David Bruce represented the defendant on a recent trial where the Prosecution offered no evidence.
In a recent case at Minshull St Crown Court the prosecution ultimately offered no evidence. The defendant was charged with multiple counts of rape, assault and one count of controlling and coercive behaviour, over approximately five months. Upon arrest the defendant’s phone was seized, but the complainant’s phone was not retained or secured for evidential purposes. The complainant alleged that there were photographs on the phone depicting injuries to her body, caused by the defendant on various dates during their relationship. Further, it was stated by the complainant that she had taken photographs of injuries to her neck, as a result of non-fatal strangulation allegedly perpetrated by the defendant. She stated that the defendant took possession of the phone to delete the photographs of the neck injury and other injuries. The complainant screen shotted the photographs to the police officer’s phone. The complainant refused all other access to her phone including the prosecution and the defence.
The defence served two Defence Statements requesting that the complainant’s phone and download be examined for primary and secondary disclosure. The defence wanted the phone examined to see if material had been deleted and confirmed by recovery. The crown refused to issue a summons for the production of the phone, arguing that the were no “exceptional circumstances" relying on the case of R V BATER-JAMES and MOHAMMED [2020] EWCA 790.
It was further argued that the duties of disclosure did not apply as the phone and download were not in their possession. The defence issued their own summons for the production of the phone, the complainant was given the opportunity to attend and make representations, which she refused. The defence application was not successful. The complainant had expressed concerns that if information from the phone was passed to the defence the defendant would be able to trace her current location.
In an attempt to persuade voluntary access to the phone the OIC was tasked with explaining that only material that assisted the defence or undermined the prosecution case, would be disclosed and any sensitive material would be edited out before disclosure.
Having failed in the issue of the summons application, the defence applied to stay the indictment under both limbs. The crown having failed in their statutory duty to undertake primary and secondary disclosure. Further, the defence sought to exclude the unproven photographs of injury, under section 78 of the Police and Criminal Evidence Act.
The OIC returned to the complainant who then agreed to hand over the phone and for a download to be taken.
She sought to impose strict conditions that only the photograph gallery could be examined. She refused permission for her messages and social media communications to be examined. She signed a digital processing notice which had strict conditions.
The defence having served two defence statements made a section 8 application for disclosure. Under the Criminal Procedure and Investigations act 1996. The initial trial Judge was unable to hear the application.
The court found that the defence section 8 application was not strictly necessary, as once the phone was in the crown’s possession their duties under the act applied.
The crown, in a skeleton argument in opposition to the application, suggested that as the application for the production of the phone had been refused the defence were seeking to go behind this judgement. The defence position was that there was a clear change of circumstances as the phone and download were now in the crown’s possession. It was further argued that as the complainant had only given restricted and limited consent by the signed DPN, to go beyond her authorisation would be a breach of trust, potentially a breach of GDPR and an infringement of her right to privacy under Article 8 Human Rights Act. Without specific authorisation they were not in actual possession of the material on the phone or the download.
In giving judgement, the learned Judge stated that the credibility of the aggrieved person and her behaviour and the circumstances in which she was living were in his view absolutely central to the case.
In particular there was a count in the indictment alleging controlling and coercive behaviour. He ruled that the crown was clearly in possession of the phone and the acquired download. He further stated “the prosecution says the agreement as to limited access to the phone trumps any application for disclosure, plainly it does not. I find that the prosecution is obliged to review the material" He also ordered that the handset needed to be tested for deletion of the alleged material.
The learned Judge’s orders were conveyed to the complainant who was still adamant that her phone and the download should not be examined. She withdrew her support for the prosecution. The prosecution took the view under all the circumstances, that they would not witness summons the complainant as they would not ultimately seek to enforce the summons with an application for an arrest warrant.