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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Bater-James & Anor v R. [2020] EWCA Crim 790 (23 June 2020) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2020/790.html Cite as: [2020] Crim LR 1069, [2020] WLR(D) 374, [2020] EWCA Crim 790, [2020] 2 Cr App R 20, [2021] 1 WLR 725 |
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ON APPEAL FROM CROWN COURT LUTON & CROWN COURT IPSWICH
HHJ Mensah and HHJ Pugh
T20197017 & T20187160
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE FULFORD
and
MRS JUSTICE CHEEMA-GRUBB DBE
and
SIR NICHOLAS BLAKE
____________________
CARL ![]() and SULTAN ![]() |
1stAppellant 2nd Appellant |
|
- and – |
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The Queen |
Respondent |
____________________
Mr Chris Whitehouse (instructed by A2 Solicitors) for the 2nd Appellant
Mr Tom Little QC & Ms Gabrielle McAvock (instructed by CPS Appeals & Review Unit) for the Respondent in Bater-James
Mr Tom Little QC & Mr Andrew Thompson (instructed by CPS Appeals & Review Unit) for the Respondent in Mohammed
Hearing dates : 27th March 2020
____________________
Crown Copyright ©
Lord Justice Fulford :
The Issues of Principle
Carl Bater-James
Introduction
The Rulings on the admissibility of the complainant's bad character (11 June 2019)
The First allegation
The Second Allegation
The Ruling on the prosecution application to recall the complainant (13 June 2019)
The Ruling on the abuse of process application (17 June 2019)
The Appeal
The First Ground of Appeal
The Second Ground of Appeal
The Third Ground of Appeal
Sultan Mohammad
Introduction
The Ruling on disclosure (2 April 2019)
"The OIC (Officer in the Case) is looking at all data from that phone from the 12/09/2018. The police are looking at any patterns in the complainant's behaviour that might be relevant to understanding the case. They will look for communications that might further the understanding of this case in any way, including references to behaviour that might be relevant to understanding any aspect of the events, particularly whether consensual sex may have taken place. They will look for any reference to the events and they will look for anything that support or challenge assertions made by the defendant and material witnesses. They will look for anything that might have an impact upon the question of whther (sic) the defendant and the material witnesses as reliable witnesses of fact (the relevance test)."
The First application under section 41: ruling on the complainant's previous sexual history (11 April 2019)
The Second application under section 41: further ruling on the complainant's sexual history (12 April 2019)
The Appeal
The First Ground of Appeal
The Second Ground of Appeal
"41.— Restriction on evidence or questions about complainant's sexual history.
(1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court—
(a) no evidence may be adduced, and
(b) no question may be asked in cross-examination,
by or on behalf of any accused at the trial, about any sexual behaviour of the complainant.
(2) The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such leave unless it is satisfied—
(a) that subsection (3) or (5) applies, and
(b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.
(3) This subsection applies if the evidence or question relates to a relevant issue in the case and either—
(a) that issue is not an issue of consent; or
(b) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused; or
(c) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar—
(i) to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or
(ii) to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event,
that the similarity cannot reasonably be explained as a coincidence.
(4) For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.
(5) This subsection applies if the evidence or question—
(a) relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; and
(b) in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused.
(6) For the purposes of subsections (3) and (5) the evidence or question must relate to a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant (and accordingly nothing in those subsections is capable of applying in relation to the evidence or question to the extent that it does not so relate)."
[…]
Discussion
The Issues of Principle
The First Issue of Principle
Identifying the circumstances when it is necessary for investigators to seek details of a witness's digital communications. These are usually, but by no means always, electronic exchanges conducted by way of multiple platforms on smart mobile telephones, tablets or computers. These platforms are so numerous that it is pointless to attempt to list examples. In essence, the question in this context is when does it become necessary to attempt to review a witness's digitally stored communications? The linked question is when is it necessary to disclose digital communications to which the investigators have access?
The Second Issue of Principle
When it is necessary, how should the review of the witness's electronic communications be conducted?
The Third Issue of Principle
What reassurance should be provided to the complainant as to ambit of the review and the circumstances of any disclosure of material that is relevant to the case?
The Fourth Issue of Principle
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?
a. Sections 3(1)(a) and 23(1) of the Criminal Procedure and Investigations Act 1996 ("CPIA");
b. The Code of Practice to the CPIA (March 2015) ("CoP") and in particular paragraph 3.5;
c. The Attorney General's Guidelines on Disclosure (December 2013);
d. The Crown Prosecution Service's "Guidelines on Communication Evidence" (January 2018); and
e. The "Guide to 'reasonable lines of the enquiry' and communications evidence" (July 2018) by the Director of Public Prosecution, particularly paragraphs 13 – 19.
The First Issue of Principle: identifying the circumstances when it becomes necessary for the investigators to seek details of a witness's digital communications and thereafter to disclose material to which they have access
"3.— Initial duty of prosecutor to disclose
(1) The prosecutor must—
(a) disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused,"
[…]
"In conducting an investigation, the investigator should pursue all reasonable lines of inquiry, whether these point towards or away from the suspect. What is reasonable in each case will depend on the particular circumstances. For example, where material is held on computer, it is a matter for the investigator to decide which material on the computer it is reasonable to inquire into, and in what manner."
"35. If material does not weaken the prosecution case or strengthen that of the defendant, there is no requirement to disclose it. For this purpose the parties' respective cases should not be restrictively analysed. But they must be carefully analysed, to ascertain the specific facts the prosecution seek to establish and the specific grounds on which the charges are resisted. The trial process is not well served if the defence are permitted to make general and unspecified allegations and then seek far-reaching disclosure in the hope that material may turn up to make them good. Neutral material or material damaging to the defendant need not be disclosed and should not be brought to the attention of the court. […]" (our emphasis)
"It is important for investigators and prosecutors to remember that the duty under the CPIA Code of Practice is to "pursue all reasonable lines of enquiry including those that point away from the suspect". Lines of enquiry, of whatever kind, should be pursued only if they are reasonable in the context of the individual case. It is not the duty of the prosecution to comb through all the material in its possession [...] on the lookout for anything which might conceivably or speculatively assist the defence. The duty of the prosecution is to disclose material which might reasonably be considered capable of undermining its case or assisting the case for the accused which they become aware of, or to which their attention is drawn" (our emphasis).
"[…] Victims do not waive... their right to privacy under article 8 of the ECHR, by making a complaint against the accused. The court, as a public authority, must ensure that any interference with the right to privacy under article 8 is in accordance with the law, and is necessary in pursuit of a legitimate public interest […]".
44. It was suggested on behalf of the defence in the course of argument that it is now entirely usual practice in cases involving allegations of sexual assault, that the mobile phone of a complainant should be examined. This is not and should not be thought to be correct. What is a reasonable line of enquiry depends on the facts of each case.
"24. […] 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 the phone of any complainant who makes an allegation of a sexual offence. […] 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."
"13.The examination of mobile devices belonging to the 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 requirement for even a level 1 examination to be undertaken. Examples of this would include sexual offences committed opportunistically against strangers, or historic allegations where there is considered to be no prospect that the complainant's phone will retain any material relevant to the 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."
The Second Issue of Principle: when a properly founded request is made, how should the review of the witness's electronic communications be conducted?
"The investigator must retain material obtained in a criminal investigation which may be relevant to the investigation. Material may be photographed, video-recorded, captured digitally or otherwise retained in the form of a copy rather than the original at any time, if the original is perishable; the original was supplied to the investigator rather than generated by him and is to be returned to its owner; or the retention of a copy rather than the original is reasonable in all the circumstances."
"16. […] This will […] be the case where, beyond the issue of consent being raised at all by either complainant or accused, the credibility of the complaint or reliability of the complainant is put in issue from the outset and in circumstances that make a detailed examination of the complainant's phone necessary. This is a case by case assessment, but examples would include cases where the account of the complainant or an account provided by an accused either in interview or to others at a stage identifies a need to examine the past history and content of contact between the complainant and accused, or the complainant and an identified third party, and where there it is thought likely to be material of a kind that a level 1 search may not identify relevant to such issues."
A41. In some cases the sift may be conducted by an investigator/disclosure officer manually assessing the content of the computer or other digital material from its directory and determining which files are relevant and should be retained for evidence or unused material.
A42. In other cases such an approach may not be feasible. Where there is an enormous volume of material it is perfectly proper for the investigator/disclosure officer to search it by sample, key words, or other appropriate search tools or analytical techniques to locate relevant passages, phrases and identifiers.
A43. In cases involving very large quantities of data, the person in charge of the investigation will develop a strategy setting out how the material should be analysed or searched to identify categories of data. Where search tools are used to examine digital material it will usually be appropriate to provide the accused and his or her legal representative with a copy of reasonable search terms used, or to be used, and invite them to suggest any further reasonable search terms. If search terms are suggested which the investigator or prosecutor believes will not be productive - for example because of the use of common words that are likely to identify a mass of irrelevant material, the investigator or prosecutor is entitled to open a dialogue with the defence representative with a view to agreeing sensible refinements. The purpose of this dialogue is to ensure that reasonable and proportionate searches can be carried out.
A44. It may be necessary to carry out sampling and searches on more than one occasion, especially as there is a duty on the prosecutor to keep duties of disclosure under review. To comply with this duty it may be appropriate (and should be considered) where further evidence or unused material is obtained in the course of the investigation; the defence statement is served on the prosecutor; the defendant makes an application under section 8 of the CPIA for disclosure; or the defendant requests that further sampling or searches be carried out (provided it is a reasonable line of enquiry)."
"[…] If the submission is made that it was the duty of the Crown to trawl through every word or byte of this material in order to see whether any of it was capable of undermining the Crown's case or assisting that of the appellant, we do not agree. […] Where there is an enormous volume of material, as there was here, it is perfectly proper for the Crown to search it by sample or, as here, by key words. […]"
"The law is prescriptive of the result, not the method
36. This is particularly relevant in respect of a case such as this where the prosecution has recovered vast volumes of electronic material. In our judgment, it has been clear for some time that the prosecution is not required to do the impossible, nor should the duty of giving initial disclosure be rendered incapable of fulfilment through the physical impossibility of reading (and scheduling) each and every item of material seized; common sense must be applied. In such circumstances, the prosecution is entitled to use appropriate sampling and search terms and its record-keeping and scheduling obligations are modified accordingly: […].
37. […] The right course at the stage of initial disclosure is for the prosecution to formulate a disclosure strategy, canvass that strategy with the court and the defence and to utilise technology to make an appropriate search or conduct an appropriate sampling exercise of the material seized. That searches and sampling may subsequently need to be repeated (to comply with the prosecutor's continuing duty of disclosure under s.7A of the CPIA or to respond to reasoned requests from the defence under s.8 ) is neither here nor there; the need for repeat searches and sampling does not invalidate the approach to initial disclosure involving such techniques. The problem of vast quantities of electronic documents has, in a sense, been created by technology; in turn, appropriate use must be made of technology to address and solve that problem."
The Third Issue of Principle: what reassurance should be provided to the complainant as to ambit of the review and the circumstances of any disclosure of material that is relevant to the case?
The Fourth Issue of Principle: what is the consequence if the complainant refuses to permit access to a potentially relevant device or if the complainant deletes relevant material?
"15. In considering the question of prejudice to the defence, it seems to us that it is necessary to distinguish between mere speculation about what missing documents or witnesses might show, and missing evidence which represents a significant and demonstrable chance of amounting to decisive or strongly supportive evidence emerging on a specific issue in the case. The court will need to consider what evidence directly relevant to the appellant's case has been lost by reason of the passage of time. The court will then need to go on to consider the importance of the missing evidence in the context of the case as a whole and the issues before the jury. Having considered those matters, the court will have to identify what prejudice, if any, has been caused to the appellant by the delay and whether judicial directions would be sufficient to compensate for such prejudice as may have been caused or whether in truth a fair trial could not properly be afforded to a defendant."
"66. […] the question of whether the defendant can receive a fair trial when relevant material has been accidentally destroyed will depend on the particular circumstances of the case, the focus being on the nature and extent of the prejudice to the defendant. A careful judicial direction, in many instances, will operate to ensure the integrity of the proceedings. This general statement is not meant to preclude the possibility that a fair trial may sometimes be unachievable when relevant material cannot be deployed (see, for instance, R. v Sheikh (Anver Daud) [2006] EWCA Crim 2625). But we stress that the strength and the utility of the judge's direction is that it focuses the jury's attention on the critical issues that they need to have in mind."
"65. It is important to have in mind the wide variations in the evidence relied on in support of prosecutions: no two trials are the same, and the type, quantity and quality of the evidence differs greatly between cases. Fairness does not require a minimum number of witnesses to be called. Nor is it necessary for documentary, expert or forensic evidence to be available, against which the credibility and reliability of the prosecution witnesses can be evaluated. Some cases involve consideration of a vast amount of documentation or expert/forensic evidence whilst in others the jury is essentially asked to decide between the oral testimony of two or more witnesses, often simply the complainant and the accused. Furthermore, there is no rule that, if material has become unavailable, that of itself means the trial is unfair because, for instance, a relevant avenue of enquiry can no longer be explored with the benefit of the missing documents or records. It follows that there is no presumption that extraneous material must be available to enable the defendant to test the reliability of the oral testimony of one or more of the prosecution's witnesses. In some instances, this opportunity exists; in others it does not. It is to be regretted if relevant records become unavailable, but when this happens the effect may be to put the defendant closer to the position of many accused whose trial turns on a decision by the jury as to whether they are sure of the oral evidence of the prosecution witness or witnesses, absent other substantive information by which their testimony can be tested."
The Individual Appeals
Carl Bater-James
The First Ground of Appeal
"If a judge has directed himself or herself correctly, this court will be very slow to interfere with a ruling either as to admissibility […]. It will not interfere unless the judge's judgment as to the capacity of prior events to establish propensity is plainly wrong, or discretion has been exercised unreasonably in the Wednesbury sense: Associated Provincial Picture Houses v Wednesbury Corpn [1948] 1 KB 223"
"3. We have some general observations. Several of the decisions or rulings questioned in these appeals represent either judgments by the trial judge in the specific factual context of the individual case, or the exercise of a judicial discretion. The circumstances in which this Court would interfere with the exercise of a judicial discretion are limited. The principles need no repetition. However we emphasise that the same general approach will be adopted when the Court is being invited to interfere with what in reality is a fact-specific judgment. As we explain in one of these decisions, the trial judge's "feel" for the case is usually the critical ingredient of the decision at first instance which this Court lacks. Context therefore is vital. The creation and subsequent citation from a vast body of so-called "authority", in reality representing no more than observations on a fact specific decision of the judge in the Crown Court, is unnecessary and may well be counterproductive. This legislation has now been in force for nearly a year. The principles have been considered by this Court on a number of occasions. The responsibility for their application is not for this Court but for trial judges.
4. Finally, even if it is positively established that there has been an incorrect ruling or misdirection by the trial judge, it should be remembered that this Court is required to analyse its impact (if any) on the safety of any subsequent conviction. It does not follow from any proved error that the conviction will be quashed."
"100 Non-defendant's bad character
(1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if—
(a) it is important explanatory evidence,
(b) it has substantial probative value in relation to a matter which—
(i) is a matter in issue in the proceedings, and
(ii) is of substantial importance in the context of the case as a whole,
or
(c) all parties to the proceedings agree to the evidence being admissible.
(2) For the purposes of subsection (1)(a) evidence is important explanatory evidence if—
(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and
(b) its value for understanding the case as a whole is substantial.
(3) In assessing the probative value of evidence for the purposes of subsection (1)(b) the court must have regard to the following factors (and to any others it considers relevant)—
(a) the nature and number of the events, or other things, to which the evidence relates;
(b) when those events or things are alleged to have happened or existed;
(c) where—
(i) the evidence is evidence of a person's misconduct, and
(ii) it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct,
the nature and extent of the similarities and the dissimilarities between each of the alleged instances of misconduct;
(d) where—
(i) the evidence is evidence of a person's misconduct,
(ii) it is suggested that that person is also responsible for the misconduct charged, and
(iii) the identity of the person responsible for the misconduct charged is disputed,
the extent to which the evidence shows or tends to show that the same person was responsible each time.
[…]"
The Second Ground of Appeal
The Third Ground of Appeal
Sultan Mohammad
The First Ground of Appeal
The Second Ground of Appeal