Court of Appeal Considers the Principle of Disclosure Relating to Electronic Records Held by Prosecution Witnesses

  • Category: Crime
  • 5th August 2020
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Zaheer Afzal

Court of Appeal Considers the Principle of Disclosure Relating to Electronic Records Held by Prosecution Witnesses – CB and Sultan Mohammed v The Queen [2020] EWCA Crim 790

Review by Zaheer Afzal, Barrister at Law

The Crime Group at St Philips Chambers held a Crime Clinic led by Kevin Hegarty QC.  The topic was the Court of Appeal’s approach to disclosure of digital material sought from devices such as a complainant’s mobile telephone in a case involving sexual offences.

The Court in CB and Sultan Mohammed v The Queen highlighted four issues of principle that must be considered by the parties when dealing with this type of digital material.

The First Issue of Principle

Identify the circumstances where it is necessary for investigators to seek details of a witness’ digital communications.

  • Regardless of the medium in which the material is held a reasonable line of enquiry always depends on the facts of and the issues in each case, including any potential defence. There must be a properly identifiable foundation for the enquiry, not mere conjecture or speculation.

The Second Issue of Principle

When a properly founded request is made how should the review of the witness’ electronic communications be conducted?

  • Consider the parameters of the search carefully and whether a record can be made by taking a screenshot or without taking physical possession of the digital device. The enquiries should be focussed using search terms including terms suggested by the defence.

The Third Issue of Principle

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?

  • Keep the witness informed as to any decisions that are made as to disclosure and reassure them that material will be served in a suitably redacted form to ensure that personal information is not unnecessarily revealed.

The Fourth Issue of Principle

What are the consequences if the complainant refuses to permit access to a potentially relevant device or if they delete relevant material?

  • Look carefully at the reasons for the refusal to permit access. Consider making an application for a witness summons for the device to be produced.
  • The court should not be drawn into simply guessing the content and significance of the material that may have become unavailable however it will need to consider the adequacy of the trial process and the fairness to the defendant of permitting cross examination of the witness coupled with appropriate judicial directions.

How Can We Help?

  • Counsel within the St Philips Chambers Crime Group are widely recognised for high levels of diligence and professionalism in the service of their clients. St Philips Chambers Crime Group is recognised both nationally and internationally as first rate with excellent strength in depth.
  • The Crime Group at St Philips Chambers actively encourage the adoption of early case management conferences with clients to better target digital disclosure within the framework.
  • A properly framed request using effective search terms will maximise the prospects of successful disclosure outcomes for the client avoiding a costly waste of valuable time and intellectual capital.