Handling Digital Data in an Era of Austerity: Effective Approaches to Be Taken by the Defence

Handling digital data in an era of austerity: effective approaches to be taken by the defence

 

Introduction
“Disclosure of evidence is crucial for ensuring the public’s confidence in the police and in our criminal justice system.”[1] This report will analyse several ways in which defence counsel can deal with handling a mass of digital data in fraud cases and a lack of digital data in sexual offences cases whilst taking into account recent disclosure failures. Useful keyword searches in fraud cases will be explored and the newly introduced consent form for complainants will be examined in order to inform defence counsel how to make requests for digital disclosure, and what to do when consent is refused. 

 

Background on consent forms
The concept that the police can request to review complainant’s personal records is nothing new, access to educational records, medical records and social services records in rape and sexual assault cases has often been granted through documents known as Stafford statements.[2] Prior to the use of Stafford statements, access to a complainant’s digital device was historically obtained informally through verbal consent.The new national consent form that was introduced in England and Wales on the 29^th of April 2019 by the National Police Chiefs Council, the Crown Prosecution Service and the College of Policing attempts to distil the previous practice of the police by replacing the individual versions that each of the 43 police forces used with a more uniform approach to asking alleged victims of crime for permission to access information such as messages, e-mails and photographs.[3] The new consent form states, “if you refuse permission for the police to investigate, or for the prosecution to disclose material which would enable the defendant to have a fair trial then it may not be possible for the investigation or prosecution to continue.”[4] The intention of the new consent form has been described as a way of ensuring that there is consistency and clarity for complainants. To maintain such consistency the police must consider on a case-by-case basis what is a reasonable line of enquiry and avoid unnecessary intrusion into a complainant’s personal life[5] in order to strike the balance between conducting a diligent investigation to maintain the accused’s right to a fair trial and protecting a complainant’s privacy. The inspection should take place at the earliest opportunity and the extraction of data should be proportionate.[6] The police should only make requests for mobile phone data or other digital data when it is relevant and so the main issue for the defence in getting access to digital data is usually relevance. It follows that there is no requirement for the police to take the media devices of a complainant in the case of an alleged sexual offence committed opportunistically by a stranger.[7]

On the 29^th April 2019 in the House of Commons Anna Soubry MP, the party leader of Change UK asked Rt Hon Nick Hurd MP, the Minister of State for Policing and the Fire Service whether he would make a statement on requests by the police for alleged victims of rape to provide their mobile phone and other digital devices. In response, Rt Hon Nick Hurd MP told the House “there is widespread recognition that disclosure in criminal cases must be improved.” Anna Soubry MP urged the minister to withdraw the document, opining that it deters “victims of rape in particular from coming forward”.[8] There has been widespread debate in support of this argument by Anna Soubry MP and also in support of the argument that if there were to be a greater restriction of access to digital devices in this day and age, that the process ensuring improvement of disclosure would be undermined. A suspect can be prosecuted (and sentenced to a maximum of 2 years imprisonment or 5 years imprisonment for an offence involving national security or child indecency) if they fail to comply with a notice given by the police by withholding the password to their mobile phone (or other digital device) in circumstances where the phone has been seized or where the police have the power to inspect it.[9] This power highlights the potential consequence suspects face in comparison to complainants who withhold access to devices. Regardless of the conflicting views on this matter, there are several avenues which defence counsel may take when consent is refused.

What to do when consent is refused: approaches that might work

1. What to include in defence statements

Indicating in the defence statement the matters of fact on which the accused takes issue with the prosecution and setting out, in the case of each such matter, why he takes issue with the prosecution (among other requirements) is a statutory obligation on the defence[10] which may trigger subsequent disclosure by the prosecution. This is because the prosecution must consider any defence statement thoroughly, even if it points to other lines of enquiry.[11] It is widely known that if the prosecution takes the view that no further material is disclosable, this will be because it does not satisfy the test for disclosure (i.e. the material doesn’t undermine the prosecution case or assist the defence)[12] and in that case there is no requirement to disclose it. However, if the defence are of the view that the prosecution possess evidence that should be disclosed they could consider making an application to the court for specific disclosure under section 8 of the Criminal Procedure and Investigations Act 1996 (‘CPIA 1996’). The courts should be prepared to give orders and directions even at the initial disclosure stage in order for the disclosure process to be expeditious.[13]

The defence statement must be clear, detailed and specific.[14] Although practitioners may wish to keep defence statements relatively short, a short statement unlikely to cause disagreement may be insufficient to trigger any obligation on the prosecution to give further disclosure under section 7A of the CPIA 1996.[15] In light of the complainant’s refusal to hand over digital data, the defence may posit in their defence statement something along the lines of, “it must be right that the prosecution now takes a statement from the complainant setting out the reasons for their refusal as the defence cannot reasonably be expected to blindly cross-examine on that matter”. Technically, this is a request for the service of further evidence and consequently, the rule that the prosecution must only disclose material in their possession becomes somewhat warped. In lieu of requesting access to digital devices, a request may also be made for other material such as social media updates. It is crucial to think creatively to find other ways in which to access potentially vital evidence.

Under section 5 of the CPIA 1996, once a case is sent to the Crown Court and the prosecution case is served, it is compulsory for the accused to give a defence statement to the court and the prosecution. The defence statement must be served within 28 days of the prosecution’s compliance (or purported compliance) with the duty of initial disclosure.[16] The defence may apply for an extension, but the application must be made before the deadline expires.[17] The right to further disclosure is not lost if there is a short delay in serving the defence statement.[18]

 

Defence statements in summary trials in the magistrates’ court are not compulsory, however, if they are not served the accused is unable to make an application for specific disclosure and the court cannot make any orders for disclosure of unused prosecution material. [19] Where the accused chooses to serve a defence statement he must do so within 14 days from the date on which the prosecution complies (or purports to comply) with their initial duty of disclosure.[20] If the accused provides a defence statement, the requirements set out in section 6A of the CPIA 1996 as to the contents of the statement apply.
 

2. Making an abuse of process application

If the complainant does not consent to handing over the digital data requested, the defence could make an abuse of process application. Where an abuse argument is anticipated, notice that an argument will be made (or a statement to that effect) would be required insofar as the defence must set out anticipated issues of law in the defence statement. The courts inherent jurisdiction to ‘stay’ an indictment (or stop a prosecution in the magistrates’ court) is to be exercised only in exceptional circumstances as a remedy of last resort[21] because there is a strong public interest in the prosecution of crime.[22]

An abuse of process application can be brought under one of two limbs:[23]

1. where it will be impossible to give the accused a fair trial; or
2. where it offends the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case (this concerns the protection of the integrity of the criminal justice system and can be relied upon irrespective of the fairness of the trial itself).[24]

An abuse of process argument may be made if there was a failure to obtain digital evidence or where digital evidence was lost or destroyed.[25] If evidence that would have been helpful to the defence could have been seized by the police but now cannot be obtained, then the application falls under limb 1. If the police had material but maliciously destroyed it, then the application would fall under limb 2 because even though the defendant could get a fair trial, it would be unfair to try him as it offends the sense of justice and arguably would bring the administration of the criminal justice system into disrepute.[26] The leading case of Ebrahim[27] sets out the starting point to be considered in circumstances where evidence has been lost, failed to be obtained or destroyed, which is whether there was a duty on the investigator to obtain and/or retain the material in question.[28] If they were under no such duty to obtain or retain the evidence in question, there can be no grounds to stay the proceedings for failure to do so, as it cannot be said that they are abusing the process of the court merely because the material is no longer available. If there was a breach of duty, there generally has to be either an element of bad faith, or at the very least some serious fault on the part of the police or the prosecution authorities. Furthermore, it has to be clear that the accused could not be fairly tried.[29]

In the case of R v E,[30] the first instance court stayed proceedings after ruling the failure to seize a mobile phone belonging to one of the complainants meant the defendant could not have a fair trial. The Court of Appeal granted the prosecution appeal quashing the terminatory ruling, emphasising that seizing a phone is not automatically a reasonable line of enquiry in every case and that there was no evidence that material from one of the complainant’s phones had been deliberately erased or eliminated, meaning that a fair trial would have been possible.
 

In DPP v Fell,[31] Lord Justice Gross set out the principles relevant to cases involving lost evidence, which is that the court must necessarily decide “whether the defence have shown, on the balance of probabilities that, owing to the absence of the relevant material, the defendant would suffer serious prejudice to the extent that a fair trial could not take place”.In this case, the erasure of CCTV footage of the incident and inconsistencies in witness evidence as to what actually occurred did not mean that it would be impossible for the accused to have a fair trial, or that he would suffer serious prejudice to a degree warranting granting a stay.

Following a failed abuse argument in the Crown Court, an appeal against conviction can be made to the Court of Appeal,[32] and in the magistrates’ court to the High Court by way of case stated or judicial review, or to the Crown Court.[33]

3. Seeking a direction from the judge

If an abuse of process argument fails, the defence may request of the judge an appropriate direction to the jury which conventionally points out the disadvantage the defence might be under caused by the absence of digital material,[34] and direct the jury to take that into account when applying the burden and standard of proof.[35]

It is a matter of good practice for defence counsel to assist the court by drafting the direction they respectfully ask the judge to give the jury. Drafting such a direction demonstrates that the defence have an appeal strategy. It is useful to make clear at an appeal that a proposed direction was asked for and not given. A proposed direction in a case concerning withheld evidence could infer that the complainant is lying or that the withholding of digital data is demonstrative of the fact that they have something to hide. In many ‘missing evidence’ cases, the defence will be able to make use of the absence of that evidence, arguing that its absence should help to create a reasonable doubt in the minds of the jury or magistrates as to the guilt of the accused.[36]

In the case of R v SR,[37] the complainant’s phone was taken by the police and later handed back to her. It was unknown whether the phone was examined or what evidence the phone contained because no record was made. It was said that the absence of the phone was relevant in that it contained communications between the defendant and complainant which took place in the build-up to the allegations, information from the complainant commenting on her friends and family and a wish to find her way out of the family home and evidence which would engage section 41 of the Youth Justice and Criminal Evidence Act 1999 (‘YJCEA 1999’), namely the complainant’s behaviour with other males at the material time. The Court of Appeal concluded that the appellants convictions were safe. Reference was made to the directions given by the judge at first instance which included the following, “as a result of the delay, material has been lost. That is not a unique situation in cases where allegations are made about behaviour said to have taken place a long time ago. But it is something you must be aware of and make allowance for.”
 

4. Putting pressure on the Crown

The defence may wish to put pressure on the Crown by notifying the court that there are disclosure duties which the prosecution cannot fulfil or that there have been ongoing disclosure issues. Defence counsel could ask the judge whether they have seen the letters produced by the defence solicitor (if applicable) setting out reasons as to why the charges against the defendant should be dropped (known as ‘making representations’) and refer them to such correspondence if they have not. It is usually the case that once representations have been made, the solicitors will continue to make further representations. The defence may also inform the court that they will be making an abuse of process application or applications under section 78 of the Police and Criminal Evidence Act 1984 (‘PACE 1984’). Putting pressure on the Crown to dismiss the case is not a formal application in itself.

Cases that have collapsed
 

A spotlight was shone on the consent form procedure following the discontinuance of a number of rape and sexual assault cases caused by the late disclosure of critical material. The types of cases which are usually discontinued involve a history between the defendant and complainant. This history makes it more likely for there to be relevant evidence concerning their relationship stored within mobile phone messages between them which have not been disclosed either due to a failure or refusal.

In 2017, Student Liam Allan’s notorious trial for rape and sexual assault collapsed when the Crown offered no evidence against him after the police were ordered to disclose phone records.[38] The download record of the complainant’s mobile phone revealed that she had continued to pester him for casual sex after he had ended their relationship. The investigating officer previously and consistently assured both the CPS lawyers and prosecution counsel that the complainant’s phone contained nothing relevant to warrant it being served on the defence. The prosecution did not challenge this claim.[39] A joint review by the Metropolitan Police Service and CPS London South Area of the disclosure process in the case of Allan followed. The main finding was that “there is no evidence that the phone download was withheld deliberately by the police officer in charge of the investigation or CPS prosecutors. The disclosure problems in this case were caused by a combination of error, lack of challenge and lack of knowledge.”[40]

 

A number of cases followed in which the Crown offered no evidence against the accused.These include the cases against Isaac Itiary, Oliver Mears, Connor Fitzgerald and Petruta-Cristina Bosoanca.Isaac Itiary was charged with rape and sexual activity with a child. Material that undermined the prosecution’s case was recovered from the complainant’s mobile phone and handed over to the defence lawyers after repeated requests for the material. The mobile phone evidence revealed that the complainant had routinely posed as a 19-year-old.[41]Oliver Mears was charged with rape and was on bail for 2 years.Surrey police handed over relevant social media material days before the trial began.In a statement Surrey police admitted errors and said, “we accept that there were flaws in the initial investigation. It was not expedient and the investigator did not examine the victim’s digital media during the initial stages of the investigation or follow what we would consider to be a reasonable line of enquiry.”[42] In the case against Connor Fitzgerald for rape, the late disclosure of text messages from the complainant demonstrated that she had threatened that she was going to ruin his life.Days after the start of the trial in the case of Petruta-Cristina Bosoanca who was charged with trafficking a Romanian prostitute to Britain, the prosecution disclosed a medical record of the complainant and a vast amount of social media messages which undermined the complainant’s account of being brought to Britain to work as a prostitute and that she became pregnant as a result of being raped.

The above cases concern the issue of late disclosure which either destroyed or significantly undermined the complainant’s credibility. A useful example of a case involving non-disclosure as opposed to late disclosure is the case of R v Kay,[43] in which the defendant was convicted of rape. After fresh evidence came to light, the Court of Appeal on an appeal out of time (more than 2 years later) quashed the conviction. The fresh evidence found on the defendant’s computer comprised of an exchange of messages on Facebook between the defendant and complainant after they had engaged in sexual intercourse. The complainant had previously deleted the Facebook messages before the trial which meant that the jury were presented with a misleading exchange of messages. The full exchange of messages supported the defendant’s account of consensual sex and significantly undermined the complainant’s account of rape.[44] Practitioners should be cognisant that mechanisms and technologies can allow for reconstruction of digital evidence. There is a vast amount of data recovery tools used by computer forensic experts for the purposes of recovering destroyed data. ‘EnCase forensic’ and ‘PowerQuest Lost & Found’ are examples of recovery tools available on the open market. Recovery tools can make extensive recovery possible even if a computer disk has been reformatted.[45] It becomes even more important to use specialist tools if it is suspected that the owner of a computer is technically sophisticated and may have sought to hide parts of the hard disk from normal scrutiny.[46]

Following the ‘#MeToo’ movement, the case in US against Kevin Spacey for sexual assault in July 2019 was discontinued by the prosecution after the complainant said he lost his mobile phone which was used on the night of the alleged sexual assault. In his testimony, the complainant denied deleting or altering any messages but decided to stop testifying about the missing mobile phone during a line of questioning from Spacey’s lawyer about whether he was aware that tampering with evidence is a crime. The defence argued that the mobile phone contained deleted messages that could be recovered that would support Spacey’s defence.[47] This case shows that despite whether the loss of digital data was intentional or not, the defence can argue if instructed by the accused, that the absent material would have been essential to the case in proving the defendant’s innocence, although in this case, the distinction in law between the UK and the US meant the complainant was able to invoke the Fifth Amendment.

Many historic sexual offence cases will be unaffected by the complainant’s refusal or the police/prosecutions failure to disclose evidence from mobile phones as such devices were not relied upon as much or even available at the time the crimes were alleged to have been committed. This issue will undoubtedly reoccur in future cases and so it is a point worth being mindful of. It is evident that credibility in sexual offence cases is an overwhelming issue which has highlighted major problems in police investigations and prosecution disclosure exercises.

Although not as widely discussed by the public, disclosure failures have also occurred in cases involving offences other than sexual offences. Earlier this year, the Crown were forced to offer no evidence in a case at Southwark Crown Court for conspiracy to defraud (which was valued to be in excess of £3,500,000) through the selling of carbon credits and diamonds as alternative investments. Several e-mails were provided to the defence following numerous disclosure requests. The e-mails exhibited communications between the supposed expert witness and the investigating officers, which undoubtedly assisted the defence case as they revealed that the police had not disclosed information about another prosecution expert in this case (a diamond expert) previously being discredited in another similar case and that the police had also been directing other witnesses as to what should be specified in their reports. HHJ Lorraine-Smith made the following observation, “the state of the disclosure in the case was such that it was incapable of being remedied”.[48] Crucially, the state of disclosure was irreparable as the incompetency of the expert was raised a month into the trial. This case demonstrates how vital electronic data can be to the defence and how a failure in disclosure of such material can lead to the prosecution having no option but to offer no evidence in a case.

5. Apply to exclude evidence of the complainant 

The defence could apply to exclude evidence of the complainant to which for example the text messages relate (messages that were not disclosed due to the complainant’s refusal or being lost) under section 78 of PACE 1984 as having such an adverse effect on the fairness of the proceedings that the court ought not to admit it. If as defence counsel the accused says there is evidence that would completely exonerate him/her and the complainant has provided an unsatisfactory reason for not disclosing that evidence, then an application to exclude all of the complainant’s evidence on the same basiscan be made. This route may be ambitious and unlikely to succeed in most cases, nonetheless it is an approach the defence may take if there is lost or concealed evidence which could lead to an acquittal. It could also put pressure on the Crown to trigger subsequent disclosure.
 

6. Cross-examine the complainant on refusal

As mentioned above, the defence statement could set out that a statement from the complainant explaining the reasons for their refusal is needed before cross-examination of the complainant takes place. The defence may cross-examine the complainant on their refusal to hand over digital data if it is relevant to do so. This course may be problematic where it involves reference to the complainant’s past sexual history. If the complainant obliquely refers to their personal sexual life as a reason for withholding digital data this may be an appropriate route for the defence to take.

Section 41 of the YJCEA 1999 is a rule of evidence relating to sexual offences cases which restricts evidence or questions about a complainant’s past sexual history by or on behalf of the accused subject to exceptions and leave of the court. Any application by the defence (s.41 does not apply to the prosecution) to adduce evidence relating to a complainant’s past sexual history must be in writing and must be made as soon as reasonably practicable after becoming aware of the grounds for doing so, and in any event not more than 14 days after the prosecution discloses material on which the application is based.[49] The application must identify the issue to which the defendant says the complainant’s sexual behaviour is relevant and give particulars of any evidence that the defendant wants to introduce, the questions that the defendant wants to ask (in writing, either in the written application or at the hearing in private) and the particular gateway(s) relied upon.[50]

NB: This process must also be followed if the complainant consents to handing over their digital data, this is because the process set out in section 43 of the YJCEA 1999 encapsulates circumstances where data suggests a long list of previous sexual relationships. The complainant’s consent to hand over a device does not result in an automatic entitlement to adduce evidence of the complainant’s past sexual history which was discovered on the device.[51]

Making use of technology
Devices such as mobile phones, computers, laptops and iPads can all store substantial amounts of data. That data (including data that has been deleted but is retrievable) can be extracted and analysed with technology such as that supplied by Cellebrite, MSAB and Radio Tactics which are available in numerous police stations.[52] In the fraud case against Michael Richards, Robert Gold, Rodney Whiston-Dew, Jonathon Anwyl and Evdoros Demetriou, the digital material seized as part of the investigation comprised of approximately 7 terabytes of data which equates to around 5 million electronic documents and files.[53] This expresses how difficulties can arise in relation to timely disclosure and the analysis of mass digital data for both the prosecution and the defence.

 

Keyword searches
 

Keyword searches are useful in criminal cases involving mass data as they can be an efficient way to discover vital information and enable a reasonable, proportionate and prompt search of the material without having to trawl through documents one by one. In cases containing thousands of documents, e-disclosure software can make it possible to discover whether any material is duplicated so that time and money spent by the parties reviewing duplicated documents can be avoided.
 

Due to the nature of fraud cases, they tend to be the kind of cases where material is voluminous. The Attorney General’s Guidelines on Disclosure notes that the increase in the use of technology in recent years means that large quantities of digital material will routinely form part of Crown Court cases, and that it is not expected that every item of digital material is examined individually[54] as it could cause the process to become excessively time consuming, uncontrollable or even impossible.[55]
 

In fraud cases (especially when dealing with large-scale digital disclosure exercises),[56] it is important for counsel in the case to consider the Judicial Protocol on the Disclosure of Unused Material in Criminal Cases, dated December 2013 (which replaces the Lord Chief Justice’s Protocol on the Control and Management of Heavy Fraud and Other Complex Criminal Cases, dated 22^nd March 2005). The Judicial Protocol sets out the principles to be applied to disclosure, the expectations of the court and its role in disclosure and the consequences if there is a failure by the prosecution or defence to comply with their obligations.[57] 

When a mobile phone is downloaded the content can amount to hundreds of thousands of pages containing vast amounts of individual lines of digital data. For example, in the case of Liam Allan, the complainant’s mobile phone contained over 57,000 lines of message data.[58] Using keywords to search through material in order to locate relevant passages, phrases and identifiers is common practice by investigators/disclosure officers. If search tools are used, the method and words used should be recorded and the prosecution and defence informed. In cases involving large-scale digital disclosure exercises, at the stage of initial disclosure, the prosecution should produce a Disclosure Management Document identifying the overall disclosure strategy, the selection of software tools and a proposal of search terms to be applied, material that is subject to legal professional privilege (more apt to cases concerning fraud) and a means of addressing potential privilege issues.[59]

It is usually appropriate for the prosecution to provide the accused and their legal representative with a copy of ‘reasonable search terms’ used, or to be used, and invite them to suggest any further reasonable search terms. Particularly in the larger and more complex cases, the court will require the defence to contribute to the search terms to be used for the review of any electronically held material.[60] If the investigator or prosecution counsel believes that the search terms suggested by the accused or their legal representative are ineffective, for example because the search terms are likely to identify an abundance of irrelevant material, prosecution counsel or the investigator is entitled to communicate this to the defence representative with a view to agreeing sensible refinements to ensure that the searches are reasonable and proportionate. Searches may necessarily need to be carried out multiple times as there is an ongoing duty on the prosecution to keep disclosure under review.[61] Defence counsel may also wish to use keyword searches themselves as a way of efficiently analysing documents in their possession, perhaps in efforts to build a case against a co-accused or to scrutinise the defence case in order to be prepared for potential arguments by the prosecution.
 

Useful fraud searches

 

A joint project between Ernst & Young and the Association of Certified Fraud Examiners found that particular keywords in employee e-mails may indicate the presence of fraud. An analysis of data from corporate investigations undertaken by Ernst & Young’s Fraud Investigation and Dispute Services Practice revealed that the fifteen most common fraud phrases in order of commonality are “cover up”, “write off”, “illegal”, “failed investment”, “nobody will find out”, “grey area”, “they owe it to me”, “do not volunteer information”, “not ethical”, “off the books”, “backdate”, “no inspection”, “pull earnings forward”, “special fees” and “friendly payments.” The investigative specialist anti-fraud software used to monitor suspect conversations also revealed that common phrases in e-mail conversations where rogue employees are under pressure include, “not comfortable”, “want no part of this”, “don’t leave a trail” and “make the number”. Conversations involving rationalisation include “told me to”, “not hurting anyone”, “won’t miss it” and “fix it later”. Other common terms indicating fraud include “call my mobile”,[62] “off balance sheet transactions” and “pull earnings forward”.[63]

This information could be useful to prosecution counsel who are trying to build or strengthen a fraud case against the accused, but it can be equally as useful to defence counsel who are researching through bulk data using e-disclosure software in efforts to discover any potential underhand dealings made by co-defendants. On the face of it, it appears that the joint project between Ernst and Young and the Association of Certified Fraud Examiners would not be admissible at trial as expert evidence because it has not been produced by a recognised body of expert evidence nor has it been rigorously accredited and hence not strictly reliable.[64] Essentially, it is a single unproven methodology.[65] However, the keyword search terms could be useful for case preparation and could potentially be put forward by the defence when the prosecution invite them to suggest further reasonable search terms.

Conclusion

The intention of this report is to inform defence counsel how to proceed when they are faced with a vast amount of digital data in fraud cases and a lack of digital data in sexual offence cases in circumstances where a complainant has refused to allow the police to inspect their digital device(s) for the purpose of aiding an investigation. This report delves into the utilisation of efficacious search terms in order to extract incriminating data in fraud cases in efforts to save time and expenses. Recent disclosure failures have also been explored which demonstrates how paramount prompt disclosure by both the prosecution and defence is.

 

Words from the DPP

 

“I can’t overstate the importance of ensuring that relevant information gathered during a police investigation that is not used at trial is made available to defence teams. In any case in which an issue is raised about disclosure whether pre-trial, during the trial or post-trial, we are committed to looking into that to find out if there is anything that is hidden.”[66] “There has been unprecedented joint commitment to this issue over the last year. But this is a system-wide issue and it will not be solved overnight.”[67]

Bibliography

 

Primary Recourses

UK legislation

• Criminal Procedure and Investigations Act 1996, ss 5, 6A, 7A, 8, CPIA 1996, Part II Code of Practice, s 23
• Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011, reg 2
• Data Protection Act 2018
• Freedom of Information Act 2000
• Human Rights Act 1998, arts 6, 8
• Magistrates’ Courts Act 1980, s 108
• Police and Criminal Evidence Act 1984, s 78
• Prosecution of Offences Act 1985, ss 23, 23A
• Regulation of Investigatory Powers Act 2000, s 49
• Sexual Offences Act 2003
• Youth Justice and Criminal Evidence Act 1999, ss 41, 43
   
• International treaties
  Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) 1950, arts 6, 8
   
• Eu legislation
  General Data Protection Regulation [2016] OJ L119/1/65
   
• Cases
  Attorney General’s Reference (No.1 of 1990) [1992] QB 630 (CA)
• Attorney General’s Reference (No.2 of 2001) [2004] 2 AC 72 (HL)
• Attorney General’s Reference (No.3 of 2000) [2001] UKHL 53, [2001] 1 WLR 2060
• Crawley [2014] EWCA Crim 1028, [2014] 2 Cr App R 16
• DPP v Fell [2013] EWHC 562 (Admin)
• DPP v Wood [2006] EWHC 32 (Admin), (2006) 170 JP 177
• Le Brocq v Liverpool Crown Court [2019] EWCA Crim 1389, [2019] 4 WLR 108
• Murphy v DPP [2006] EWHC 1753 (Admin)
• R v B [2008] EWCA Crim 1144
• R v Bloomfield (Mark Andrew) [1997] 1 Cr App R 135 (CA)
• R v Bryant (Patrick) [2005] EWCA Crim 2079
• R v DL [2019] EWCA Crim 1249
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• R v Galbraith (George Charles)  [1981] 2 All ER 1060 (CA)
• R v Great Yarmouth Magistrates Ex p. Thomas, Davis and Darlington [1992] Crim LR 116 (Dv Ct)
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• R v Kay [2017] EWCA Crim 2214
• R v Malcolm (Wayne Patrick)  [2011] EWCA Crim 2069, [2012] Crim LR 238
• R v Mullen [2000] QB 520 (CA)
• R v Newell (Alan) [2012] EWCA Crim 650, [2012] 1 WLR 3142
• R v P [2019] EWCA Crim 1247
• R v R [2015] EWCA Crim 1941, [2016] WLR 1872
• R v Rochford [2010] EWCA Crim 1928, [2011] 1 WLR 534
• R v Shah (Kalime) [2002] EWCA Crim 1623
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• R v Stafford Crown Court [2006] EWHC 1645 (Admin), [2001] 1 WLR 1524
• R v Telford Justices Ex p. Badhan [1991] 2 QB 78 (Div Ct)
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• Various Claimants v Sir Robert McAlpine [2016] EWHC 45
• Woolmington v DPP [1935] AC 462 (HL)

• Rules and Protocols
  Criminal Procedure Rules 2015 SI 2015/1490, part 15, r 22.4, PD-protocol Control and management of heavy fraud and other complex criminal cases (22 March 2005)
• Judiciary of England and Wales, Judicial Protocol on the Disclosure of Unused Material in Criminal Cases (Judiciary of England and Wales December 2013)

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• Attorney General’s Office, Attorney General’s Guidelines on Disclosure for Investigators, Prosecutors and Defence Practitioners (Attorney General’s Office December 2013)
• Attorney General’s Office, Review of the efficiency and effectiveness of disclosure in the criminal justice system (Attorney General’s Office November 2018)
• Bar Standard’s Board, The Preparation of Defence Statements (BSB 9 March 2011)
• HC Deb 20 July 2018, vol 859
• HC Deb 29 April 2019, vol 659
• Judiciary of England and Wales, The BETTER CASE MANAGEMENT (BCM) Handbook (Judiciary of England and Wales January 2018)
• Metropolitan Police Service and CPS, A joint review of the Disclosure Process in the Case of R v Allan: Findings and Recommendations for the Metropolitan Police Service and CPS London (Metropolitan police Service and CPS January 2018)
• Metropolitan Police Service and CPS, ‘Freedom of Information Request Reference No:’ (Metropolitan Police Service)<https://www.met.police.uk/SysSiteAssets/foi-media/metropolitan-police/disclosure_2018/august_2018/information-rights-unit—copy-of-stafford-statement-documents-given-to-complainants-in-rape-and-gbh-cases>accessed 12 September 2019
• Ministry of Justice Fraud Protocol, ‘Control and management of heavy fraud and other complex cases- Criminal Procedure Rules’ (Ministry of Justice, 22 March 2015)<www.justice.gov.uk/courts/procedure-rules/criminal/pd-protocol/pd_protocol>accessed 1 September 2019
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Books

• Archbold J F, Archbold Criminal Pleading, Evidence and Practice (67th edn, Sweet & Maxwell 2019)

• Casey E,Digital Evidence and Computer Crime (2nd edn, Academic Press 2004)
• Francis P, Rook & Ward on Sexual Offences: Law & Practice (5th edn, Sweet & Maxwell 2016)
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• Martin J and Turner C, Unlocking Criminal Law (2nd edn, Hodder Education 2007)
• Ormerod D, Perry D, HHJ Murphy P (eds), Blackstone’s Criminal Practice (OUP 2019)

 

Journal Articles

• Dennis I, ‘Prosecution Disclosure: are the Problems Insoluble?’ [2018] Crim LR 829
• Forster S, ‘Undisclosed Evidence in Criminal Proceedings: Part 2’ (2018) 182 JPN 250
• Fouzder M, ‘News Focus: In the spirit of Full Disclosure’ [2018] LSG 8
• Fouzder M, ‘Up Front: Lawyers Split on Digital Disclosure’ (2019) LSG
• Hayes J and Aspinal-Miles M, ‘R v E and the Great Disclosure Debate’ [2019] Counsel 2019, 32
• Hoyano L, ‘Cross-examination of Sexual Assault Complainants on Previous Sexual Behaviour: Views From the Barristers’ Row’ [2019] Crim LR 77
• Hungerford-Welch P, ‘Abuse of Process: R. v E’ (2019) 2 Crim LR 151
• Leahy S, ‘Too Much Information? Regulating Disclosure of Complainants’ Personal Records in Sexual Offence Trials’ [2016] Crim LR 229
• Rumney N.S P and Fenton R.A, ‘Rape Defendant Anonymity and Evidence-Based Policy Making’ (2013) 76 MLR 109
• Scorer R, ‘Unravelling the Legacy of Abuse’ (2018) 168 NLJ 13
• Smith T, ‘The ‘Near Miss’ of Liam Allan: Critical Problems in Police Disclosure, Investigation Culture and the Resourcing of Criminal Justice’ [2018] Crim LR 711
• Sommer P, ‘Evidence in Internet Paedophilia Cases’ [2002] CTLR 176

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• Big Brother Watch, ‘Police Access to Digital Evidence’ (Big Brother Watch, November 2017)<https://bigbrotherwatch.org.uk/wp-content/uploads/2017/11/Police-Access-to-Digital-Evidence-1.pdf>accessed 22 May 2019
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• Buckland R, ‘Sexual Offences: Prosecutions: Written question-177585’ (Parliament.uk, 19 October 2018)<www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2018-10-10/177585/>accessed 20 May 2019
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• Hymas C, ‘Men May Have Been Wrongly Jailed Because of Withheld Evidence, Head of CPS Concedes’ (The Telegraph, 13 November 2018)<www.telegraph.co.uk/news/2018/11/13/men-may-have-wrongly-jailed-withheld-evidence-head-cps-concedes/amp/?__twitter_impression=true>accessed 4 September 2019
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[1] HC Deb 29 April 2019, vol 659, col 1.

[2] Big Brother Watch, ‘Justice Committee: Disclosure of Evidence in Criminal Cases Inquiry’ (Big Brother Watch, June 2018)<https://bigbrotherwatch.org.uk/wp-content/uploads/2018/07/Big-Brother-Watch-evidence-Disclosure-of-evidence-in-criminal-cases.pdf>accessed 10 September 2019.

[3] HC Deb (n 1).

[4] Tony Thompson, ‘Disclosure Consent Forms Rolled Out Under Threat of Legal Challenge’ (Police Professional, 29 April 2019)<www.policeprofessional.com/news/disclosure-consent-forms-rolled-out-under-threat-of-legal-challenge/>accessed 5 September 2019.

[5] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) 1950 (ECHR), art 8; Human Rights Act (HRA) 1998, art 8; HC Deb (n 1).

[6] Peter Hungerford-Welch, ‘Abuse of Process: R. v E’ (2019) 2 Crim LR 151, 4.

[7]CPS, ‘Disclosure- A Guide to “Reasonable Lines of Enquiry” and Communications Evidence’ (CPS, 24 July 2018)<www.cps.gov.uk/legal-guidance/disclosure-guide-reasonable-lines-enquiry-and-communications-evidence>accessed 30 August 2019.

[8] HC Deb (n 1).

[9] Regulation of Investigatory Powers Act 2000, s 49; Reed Chambers, ‘Do I Have to Give the Police My Phone Pin? (Reed Chambers, 2019)<www.reeds.co.uk/insight/i-give-police-phone-pin/>accessed 3 September 2019.

[10] Criminal Procedure and Investigations Act 1996 (CPIA 1996), s 6A(1)(b) and (c).

[11] ibid, s 7A(2).

[12] If voluntary disclosure occurs, s 3 of the CPIA 1996 provides that the prosecution must disclose unused material (relevant material within the possession of the prosecution but which the prosecution does not intend to use) to the defence if it “might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused”.

[13] David Ormerod, David Perry and HHJ Peter Murphy (eds), Blackstone’s Criminal Practice (OUP 2019), D15.52.

[14]Judiciary of England and Wales, Judicial Protocol on the Disclosure of Unused Material (Judiciary of England and Wales December 2013).

[15] Bar Standard’s Board, The Preparation of Defence Statements (BSB 9 March 2011).

[16] CPIA 1996 (Defence Disclosure Time Limits) Regulations 2011 (DDTL Regulations 2011), reg 2; David Ormerod, David Perry and HHJ Peter Murphy (n 13) D9.40 “Time runs from the date of service of a statement by the prosecution under the CPIA 1996, s 3(1)(g), not from service of the scheduled unused material”. See also Criminal Procedure Rules 2015 SI 2015/1490 (CrimPR 2015), part 15.

[17] DDTL Regulations 2011, reg 3; Ormerod, David Perry and HHJ Peter Murphy (n 13) D9.40 “the application to extend must not be granted unless the court is satisfied that it would not be reasonable to require the accused to give a defence statement within 28 days. There is no limit to the number of applications that may be made.”

[18] DPP v Wood [2006] EWHC 32 (Admin), (2006) 170 JP 177; Murphy v DPP [2006] EWHC 1753 (Admin).

[19] CPIA 1996, s 8.

[20] See n 16.

[21] Attorney General’s Reference (No.1 of 1990) [1992] QB 630 (CA); Attorney General’s Reference (No.2 of 2001) [2004] 2 AC 72 (HL).

[22] Crawley [2014] EWCA Crim 1028, [2014] 2 Cr App R 16 [17]-[18] (Sir Brian Leveson P).

[23] ibid.

[24] Ormerod, David Perry and HHJ Peter Murphy (n 13) D3.67; R v Horseferry Road Magistrates’ Court, Ex p. Bennet (No.1) [1994] 1 AC 42 (HL) [74G].

[25] R v B [2008] EWCA Crim 1144.

[26] R v Mullen [2000] QB 520 (CA); Jonathan Lennon and Aziz Rahman, ‘Abuse of Process’ (Rahman Ravelli, 19 August 2015)<www.rahmanravelli.co.uk/articles/abuse-of-process-6/>accessed 10 September 2019.

[27] R (on the application of Ebrahim) v Feltham Magistrates’ Court [2001] EWHC Admin 130, [2001] 1 WLR 1293.

[28] CPIA 1996, Part II Code of Practice, s 23.

[29] CPS, ‘Abuse of Process’ (CPS, September 2018)<www.cps.gov.uk/legal-guidance/abuse-process>accessed 28 August 2019.

[30][2018] EWCA Crim 2426, [2019] Crim LR 151.

[31] [2013] EWHC 562 (Admin).

[32] R v Bloomfield (Mark Andrew) [1997] 1 Cr App R 135 (CA).

[33] Magistrates’ Courts Act 1980, s 108.

[34] R v SR [2019] EWCA Crim 887.

[35] R v E (n 30) [39]; Peter Hungerford-Welch (n 6) 2.

[36] CPS, ‘Abuse of Process’ (n 29).

[37] R v SR (n 34) [34].

[38] Monidipa Fouzder, ‘News Focus: In the spirit of full disclosure’ [2018] LSG 8.

[39] Ian Dennis, ‘Prosecution disclosure: are the problems insoluble?’ [2018] Crim LR 829.

[40] Metropolitan Police Service and CPS, A joint review of the Disclosure Process in the Case of R v Allan: Findings and Recommendations for the Metropolitan Police Service and CPS London (Metropolitan police Service and CPS January 2018).

[41] Ian Dennis (n 39).

[42] Vikram Dodd, ‘Police Accept Making Errors as Oxford Student Rape Case is Dropped (The Guardian, 19 January 2018)<www.theguardian.com/law/2018/jan/19/oxford-student-case-oliver-mears-dropped-days-before-trial>accessed 9 September 2019.

[43] [2017] EWCA Crim 2214.

[44] Ian Dennis (n 39).

[45] Peter Sommer, ‘Evidence in Internet Paedophilia Cases’ [2002] CTLR 176.

[46] ibid; National Institute of Standards and Technology, ‘Computer Forensics Tool Testing Program (CFTT)’ (NIST, 2019)<www.nist.gov/itl/ssd/software-quality-group/computer-forensics-tool-testing-program-cftt>accessed 9 September 2019.

[47] Jean Casarez and Eric Levenson, ‘Charge Against Kevin Spacey Dropped after Alleged Victim Pleads the 5th’ (CNN, 17 July 2019)<https://edition.cnn.com/2019/07/17/us/kevin-spacey-charge-dropped/index.html>accessed 7 September 2019.

[48] Fergus Harrington, ‘Multi Million Pound Carbon Credit and Diamond Fraud Trial Collapses at Southwark Crown Court’ (abv solicitors, 31 May 2019)<www.abvsolicitors.co.uk/articles/multi-million-pound-carbon-credit-and-diamond-fraud-trial-collapses-at-southwark-crown-court/

>accessed 3 September 2019.

[49] Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999), s 43; CrimPR 2015, r 22.4(1).

[50] CrimPR 2015, r 22.4.

[51] R v DL [2019] EWCA Crim 1249; R v P [2019] EWCA Crim 1247; Le Brocq v Liverpool Crown Court [2019] EWCA Crim 1389, [2019] 4 WLR 108.

[52] Privacy International ‘Digital Stop and Search: How the UK Police Can Secretly Download Everything From Your Mobile Phone’ (Privacy International, 27 March 2018)<https://privacyinternational.org/sites/default/files/2018-03/Digital%20Stop%20and%20Search%20Report.pdf>3 September 2019, 7.

[53] CPS, ‘Men Jailed Over Huge £100m Tax Fraud’ (CPS, 10 November 2017)<www.cps.gov.uk/cps/news/men-jailed-over-huge-ps100m-tax-fraud>accessed 11 September 2019.

[54] Attorney General’s Office, Attorney General’s Guidelines on Disclosure for Investigators, Prosecutors and Defence Practitioners (Attorney General’s Office December 2013).

[55] R v R [2015] EWCA Crim 1941, [2016] WLR 1872 [36].

[56] ibid; Ormerod, David Perry and HHJ Peter Murphy (n 13) D15.52.

[57] R v R (n 55).

[58] Metropolitan Police Service and CPS (n 40).

[59] R v R (n 55), [34]-[43].

[60] Judicial Protocol on the Disclosure of Unused Material in Criminal Cases(n 14) para 15.

[61] Attorney General’s Office (n 54).

[62] Smarsh Central,‘What Are the Most Common or Popular Keywords, Phrases, and Exclusions?’ (Smarsh Central, 12 July 2019) <https://central.smarsh.com/s/article/What-Are-the-Most-Common-or-Popular-Keywords-Phrases-and-Exclusions>accessed 29 August 2019.

[63] ActionFraud, ‘Common Fraud Phrases Revealed’ (Action Fraud, 07 January 2013)<www.actionfraud.police.uk/news/common-fraud-phrases-revealed>accessed 11 September 2019;
Warwick Ashford, ‘Ernst & Young Email Keyword Analysis Identifies Fraudsters’ (ComputerWeekly.com, 07 January 2013) <www.computerweekly.com/news/2240175638/Ernst-Young-email-keyword-analysis-identifies-ID-fraudsters>accessed 29 August 2019.

[64] The Inns of Court College of Advocacy, ‘Guidance on the Preparation, Admission and Examination of Expert Evidence’ (COIC, 2019)<www.icca.ac.uk/wp-content/uploads/2019/06/Expert-Guidance-final-copy-with-cover-2019.pdf>accessed 11 September 2019.

[65] Various Claimants v Sir Robert McAlpine [2016] EWHC 45.

[66] Charles Hymas, ‘Men May Have Been Wrongly Jailed Because of Withheld Evidence, Head of CPS Concedes’ (The Telegraph, 13 November 2018)<www.telegraph.co.uk/news/2018/11/13/men-may-have-wrongly-jailed-withheld-evidence-head-cps-concedes/amp/?__twitter_impression=true>accessed 4 September 2019.

[67] Max Hill, ‘Speech by Max Hill QC, DPP, to the Policing and Security All-Party Parliamentary Group, 15 July 2019’ (CPS, 15 July 2019)<www.cps.gov.uk/cps/news/speech-max-hill-qc-dpp-policing-and-security-all-party-parliamentary-group-15-july-2019>accessed 4 September 2019.