E, R. v

On 19 July 2018, in the Crown Court at Bradford, on the basis that a fair trial would not be possible, His Honour Judge Burn imposed a stay on proceedings against E who was charged in an indictment alleging assault by penetration contrary to s. 2 of the Sexual Offences Act 2003 and sexual assault contrary to s. 3 of the same Act. Having given t he a ppropriate undertakings, t he p rosecution now s eeks leave t o ap peal pursuant t o s . 58 of t he C riminal Justice A ct 2003 ( “the 2003 A ct”) a gainst w hat constitutes a terminating ruling.

The pr ovisions of s . 71 of t he 2003 A ct a pply to t hese pr oceedings so t hat no publication m ay i nclude a r eport of t hem, s ave f or b asic s pecified facts, u ntil t he conclusion of the trial unless the court orders that the provisions are not to apply. On the b asis th at the d ecision r elates to th e critically imp ortant is sue o f th e extent of collateral i nquiry and s ubsequent di sclosure of unus ed m aterial i n a llegations of sexual offending, we lift the restrictions so as to permit the principles of law involved to be reported albeit anonymously.

At t he m aterial t ime, t he r espondent, E , w as 1 8 years of age and t he a llegations concern his step sisters R (who was 17) and EC (who was a few days short of her 15^th birthday). In short it is alleged that on 23 December 2016, E (who had been to a beer festival and returned home drunk) entered the bedroom of his step sisters and decided to pl ay a pr ank on t hem b y hi ding i n t he wardrobe. Initially, t hey t hought hi s behaviour funny but then E forced his hand into EC’s pyjama bottoms, brushing past her stomach as he did so. He then turned to R. He lay on top of her and kissed her, at the same time forcibly penetrating her vagina with his fingers. R forced him off and he left the room.

A complaint was made to the police some months later; it was supported by evidence from bot h E C a nd R . E w as a rrested a nd, i n interview, de nied t hat he h ad ev er entered the bedroom and further denied any sexual activity between him and his step sisters. T hat r emains h is c ase to th is d ay and it is n o p art o f th is a pplication to adjudicate be tween t he allegation pur sued b y E C a nd R on t he one ha nd a nd t he denial maintained by E on the other.

R told the police during the investigation that she had reported what had happened to her in messages sent on he r phone t o t wo f riends t he ni ght s he alleges s he w as indecently as saulted. R’s phone was s eized by t he po lice and t he contents were downloaded. The pr osecution r elies on t hose m essages as ev idence o f r ecent complaint.

EC was asked during the course of a video recorded interview whether she had told anybody else about the allegations. She said that she had only told her mother. She also said, when asked, that she hadn’t told any of her friends what had happened. She said that she had no contact with E on her phone. She said she didn’t have his phone number nor w as s he i n c ontact w ith hi m on a ny m essaging s ervice i ncluding Facebook. In the light of those answers EC’s phone was not seized by the police.

On 12^th July 2017 the police took a statement from E’s mother. In it she said that her husband, the father of both EC and E, had received a t ext from EC shortly after the alleged sexual assaults. Those representing E obtained a screen shot of the message. It read as follows:

“Hi dad, just wanted to let you know that I realised I was really harsh and selfish, and you only want the best for me and was just a b it caught up i n everything t hat w as ha ppening a t t he time. I just think I felt lonely as everyone was working a lot or going out a nd I wasn’t, but i t is m uch be tter now. I w ill be coming to yours every other weekend and Wednesdays as the others do. I love you very much. I am very sorry. I was just having a very hard time at school. I think I am ready to come back.’”

We w ere t old b y Paul Greaney Q C, representing E , t hat E would a lso be pr esent during weekends at his and EC’s father’s home.

Mr Greaney asserts that the police were under a duty to seize EC’s phone at the time they received her initial complaint but that they should certainly have done so when they became aware of the existence of the text in July 2017. In that regard, he points to the very real issue between prosecution and defence prior to the trial about lack of disclosure, not only relating to the failure to seize EC’s phone but, until shortly before the trial, the refusal to disclose the download of the contents of R’s phone. This had led to an application under s. 8 of the Criminal Procedure Investigations Act 1996 (“the 1996 Act”) for disclosure of the download of R’s phone in which, as part of the application, questions ha d be en pos ed about t he f ailure of t he pol ice t o s eize a nd interrogate EC’s phone. On 5 July 2018, that application led to a series of orders after which the prosecution continued to maintain that the download of R’s phone was not disclosable but, following an intervention of prosecution counsel, that material was disclosed.

In relation to EC’s phone the prosecution said that they had not seized EC’s phone as that did not constitute a reasonable line of enquiry. Further, in response to a defence inquiry, the pr osecution said that EC now ha d a new phone a nd t he ol d one w as broken. There was an issue at that stage as to whether the old phone could still be found; in the event, it was available.

The trial was due to start on 16 July 2018. By the time of trial, the stance adopted by the prosecution as to EC’s phone had changed and, through counsel then prosecuting, both in written submissions and in court, it was conceded that from 12 J uly 2017, when the existence of the text was made known to the police, it would have been a reasonable line of enquiry to have seized EC’s phone to examine the contents. In the light of that concession, Mr Greaney did not need to pursue his submission that there was a breach of duty when the complaint was first made by EC.

The concession having been made, the police seized both the old broken phone and EC’s new phone and downloaded what they could. The results of these examinations, as told to the judge, was that there was no material which still remained from the relevant period of time. It had all been lost and was not recoverable from the cloud on which communications might be stored. The circumstances in which material prior to

In the circumstances, Mr Greaney applied that the case be stayed as an abuse of the process of the court. He submitted that there had been a breach of duty by the police leading to the loss of material which might have supported E’s case and, as a result, he could not have a fair trial. The prosecution accepted that there had been a breach of duty but submitted that there could still be a fair trial. The trial Judge found in favour of E and stayed the prosecution.

Judge Burn had “no doubt” that the failure to obtain or analyse the mobile phone “and/or the social media communications … or the failure to give advice to the police to … secure that evidence” constituted “a clear contravention of the Director’s current guidelines”. He postulated that there would have to be some evidential indication that the particular download may have yielded information of critical importance which, in the c ontext of t he case, h e i dentified as t he t ext m essage and t he l evel o f E C’s communications with ot hers. H e obs erved t hat i t w as i n a di fferent category t o corroborative ev idence such as C CTV an d s cientific t ests ( such as i dentified b y Brooke LJ in Ebrahim (infra) and went on:

“There are two ways in which this is in a d ifferent category. The first is that … t he phone download … f or the majority of younger persons is tantamount to a running commentary upon their da y t o da y l ives, f eelings a nd i nteraction. S econdly, evidentially … this evidence goes to the heart of the defence ability to cross-examine a complainant upon a record of their own making. T he absence of such material deprives the trial process as a w hole b ecause i t m ay b e r elevant t o t he prosecution case too, of likely very important contemporaneous evidence.”

On behalf of the prosecution, Richard Wright QC (who did not appear in the Crown Court) seeks l eave t o a ppeal t hat d ecision a rguing t hat the concession was one of mixed fact and law and was wrong on the basis that there was no breach of duty. In the alternative, if the concession either cannot be withdrawn or was correctly made, it was still possible for E to have a fair trial: the effect of the judge’s ruling was that in every case of this type in relation to those who communicate through their mobile phones and social media, it would be necessary to seize and examine both phone and social m edia data on t he basis that it “ goes to the heart of the … ability to cross examine”.

That a pplication f or l eave ( and t he h earing o f any ap peal) f alls t o b e considered pursuant to the provisions of s. 58 of the Criminal Justice Act 2003 (“the 2003 Act”), such that, pursuant to s. 61 of the Act, the court must confirm, reverse or vary any ruling to which such an appeal relates. By s. 67 of the 2003 A ct, the Court cannot reverse a ruling on appeal unless it is satisfied that:

“(a)

the ruling in law was wrong;

(b)

the ruling involved an error of law or principle; or

(c)

the ruling was a ruling that it was not reasonable for the judge to have made.”

In that regard, the approach to appeals of this nature has been elucidated in R v B [2008] E WCA Crim 1144 by Sir Igor Judge P (as he then was) in these terms (at

In accordance with the provisions of the 1996 Act and the Code of Practice issued pursuant to s. 23 of that Act, there is an obligation on the police when investigating an alleged crime to “pursue all reasonable lines of enquiry, whether these point towards or away from the suspect”. A failure to do s o amounts to a breach of duty. The concession before Judge Burn was to the effect that, from 12 July 2017 (i.e. when the police l earnt o f t he t ext m essage t o E C’s f ather), seizure of t he phone w as a reasonable line of enquiry. Mr Wright, on the other hand, now submits that there was no duty to seize and examine the phone at any stage during the inquiry. In short, seizing the phone was never a reasonable line of inquiry and therefore there was no breach of duty.

The f irst que stion i s w hether l eading c ounsel for t he pr osecution s hould now be permited to withdraw the concession. Mr Greaney argues that this court must focus on the decision made by the judge based, as it was, on the material then before him. Furthermore, it is submitted that the withdrawal of the concession is made with the benefit of hindsight and that the one trial principle applies which requires that parties are held to decisions that they make in the course of a trial.

In relation to that last submission, the court referred the parties to the decision of this court in R v R [2015] EWCA Crim 1941, [2016] Cr App R 20 (page 288). Dealing with concessions made during the course of the hearing in the Crown Court, it was made clear:

“53.

Before leaving this part of the case, three other issues must be a ddressed. T he f irst i s t o unde rline one of t he “Overarching Principles” set out in the Review of Efficiency in Criminal Proceedings (2015). The principle is “getting it right first time” and its relevance to the present case arises from the fact that the appellant’s stance before this court is substantially different from that adopted before [the trial judge]. Before the judge ( as di scussed i n f urther de tail be low), t he a ppellant essentially acquiesced in the judge’s proposals as to disclosure. The a ppellant’s c ase b elow w as th at, with mo re time , th ey could and would comply with the requirements canvassed with the pa rties b y t he j udge. O n a ppeal, t he c ase i s t hat t hose proposals were misconceived with regard to the stage of initial disclosure, imposed upon them under protest and led the parties and the case onto the wrong road.

54.

Changes o f c ase of t his n ature ar e d isconcerting an d potentially very wasteful of time and costs. Whether or not in the present proceedings the appellant is permitted to change its case on appeal, it must be emphasised that parties generally can have no e xpectation that such a course will be open to them. Save very exceptionally, a party is not permitted to acquiesce in an approach to the case before the judge at first instance and then r enounce i ts a greement a nd a dvance a f undamentally different approach on a ppeal. P arties m ust g et it r ight f irst time.”

It i s t hus ne cessary t o consider whether th is is an ex ceptional cas e such that Mr Wright s hould be a llowed to proceed on a pr emise di fferent t o t hat w hich w as common g round before t he j udge. In t hat r egard, it i s n ecessary t o c onsider t he guidance that has been given by the DPP as to the circumstances in which seizing for examination the contents of a mobile phone is considered to be a reasonable line of enquiry. This guidance followed public concern about possible miscarriages of justice following a number of cases (many of which featured allegations of sexual offences made against a friend or former partner) where such an examination had not taken place until the matter came to court for trial yet then revealed material which was highly relevant to whether a crime had been committed.

The Crown Prosecution Service’s ‘Guidelines on Communication Evidence’ (‘CPS Guidelines’), released in December 2017 and updated on 26 January 2018, states:

“1.

C ommunications be tween s uspects, c omplainants or witnesses can be of critical significance whether as evidence in support of t he pr osecution c ase or a s unus ed m aterial w hich either u ndermines i t o r as sists t he d efence case. This i s particularly so where the complainant and suspect have been in a personal relationship, however briefly, for example, in cases involving a llegations of a s exual na ture. T his g uidance i s primarily directed to such cases. Its purpose is to ensure that the significance o f co mmunication e vidence i s u nderstood a nd assessed at the appropriate time and that it is handled correctly.

Serious consequences have occurred and will continue to do so if this is not done. Such evidence includes communications by way of telephone or other electronic device or by social media and i s not r estricted t o c ommunications between t he complainant a nd s uspect but m ay i nclude contact w ith t hird parties [see below].

2.

Investigating officers are required to pursue all reasonable lines of i nquiry, w hether t o exonerate o r i mplicate s uspects, under the Code of Practice issued under CPIA 1996. This will often i nclude t he obt aining a nd a nalysis of c ommunication evidence w hether i t o riginates f rom d evices o r s ocial m edia accounts be longing t o t he c omplainant or t he suspect or , i n some cases, to third parties. Prosecutors should be alert to the often critical i mportance o f s uch evidence an d, w here s uch reasonable lines of inquiry have not been undertaken, should provide appropriate advice to the police to pursue them. This might be advice to obtain devices which have not hitherto been seized or to examine those which have in an appropriate way. In t he c ategory of cases t o w hich t his g uidance i s pr imarily directed, it would be rare indeed for communication evidence not to feature as part of the police investigation.

3.

T he A ttorney G eneral's G uidelines on D isclosure pr ovide assistance on what amounts to a reasonable line of enquiry. The investigator must decide how best to pursue a reasonable line of enquiry in respect of such material, ensuring that the extent and manner of it examination are commensurate with the issues in the c ase. T his s hould be a chieved i n c onsultation w ith t he prosecutor, i f a ppropriate. T herefore, t he f ollowing a dvice i s provided:

-

Consider asking the suspect or/and complainant whether there might be communication material which may have a bearing on the case.

-

It is necessary carefully to consider the facts of a particular case, the issues raised and any potential defence in order to decide what amounts to a reasonable line of enquiry.

-

Prosecutors s hould pr ovide a ssistance t o i nvestigators when making such a decision and, ideally, agree with them what amounts to a reasonable line of enquiry.

-

In reaching such a decision, prosecutors are reminded that the whole of a relevant download falls to be considered i.e. all forms of message communication [even if deleted] and photographs / vi deos i f s tored. E qually t he i nvestigation should not be limited to messages between the complainant and the suspect only as communications between either of them a nd ot hers m ay have a n i mpact on t he c ase, f or example, w hen r eference i s m ade b y either t o the ev ents which are the subject of the allegations.

-

In s ome cas es i t m ay b e n ecessary f or t he whole o f a download to be examined. The extent of any investigation of digital m aterial s hould onl y be confined i f i t i s not considered to be a reasonable line of enquiry.”

Subsequent to this ruling, on 24 July 2018, ‘A Guide to “reasonable lines of enquiry” and Communications E vidence’ w as publ ished b y t he D PP ( ‘DPP G uide’) w hich states:

“13.

T he examination of m obile de vices b elonging t o t he complainant is not a requirement as a matter of course in every case. There will be cases where there is no requirement for the police to take the media devices of a complainant or others at all, and thus no r equirement for even a level 1 examination to be undertaken. Examples of this would include sexual offences committed oppor tunistically a gainst s trangers, or hi storic allegations where there is considered to be no prospect that the complainant’s p hone w ill r etain a ny m aterial r elevant to th e period in which the conduct is said to have occurred and/or the complainant through age or other circumstances did not have access to a phone at that time…

19.

W hat r epresents a r easonable l ine of enquiry i s a n investigative matter for the police and whilst the prosecution will do what they can to assist in identifying potential further enquiries, that ought not to be taken by the police as definitive or exhaustive. should only be confined if it is not considered to be a reasonable line of enquiry.”

This guidance appears to us accurately to set out the considerations that investigators should ha ve i n m ind when de ciding what enquiries should b e m ade during investigations into allegations of sexual offences. It should be noted that it does not say that mobile phones should be examined as a matter of course in every case: the decision is fact specific in each and every case.

It was submitted by Mr Wright that, 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 t he phone o f a ny complainant w ho m akes an a llegation of a s exual offence. Given the way that he expressed himself, there is undoubtedly force in the submission that this was, indeed, the way in which the judge approached the matter. 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.

On examination, however, the judge also clearly had in mind and applied the relevant guidance: he was referred to it and quotes parts with approval. Further, his ruling was that there was a breach of duty after 12 July 2017 when the contents of the text were made known to the police. He went on to consider the evidence relating to whether

Without deciding that the concession should not have been made, we consider that it was at least arguable whether it was appropriate not least because of the observations in R v Khalime Shah [2002] E WCA C rim 162 3 (which a pply e qually to r equests following disclosure of material by the prosecution). Kay LJ put the matter in these terms:

“24.

D ecisions a s t o w hether t o i nvestigate or no t ar e essentially matters for the police to make their minds up as a matter o f ju dgment b y i nvestigating o fficers and th e court is always going to be very reluctant to intervene and suggest that an enquiry of some kind should have been made when none has been made.

25.

We want to make it clear that it was never the intention, as we unde rstand i t, of t hese pr ovisions i n s ome w ay t hat t he defence c ould obt ain a pi ece o f i nformation and t hen b y sending i t t o t he pr osecution pl ace upon t hem a dut y t o investigate matters, in the hope that in some speculative way, it might produce further information that would assist the defence case.”

The concession was made by the prosecution doubtless having considered with the police w hat t hey s hould ha ve done . In t he c ircumstances, t herefore, we do not consider that this case could fall to be considered as exceptional (as required by R v R supra)and proceed on the basis that there was a failure (after 12 July 2017) to seek further material from EC’s mobile phone. That is not the same as concluding that there was a power of seizure on t he grounds that it was evidence in relation to an offence b eing i nvestigated o r n ecessary to p revent ev idence b eing co ncealed, l ost, altered or destroyed: see ss. 19 and 20 of the Police and Criminal Evidence Act 1984: that is an issue which, in the context of this case, we do not need to resolve.

We turn to the alternative submission made by Mr Wright that the judge was wrong to find t hat E could not ha ve a f air t rial f ollowing t he l oss of a ny evidence of t he material (save f or t he t ext) t hat h ad b een av ailable o n EC’s phone (it not be ing suggested that any other social media data was sought or available).

It was common ground that the leading authority which deals with the power of a court t o or der a s tay where ev idence has be en l ost i s R(Ebrahim) -v- Feltham Magistrates Court[2001] EWHC Admin 130, [2001] 2 Cr App R 23 (page 427) but there are many others, including the decision of the Supreme Court in R v Maxwell (Paul) [2011] 2 Cr App R 31. The two situations in which a stay should be ordered

Although the judge focussed on t he fault of the prosecution in failing to seize EC’s phone and relied on Ebrahim, it is important to identify that in Ebrahim Brooke LJ (at

It is worth adding that although the judge was clearly critical of the investigation and the prosecution failure to obtain the mobile phone and social media communications, the application of the principles of abuse of process is not a disciplinary sanction. In R v Loosely; Attorney Generals Reference (No 3 of 2000) [2001] UKHL 53, [2002] 1 Cr App R 29 (page 360), Lord Nicholls of Birkenhead made it clear:

“I should add that when ordering a stay, and refusing to let a prosecution c ontinue, t he c ourt i s not s eeking t o e xercise disciplinary pow ers o ver t he pol ice a lthough s taying a prosecution may have that effect.”

The judge observed that whether a fair trial could take place was a question which looked at the fairness of the process to the defendant and that it would be strange to ask w hether a t rial could t ake p lace w hich was f air t o t he p rosecution. In our judgment, the proper approach is to look at whether the trial will be fair generally. That requires a consideration of all the circumstances of the case: it is a fact sensitive decision. The circumstances primarily revolve around the issues in the case and the likelihood that information relevant to those issues and of assistance to the defence would have been revealed by the material, had it been seized and retained. It is not, of course, permissible to speculate but, in many cases, it may be possible to draw proper inferences about what is missing from the material that is available. In that regard, consideration must also be given to whether any potential unfairness to a defendant would be r emoved b y t he t rial pr ocess which i nvolves the s trength of a ny ot her evidence and the material that the defence could utilise in a trial.

Judge Burn correctly identified that the credibility of the girls was central to the case and whether these assaults took place or (as E alleges) the two girls were deliberately (for it could hardly be otherwise) making a false complaint. It was not a cas e where there w as an y suggestion o f co nsensual s exual activity or i nnocent ho rseplay. In deciding the likelihood of whether there might be anything on the phone which would bear on this issue, the judge relied on the text message from EC to her father and the inference which he drew from the frequency of her use of her mobile phone in June 2018. This ignores her evidence that she did not communicate about the incident with anyone (which is not an assertion undermined by the fact that she was prepared to visit her father without reference to whether or not E was present).

What was lacking from the judge’s analysis was any detailed consideration of whether and, if so, to what extent the trial process itself would remove any potential unfairness to E. He appears to conclude that, as it could not be said what was on the missing phone, any direction to the jury would involve speculation on their p art which he observed “is dangerous to a fair trial”. He does not consider the fact that R had made a consistent complaint immediately or shortly thereafter the event, that there was no suggestion o f communications (taken f rom R’s phone ) be tween h er and E C undermining t heir c omplaint and t hat R w as equally a ble t o s peak a bout w hat happened to EC without it being suggested (at least before us) that she might have said something inconsistent with the complaint.

Having considered the reasons that the judge gave for concluding that there could not be a fair trial in the circumstances of this case and bearing in mind the observations cited above of Sir Igor Judge P in R v. B, we have come to the clear conclusion that the judge did reach a decision that was not reasonably open to him. First, we do not accept that it w as legitimate for him to infer from the text sent by EC to her father (which deals with her relationship with him rather than with her step brother E) that it was likely there would be material relevant to whether sexual assaults took place on her phone and, f or our pa rt, w ithout unde rstanding t he f amily d ynamics of t he relationship of EC with her father, as to which we know of no evidence, we have doubt about how far the text could be said to undermine her allegation.

Secondly, w hile w e unde rstand t he observation about the e xtent t o which young people contemporaneously record their thoughts in messages, we have no doubt that the judge gave it undue weight in the circumstances of this case: we repeat that we consider it highly unlikely that there would have been some material on the phone to support t he s uggestion that EC a nd her s ister ha d i nvented t his a llegation or t o undermine her credibility not least because messages on R’s phone between her and her s ister w ere available; no s uggestion i s m ade t hat a ny of t hem support t he allegation of a collusive false complaint.

In that regard, we repeat that EC had made it clear that she had not told anyone. While that statement does not necessarily preclude the need for further investigation, there was no e vidence to doubt what EC said about that. Information from the phone to support the suggestion that EC didn’t like E takes the case no further: she made that fact clear in her video interview. Looking at those matters for ourselves, we have concluded that the proper inference to be drawn from what we do know is that there was unlikely to be anything of relevance on the phone.

In c onsidering w hether the t rial pr ocess w ould be l ikely t o r esolve a ny pos sible unfairness, we have also considered the information that the defence did have to use during the trial. To such extent (if at all) as it a ssisted in assessing the relationship between E C an d E , there w as t he t ext t o E C’s f ather a nd, e ven a ssuming no communication with her friends, there was also the difference in her approach to that of her sister. What EC might have told her friends and what might have been on the phone can be explored in cross examination and the subject of argument. What is made of EC’s credibility and the forensic points would be a matter for the jury.

Third, we do not accept that a direction to the jury appropriate to the facts of this case would be ineffective. Such a d irection could point out in the conventional way the disadvantage the defence may have been under caused by the absence of this material and direct the jury to take that into account when applying the burden and standard of proof.

Finally, although adding it was “not the point”, the judge observed to the fact that neither complainant evinced a wish for the matter to be brought. In reality, (as agreed by prosecution and defence), this was simply incorrect but, in any event, we underline that this observation had no place in the analysis of the fairness of a trial.

Contrary to the views at least inferentially expressed by the judge, Ebrahim remains the law and it would be wrong to conclude that failure to comply with best practice should necessarily lead to an application to stay. That is not to say that such failures are ir relevant and it is clear that they must be taken into account in d eciding any question which arises during the course of proceedings (see s. 26(4)(b) of the 1996 Act). Ordering that a prosecution be stayed, however, should be a last resort and only (in r elation t o t his cat egory o f ab use) i n ci rcumstances w here a d efendant can not receive a fair trial. That is not, in our judgment, the case here.

For all those reasons we consider that the judge’s decision to stay the prosecution was not a reasonable ruling for him to have made. This is not a situation where, of two different pos sible c onclusions, w e p refer a different result to th at o f th e j udge. Pursuant t o s . 67 of the 2003 A ct, w e c onclude th at th e d ecision to s tay th e prosecution as an abuse of process was wrong in principle and did not constitute a reasonable e xercise o f his di scretion. T hus, we grant l eave t o appeal an d, in accordance with s. 66(1) and (2) of the Act, the ruling is reversed and we order that the proceedings on this indictment be resumed at the Crown Court before a different judge.