In allowing an appeal against a terminating ruling, the Court of Appeal has provided helpful guidance in relation to the prosecution's duty of disclosure and the meaning of what constitutes a 'reasonable line of enquiry'.
The case concerned allegations that the defendant (who was the respondent to the appeal) had sexually assaulted his stepsisters. Although the police examined the defendant's phone and the phone of one of the complainants ('R'), they did not seize or otherwise obtain the mobile phone belonging to the other complainant ('EC').
The defendant contended that the police's ongoing failure to recover that phone, particularly after they had become aware of a message EC had sent to her father, was so serious that the defendant could not have a fair trial. The defence persuaded the trial judge that the proceedings should therefore be stayed as an abuse of process.
The prosecution appealed the decision. In the course of the submissions, the prosecution also sought to withdraw a concession that had been made during the trial. The trial advocate had conceded that there had been a breach of the police's duty to pursue all reasonable lines of enquiry at the point at which they still did not secure EC's mobile phone after they became aware of the text message to the father.
The Court of Appeal's decision
The Court of Appeal ruled that the prosecution would not be permitted to take the exceptional step of withdrawing the concession. In so concluding, the Court echoed earlier cases where it had remarked upon the undesirability of the prosecution taking a different position on appeal to the one that had been argued before the lower Court.
The Court of Appeal nevertheless concluded that the judge, in granting the application for a stay, reached a conclusion which was not reasonably open to him. The Court of Appeal remarked on a number of aspects of the case:
- The Court did not accept that it was legitimate to infer from the text message sent by the complainant to her father, that it was likely that the phone would hold material relevant to whether the sexual assaults had taken place.
- Nor did the Court think that the content of the message gave rise to a conclusion that the text was undermining;
- There was no evidence to doubt EC's assertion that she had not spoken to anyone about the assaults;
- Messages between the two complainants were available on R's phone, which had been retained, and there was no suggestion that any of those supported the defence case of collusion and false complaint.
- The fact that mobile phones play such a prominent part in our daily lives is unlikely, in and of itself, to provide a basis for the assertion that the police must therefore obtain and review such items as a matter of course;
- The judge had commented on issues that were not relevant to the question of whether a fair trial was possible: these should have played no part in the abuse decision; and
- The trial process – through a combination of cross-examination and directions to the jury – was capable of mitigating the impact of any perceived unfairness.
Lessons for the future
The Court of Appeal endorsed the Crown Prosecution Service's 'A Guide to "reasonable lines of enquiry" and Communications evidence', published in July of this year. In doing so, it chose to emphasise that the Guide does not say that mobile phones should be examined as a matter of course in every case.
The Court was at pains to clarify that their decision not to allow the prosecution to withdraw the concession was not the same as concluding that it was correctly made. The Court expressed doubt as to whether the police would have had a sufficient evidential basis to seize EC's phone, had that been required of them at the time. The conclusion that a fair trial was possible meant that it was unnecessary to resolve this or indeed the wider question of what steps the police could have taken to obtain the information even if they could not exercise a compulsory power of seizure.
From the prosecution's perspective, whilst the Court's endorsement of the CPS's Guide is helpful, prosecutors will still be faced with difficult case decisions to make, each of which will turn on its own unique facts. Disclosure should be approached by prosecutors in a 'thinking way' that reflects properly and fully the relevant guidance, the underlying legislative scheme and the circumstances of the particular case. Defence practitioners should hold prosecutors to those standards.
The immense increase in the availability of information and personal data makes it certain that this will continue to be a challenge.