has been copied, frequently examination will be undertaken, at least in the first instance, by focussed “search terms”), and otherwise the contents will not be looked at;
v) only material which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused will be disclosed to the defence, and any unnecessary personal details or irrelevant information will be redacted; and
vi) the witness will be consulted as to the regularity and extent of any contact by the investigators regarding the disclosure process.”
The consent form, which witnesses sign, is also criticised at paragraph 91,
“This (consent form) is equally densely drafted. We respectfully suggest that this form needs to be made more readily understandable and, in particular, there needs to be clarity as to:
i) the length of time the witness will be without their digital device; and
ii) ii) what areas will be looked at following the copying of the contents of the device.
These two areas are presently not adequately addressed.”

References

[1] R v BJ and M, the transcript is available at https://crimeline.co.uk/bj-and-another-2020-ewca-crim-790/ and https://www.bailii.org/ew/cases/EWCA/Crim/2020/790.html

[2] The notice https://www.npcc.police.uk/documents/NPCC%20FINAL%20CONSENT%20v1.2.pdf

[3] The report https://ico.org.uk/media/about-the-ico/documents/2617838/ico-report-on-mpe-in-england-and-wales-v1_1.pdf

[4] At paragraph 89 of the judgment.

[5] The report https://www.cps.gov.uk/sites/default/files/documents/publications/NDIP-Progress-Report-January-2020.pdf

[6] The consultation has been extended until 22/7/20 and can be accessed here https://www.gov.uk/government/publications/consultation-on-revisions-to-the-attorney-generals-guidelines-on-disclosure-and-the-cpia-code-of-practice

[7] Criminal Procedure and Investigations Act 1996.

[8] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/868617/AG_Guidelines_on_Disclosure_-_FINAL.pdf

[9] Para 77 of the judgment.

[10] The test set out in Section 3 (1) (a) of the CPIA 1996.

[11] European Convention on Human Rights.

[12] Paragraph 95 of the judgment.

[13] Paragraph 97 of the judgment.

[14] Paragraph 99 of the judgment.

[15] Para 65 of the judgment of R v PR [2019] EWCA Crim 1225, [2019] 2 Cr App R 22

[16] See paragraphs 111 and 112 of the judgment.

[17] See paragraph 115 of the judgment.

[18] S. 41 of the Youth Justice and Criminal Evidence Act 1999, previous sexual history of a complainant.

[19] Paragraph 117 of the judgment.

 

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