Long arm of the law: new powers to gather electronic evidence overseas
Much water has passed under the bridge since January 2018, when the justice system faced a disclosure crisis, particularly in relation to sexual offences. Several high-profile rape trials collapsed, you may recall, due to the failure of the prosecution to disclose digital material. Disclosure is clearly fundamental in ensuring a defendant can receive a fair trial. An improvement plan was launched, the House of Commons Justice Committee held an inquiry and the attorney general launched a consultation, resulting in new guidelines in December 2020. These echoed the focus of the media on the impact on complainants who report sexual offences and are frequently required to hand over their mobile phones to investigators. However, questions remain about whether a complainant should be required to allow the entirety of the content of their phone to be investigated and how the police and prosecution should handle such large quantities of data. This article reviews these issues and highlights a new legislative tool that the authorities will have at their disposal which is potentially game-changing.
Two recent pieces of guidance look at the problems arising from cases in which the data on a person’s phone becomes potentially relevant in criminal investigations. First, the Information Commissioner’s Office (ICO) published its investigation report ‘Mobile Phone Data Extraction by Police Forces in England and Wales’, in June 2020. Second, in the same month, judgment in Barter-James and Mohammed v R  EWCA Crim 790,  All ER (D) 129 (Jun) (CB) was handed down.
In CB the court suggested four principal considerations for investigators to help determine the approach to digitally stored evidence held by a witness.
(1) When does it become necessary to attempt to review a witness’s digitally stored communications? Also, when is it necessary to disclose digital communications to which the investigators have access?
The answer is where there is a proper basis, usually reasonable grounds, to believe that the digital material may be relevant to the investigation or the likely issues at trial. It is not a reasonable line of inquiry if the investigator pursues fanciful or inherently speculative searches.
(2) When it is necessary, how should the review of the witness’s electronic communications be conducted?
Investigators must consider the nature and detail of any review and whether, if it is necessary to look at the complainant’s device, it is sufficient to view limited areas, for example by taking a screenshot. If a more extensive enquiry is needed, the contents of the device should be downloaded and returned with the minimum inconvenience and unnecessary delay to the complainant.
(3) What reassurance should be provided to the complainant as to the ambit of the review and the circumstances of any disclosure of material that is relevant to the case?
Complainants should be told that they will be kept informed as to disclosure and given reassurance that it will only be provided to the defence if it meets the strict test for disclosure, and that it will be redacted if necessary.
(4) 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? The court will need to consider the adequacy of the trial process, and assess the impact of the absence of the missing evidence, with appropriate directions given to the jury.
No issue can be taken with the court identifying these factors relevant to the considerations around review of digital material. However, where CB leaves itself open to criticism is the seeming imbalance as between protecting the privacy of witnesses and ensuring the integrity of the evidence put before the jury. It sets out the ‘primacy’ of considerations regarding the sensitivity of complainants. However, it does little to guard against the demonstrable disclosure failings that have led to serious miscarriages of justice.
In support of the conclusions it drew, the Court of Appeal re-stated the importance of Art 8, quoting the ‘Judicial Protocol on the Disclosure of Unused Material in Criminal Cases’ (2013) (the Judicial Protocol) which says that: ‘[…] Victims do not waive… their right to privacy under article 8 of the ECHR, by making a complaint against the accused.’
Neither the Judicial Protocol nor the Court of Appeal sought to draw any parallels with a suspect who finds him or herself to be the subject of an investigation. However, it is also correct to say, of course, that suspects’ Art 8 rights are not waived when complaints are made against them (although CB states explicitly that it covers prosecution witnesses, and does not deal with the same issue in relation to the phones of defendants). The ICO report purports to cover suspects, but in fact is squarely focused on the problem as it relates to complainants.
Suspects also benefit from a right to a fair trial under Art 6 of the ECHR, and under ECHR case law, disclosure of evidence is a requirement of Art 6. While disclosure may be withheld so as to preserve the fundamental rights of another person, it can only be withheld to the extent strictly necessary.
For an example of this imbalanced approach, take principle two. In seeking to strike the balance between the need to ensure that an investigation identifies all relevant information on the one hand, and the right to privacy on the other, the court rightly identifies that the least intrusive method ought to be employed. The suggestion that taking a ‘screenshot’ of messages provides an adequate alternative to forensically capturing the data is fraught with difficulties. Unless the provenance of the data is already demonstrated, eg the message in question is also on the suspect’s phone, it is likely that the defence will resist the admission of such evidence. This is because without the meta-data, the authenticity and accuracy of the data is uncertain.
For a further example, look at the requirement set out in principle one, to consider whether the examination of a digital device amounts to a reasonable line of enquiry, or principle two which requires the device to be returned to a complainant with the minimum inconvenience and unnecessary delay. The position for a defendant is very different. The seizure of electronic data often increases the length of time it takes to complete criminal investigations. Officers do very little to consider whether electronic data is a necessary component of an effective investigatory strategy. The suspect’s phone and other electronic devices are routinely seized, thereby adding approximately nine months to the length of the investigation. If it is this collection of data that principle one is directed at, it is unclear why it does not specifically deal with the collection of information from suspects as well as complainants.
Similarly, in looking at the consequences of evidence being withheld or deliberately destroyed under principle four, in CB the court took an almost benevolent approach, stressing the possibility of goingahead without such evidence. The interesting comparison is that of a defendant who refuses to provide a PIN number (so that the police can review their phone), who will be liable to prosecution under s 53 of the Regulation of Investigatory Powers Act 2000, an offence which carries a maximum sentence of five years’ imprisonment. The approach in CB is also perhaps surprising because in all other respects, the court is proactive and rightly punitive in protecting the integrity of evidence in criminal proceedings, eg perverting the course of justice, an offence which often deals with misleading or destroyed evidence, and would normally result in an immediate prison sentence given that it amounts to a fundamental attack on the integrity of proceedings. However, where it concerns witnesses, the complainant’s deliberate deletion of relevant data, so that it is not available to the trial, is equated with the absence of evidence that arises when CCTV is simply not available because it was not retained. This is perhaps the most egregious example of the court failing to weigh the qualified Art 8 rights of the witness as against the unqualified Art 6 rights of the suspect.
In allegations of sexual offences where there are often only two people able to say exactly what transpired, digital data usually provides relevant context for the behaviour complained of or the defence asserted and is capable of assisting the prosecution and the defence. Given its importance, that such data should be forensically sound and reliable ought to be a ‘no-brainer’.
From a defence lawyers’ perspective, CB’s (implicit) weighing of the Art 8 rights of complainants against suspects’ right to fair trial has tipped the scales into potential injustice. If no complaint or judicial notice arises from a complainant deliberately deleting relevant data, it is difficult to see how the right to a fair trial is preserved for the defendant.
The direction of travel in the landscape of disclosure is unlikely to change significantly. The Attorney General’s Guidelines on Disclosure and CPIA 1996 (Code of Practice) Order both published in December 2020, confirm this. The fundamental principle is still that an investigator is required to pursue all reasonable lines of inquiry, whether that points towards or away from the suspect. The guidelines introduce a more formalised protocol for ‘pre-charge engagement’. It is described as an opportunity for the defence to engage in identifying reasonable lines of inquiry and states that this is specifically not intended to be a ‘fishing expedition’. It is difficult to see how a properly framed request for relevant data from the complainant’s phone would not amount to a reasonable line of inquiry which the police would be obliged to pursue.
That said there are changes on the horizon which may have an impact—the coming into force of the Crime (Overseas Production Order) Act 2019. The Overseas Production Order (OPO) allows an investigator to obtain material from overseas, specifically the US at the moment, from large tech companies such as Google, Facebook and Twitter where an investigation is underway for an indictable offence and all or part of the electronic data is likely to be of substantial value (whether or not by itself) to the investigation or proceeding and where all or part of the electronic data is likely to be relevant evidence in respect of the offence. It must also be in the public interest for all or part of the electronic data to be produced or accessed.
The potential for investigators to obtain data directly from service providers is new and potentially a game-changer, although, of course, the material will then be subject to the same disclosure rules as all other material obtained in the course of criminal proceedings. Where information has either been deleted or made unavailable by the person in possession of it, whether suspect or complainant, the OPO presents a tangible opportunity for information relevant to investigations to be obtained. There will be no need to seize or examine the complainant’s phone in order to access a significant amount of seemingly contentious data which is the subject of CB.
While recognising the difficulties of this issue for complainants, it is vital that the right to a fair trial is not forgotten. It will be important to redress the balance of these rights before the OPO’s facilitation of far greater quantities of data are made available to investigators.
This article originally appeared in the New Law Journal on the 28th April, 2020. Visit the website to view the article.
For further information on the issues raised in this blog post, please contact a member of our criminal litigation team.
Sandra Paul has a wealth of experience in criminal and related litigation. The majority of her work concerns defending allegations of sexual offences. She works with clients in the UK and abroad, including allegations following the #MeToo campaign. Drawing on her advocacy experience, Sandra is particularly accomplished in preparing witnesses to give an account or evidence in settings ranging from court proceedings through to internal and external investigations or inquiries. Sandra’s career has included discreet representation of high profile individuals including politicians, bankers, music, sports and media personalities.
Rebecca Niblock has significant experience in both domestic criminal litigation and extradition, having acted for defendants in a wide range of investigations from serious fraud, money laundering, bribery and corruption, to sexual offences and offences involving violence or drugs. She advises on a wide range of white collar crime matters including SFO and FCA investigations. She has extensive experience of representing individuals at police station interviews.
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