Obligations in relation to electronic records and devices: fresh guidance from the Court of Appeal (Criminal Division)Julian Jones
R v Carl Bater-James and Sultan Mohammed  EWCA Crim 790 – case comment by Julian Jones
Two otherwise unrelated cases were listed together to provide the Court of Appeal (Criminal Division), headed by the Vice – President Lord Justice Fulford, with an opportunity to consider various issues relating to the retention, inspection, copying, disclosure and deletion of the electronic records held by prosecution witnesses.
The Court made clear that while the issues often arise in the context of complainants’ telephones in sexual cases, the judgment is of potential relevance to a much wider range of circumstances. Thus, while this is undoubtedly an especially important case for those are involved in prosecuting and / or defending in sex cases, it is also a useful case for all criminal practitioners to be aware of.
The judgment of the Court in R v Carl Bater-James and Sultan Mohammed can be viewed here.
Structure of the Judgment
Paragraphs 1 – 2 introduce the issues of principle.
Paragraphs 3 – 14 summarise the procedural history and facts of the case of Bater-James.
Paragraphs 15 – 27 set out a series of rulings in the trial.
Paragraphs 28 – 33 set out the grounds of appeal and the respondent’s submissions in relation to them.
Paragraphs 34 – 43 summarise the procedural history and facts of the case of Sultan Mohammed.
Paragraphs 44 – 56 set out a series of rulings in the trial.
Paragraphs 57 – 64 set out the grounds of appeal and the respondent’s submissions in relation to them.
Paragraphs 65 – 99 set out the Court’s discussion in relation to Issues of Principle.
Paragraphs 100 – 115 set out the Court’s analysis of and decision in relation to the appeal against conviction in the case of Carl Bater-James.
Paragraphs 116 – 123 set out the Court’s analysis of and decision in relation to the renewed application for leave to appeal against conviction in relation to Sultan Mohammed.
The judgment of the Court of Appeal (Criminal Division) raises a number of interesting issues concerning non-defendant bad character (s.100 CJA 2003) and sexual history evidence (s.41 Youth Justice and Criminal Evidence Act 1999) and should be read in full. This article, however, will focus on the four Issues of Principle raised, and the answers provided by the Court.
The Court’s Identification of the Issues of Principle
By way of context, at paragraph 65, the Court referred to “exponential changes” in the ways that individuals gather, store and exchange information by digital means. The Court identified four Issues of Principle:
The First Issue of Principle
Identifying the circumstances when it is necessary for investigators to seek details of a witness’s digital communications. These are usually, but by no means always, electronic exchanges conducted by way of multiple platforms on smart mobile telephones, tablets or computers. These platforms are so numerous that it is pointless to attempt to list examples. In essence, the question in this context is when does it become necessary to attempt to review a witness’s digitally stored communications? The linked question is when is it necessary to disclose digital communications to which the investigators have access?
The Second Issue of Principle
When it is necessary, how should the review of the witness’s electronic communications be conducted?
The Third Issue of Principle
What reassurance should be provided to the complainant as to ambit of the review and the circumstances of any disclosure of material that is relevant to the case?
The Fourth Issue of Principle
What is the consequence if the complainant refuses to permit access to a potentially relevant device, either by way of “downloading” the contents (in reality, copying) or permitting an officer to view parts of the device (including, inter alia, copying some material, for instance by taking “screen shots”)? Similarly, what are the consequences if the complainant deletes relevant material?
Discussion and Guidance from the Court in relation to each of these issues
The First Issue of Principle: identifying the circumstances when it becomes necessary for the investigators to seek details of a witness’s digital communications and thereafter to disclose material to which they have access
At paragraph 67, the Court stated that there is no obligation on investigators to seek to review a witness’s digital material “without good cause”. Rather, there must be a proper basis, founded on the CPIA Code of Practice paragraph 3.5 (the reasonable line of enquiry” concept (paragraph 69 of the judgment) and the s.3 CPIA 1996 disclosure test (Paragraph 68 of the judgment).
At paragraph 70, the Court indicated its view that: “It is not a “reasonable” line of inquiry if the investigator pursues fanciful or inherently speculative researches. Instead, there needs to be an identifiable basis that justifies taking steps in this context. This is not dependent on formal evidence in the sense of witness statements or documentary material, but there must be a reasonable foundation for the inquiry”.
At paragraphs 70 – 75, the Court identified quotations from a number of pieces of precedent and official guidance to support this approach:
“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”.
- Attorney General’s Guidelines on Disclosure: Supplementary Guidelines on Digitally Stored Material (2011) at A 40 (replaced by, but annexed to, the current Attorney General’s Guidelines on Disclosure (2013) (see pages 4 and 18)
“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. The duty of the prosecution is to disclose material which might reasonably be considered capable of undermining its case or assisting the case for the accused which they become aware of, or to which their attention is drawn”
- The Judicial Protocol on the Disclosure of Unused Material in Criminal Cases (2013) at paragraph 47:
“[…] Victims do not waive… their right to privacy under article 8 of the ECHR, by making a complaint against the accused. The court, as a public authority, must ensure that any interference with the right to privacy under article 8 is in accordance with the law, and is necessary in pursuit of a legitimate public interest […]”.
- R v McPartland and another  EWCA Crim 1782;  1 Cr. App. R. (S.) 51
“It was suggested on behalf of the defence in the course of argument that it is now entirely usual practice in cases involving allegations of sexual assault, that the mobile phone of a complainant should be examined. This is not and should not be thought to be correct. What is a reasonable line of enquiry depends on the facts of each case”.
24. […] in reaching his decision to stay the prosecution, the judge did so on the basis that there was always a duty on investigators to seize and interrogate the phone of any complainant who makes an allegation of a sexual offence. […] For our part, however, we do not accept that the police were or are under such a duty. If the judge had made his finding on that basis then it may well have been that he did so based on an error of law which impacted on his own assessment of the position.”
Recognising the scale of the issue to be addressed, the Court made the telling observation, at paragraph 73, that a single mobile device now frequently contains an array of information that 40 years ago would have been found in hard copy in an array of locations as diverse as diaries, photograph albums, bank records, address books, and the contents of desk drawers, among others.
Seeking to offer a conclusion to its analysis of the First Issue of Principle, the Court ventured (at paragraph 77): “…we stress that regardless of the medium in which the information is held, a ‘reasonable line of enquiry’ will depend on the facts of, and the issues in, the individual case, including any potential defence. There is no presumption that a complainant’s mobile telephone or other devices should be inspected, retained or downloaded, any more than there is a presumption 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, as developed below, if there is a reasonable line of enquiry, the investigators should consider whether there are ways of readily accessing the information that do not involve looking at or taking possession of the complainant’s mobile telephone or other digital device. Disclosure should only occur when the material might reasonably be considered capable of undermining the prosecution’s case or assisting the case for the accused”.
The Second Issue of Principle: when a properly founded request is made, how should the review of the witness’s electronic communications be conducted?
If the first issue might be simply characterised as “when?” or “whether?”, the second issue might be equally shortened to the word “how?”, and it is this issue that the Court went on to consider, starting at paragraph 78 of the judgment, and going through to and including paragraph 88.
The Court started by recognising that discharge of an obligation identified under the First Principle need not always involve the surrender of an electronic device. It recognised that such a loss could in itself amount to an intrusion into the private life of the witness, regardless of the separate considerations of privacy as to the actual content.
At paragraph 78, the Court identified alternative ways that communications might be sought, depending on the issues in the case:
- Obtaining the communications from the suspect’s devices
- Review of complainant’s social media posts (on provision of a password) without the necessity to surrender the actual device
However, assuming that a need to review the actual device is identified, the Court then indicated (paragraph 79) that a further important question to consider would be whether review of a discrete part of the digital record will suffice. This might involve focussed questions or screen shots. The Court drew support for this approach from paragraph 5.1 of the CPIA Code, which allows for preservation of relevant material by a number of means, including copying.
The Court did issue, as if by way of counter-balance, a cautionary note at paragraphs 80 – 81, setting out that there will of course be cases where a physical examination of the full device is required, and that this requires a case by case assessment.
Paragraphs 82 – 85 seek to deal with the question of how a full device analysis should be conducted, making clear that in many cases it may well be appropriate to adopt electronic searches and data parameters rather than a page by page analysis. The Court cited the earlier judgment of the then President of the Queen’s Bench Division, Sir Brian Leveson, in the landmark case of R v R and others Practice Note  EWCA Crim 1941 as being supportive of the proposition that the law is prescriptive of the result, not the method.
Paragraph 86 underlines the importance of the Prosecution Disclosure Management Document and the “critical” role of the defence in engaging with that document in seeking to advance the interests of the accused person.
Paragraph 87 sets out the need for redaction of irrelevant but sensitive information.
Paragraph 88, by way of conclusion on this issue, sets out the need for an incremental approach by investigators. Although not expressed in such words, the message of the Court would seem to be that what is required is the minimum derogation from the privacy of the witness (and others) that is consistent with the proper discharge of the obligations of management of unused material and disclosure. The Court described the following three stage process:
“First, to 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 complainant’s mobile telephone or other device.
Second, and only if it is necessary to look at the complainant’s digital device or devices, 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.
Third, if a more extensive enquiry is necessary, the contents of the device should be downloaded with the minimum inconvenience to the complainant 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 should participate. It may be possible to apply data parameters to any search. Finally, appropriate redactions should be made to any disclosed material to avoid revealing irrelevant personal information”.
The Third Issue of Principle: what reassurance should be provided to the complainant as to ambit of the review and the circumstances of any disclosure of material that is relevant to the case?
At paragraphs 89 – 91 the Court first of all identified the need for complainants and witnesses to be both informed and reassured, and then set out principles of what can and should properly be said. In addition, the Court observed that certain explanatory materials presently provided might usefully be amended.
At paragraph 92, the Court expressed its view on this issue as follows:
In conclusion on the third issue and answering the question: “what reassurance should be provided to the complainant?”, the complainant should be told
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; and
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).
The Fourth Issue of Principle: what is the consequence if the complainant refuses to permit access to a potentially relevant device or if the complainant deletes relevant material?
The Court reviewed some earlier authorities, at paragraphs 93 – 98 of its judgment. These concerned the question of whether a stay of the proceedings would be required, or whether the trial process could adequately cure any unfairness. The authorities cited were:
- Warren A-G for Jersey  UKPC 10
- R v R.D.  EWCA Crim 1592
- R v PR  EWCA Crim 1225
The Court also noted (at paragraph 94) the possibility of an application for a witness summons. Criminal Procedure Rule 17.6 would allow the Court to assess the witness’s Article 8 rights (rights which were noted in the context of private medical records in R(B) v Crown Court at Stafford  EWHC 1645 (Admin)). However, the Court also noted the Respondent’s submission that it would only be in an exceptional case that such an application would be made by the prosecution. Interestingly, the judgment in the instant case is silent on the Court’s approach to a potential defence application.
The Court’s conclusions on the fourth Issue of Principle were expressed at paragraph 99 as follows:
“…it is important to look carefully at the reasons for a refusal to permit access and to furnish the witness with an explanation and reassurance as to the procedure that will be followed if the device is made available to the investigator. If it is suggested that the proceedings should be stayed, 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. The court should not be drawn into guessing at the content and significance of the material that may have become unavailable. 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. An application can be made for a witness summons for the mobile telephone or other device to be produced. If the witness deletes material, although each case will need to be assessed on its own facts, we stress the potential utility of cross-examination and carefully crafted judicial directions. If the proceedings are not stayed and the trial proceeds, 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”.
In relation to the First Issue of Principle (the question of “whether” or “when”) the Court’s judgment drew upon a number of well-established sources of law and guidance with regard to the twin topics of reasonable lines of enquiry and disclosure. Nothing in this judgment, it is submitted, runs in any way contrary to the “reciprocity” and “referability” concepts on which the CPIA (including its development over the years by case law and official guidelines, for example on disclosure) is based.
By “reciprocity” I mean the concept introduced into the CPIA that both prosecution and defence have disclosure obligations (pre – 1996 this only applied in relation to the defence in relation to alibi notices).
By “referability” I mean the concept that requests for lines of enquiry to be undertaken or disclosure to be made must be referable to issues raised in the Defence Statement or which can otherwise reasonably be foreseen by a conscientious prosecutor and investigator.
Rather, it is submitted, the effect of this judgment is to reinforce, quite strictly, the importance of those core principles, after a period of time in which for a variety of reasons, disclosure issues were often in the headlines (2017 – 2018) in the context of some well publicised cases, and during which there were a very wide variety of (perfectly legitimately held) views, on the part of both investigators, practitioners and judges, as to what the law required.
In relation to the Second Issue of Principle (the question of “How?”), my own view is that while there is a welcome three stage process that investigators must consider, the concept that each case will involve a substantial element of individual judgement puts a very significant responsibility on the investigator. The Court rightly notes that relevant material may be preserved in a variety of forms (for example copying or “screen shots”) but that of course pre-supposes a decision as to relevance (within its Code meaning – “Material which may be relevant to the investigation is defined in the Code of Practice as anything that appears to an investigator, or the OIC or the disclosure officer, to have some bearing on any offence under investigation or any person being investigated or on the surrounding circumstances, unless it is incapable of having any impact on the case”) and / or what constitute reasonable lines of enquiry. The prescribed approach, in my view, imposes a substantial need for training on investigators. In my view, paragraphs 65 – 99 of this judgment ought to be compulsory reading (and examination) material for all investigators and disclosure officers. The case specific and pro-active support of investigators by prosecutors and prosecuting advocates will certainly assist with this but cannot replace it.
For prosecutors, a thorough and well-drafted Disclosure Management Document, carefully tailored to the facts of the case, and amended as and when the issues in the case become clear, is only made even more essential by this judgment. The simple fact that representations are subsequently made by the defence which seek for the scope of enquiries to be widened will not in itself justify such a widening, but each request will need to be considered carefully on its merits, for the reasons identified in the next paragraph.
For defence practitioners, careful and early engagement with the Disclosure Management Document will be critical. Material not seized or examined may still be in existence at the time the DMD is first published but may no longer exist as the trial gets closer. Carpet bombing / pro forma shopping lists rarely assist, and the good points may be lost as the document (and its author) lose credibility. Better in my view to target the requests with care and with explicit reference to the issues as pleaded in the Defence Statement. If the prosecution make a conscious decision to refuse to pursue a line of enquiry, they may be called upon to justify that refusal in the context of an application to stay (in an extreme case) or an application to exclude evidence (s.78 PACE 1984) or in other legal argument relating to disclosure.
In relation to the Third Issue of Principle (assurances to the witness), I would simply add that any response by the witness to a request or provision of information may itself be disclosable, depending on what is said. The Court’s guidance does not purport to deal with the separate but knotty question of what happens when the Complainant / Witness’s device reveals to the investigator evidence of serious separate criminality by that witness. Depending on the content, it could be prima facie disclosable to the accused in the live case (for example evidence suggesting a propensity towards dishonest conduct e.g. fraud) while being sufficiently serious to warrant a separate free-standing investigation. Care would have to be taken to ensure that no inappropriate indications of immunity were given in the context of assurance as to disclosure in the present case.
In relation to the Fourth Issue of Principle (consequences of refusal of access, or deletion of material), the tenor and nuance of the Court’s judgment only re-affirms the well established principle that the grant of a stay is an exceptional remedy and that the trial process is often capable of mitigating prejudice to the accused, for example through cross-examination, defence comment and judicial direction.
Prosecutors may well wish to make appropriate use of the terminatory rulings provisions of the CJA 2003. Although the test is nominally quite a high one (the leading case is R v B (Judicial Discretion)  EWCA 1144 in which the Court of Appeal said that leave to appeal will not be given unless the case is seriously arguable not that the discretionary jurisdiction might have been exercised differently, but that it was unreasonable for it to have been exercised in the way that it was), the reality is that the Court of Appeal has, in fact, quite often intervened, particularly in the context of stays granted in relation to precisely these issues.
For defence practitioners, tactical thought may need to be given to an abuse of process application in appropriate cases. Of course, inarguable or very weak applications should not be made. Not only is the deliberate making of such applications contrary to professional codes of conduct, but they would cause diminution in the credibility of certainly the advocate and possibly the case. However, other cases may be genuinely more borderline. The tactical advantage of an abuse argument in such a case is not that it will necessarily succeed, but rather that it will force the judge to concentrate on how the trial process can cure the prejudice – for example tools such as s.78 etc., which brings you nicely on to your s.78 application…
Overall, this judgment provides some further welcome clarity to an area of practice which has experienced some challenges, generated in particular by exponential technological advances. Time will tell how investigators, practitioners and judges react to it.
Park Square Barristers
26th June 2020
Julian Jones is a specialist in serious and complex criminal cases, both for the prosecution and the defence. His specialisms include cases involving serious sexual allegations and cases involving the management of complex and sensitive unused material.