In the recent Judgment of the Court of Appeal, Criminal Division, in R v Bater-James and Mohammed, clear guidance was given on the correct approach for the Police and the CPS covering the obtaining of mobile telephones and other electronic devices of Prosecution witnesses.

In particular, consideration was given concerning complainants in allegations of sexual offending.

The issues considered included the retention, inspection, copying, disclosure and deletion of electronic records held by Prosecution witnesses which have particular impact on defence preparation, especially in relation to offences of a sexual nature. 

Kangs Solicitors has a proven track record spanning more than twenty years of successfully representing clients accused of sexual offences.

We have acted in many high-profile investigations such as the wide-ranging Metropolitan Police investigation ‘Operation Yewtree’.

Recognised as one of the leading criminal defence firms in the country, we are top ranked in Band 1 and Tier 1 for our work in this area by both the leading legal directories Chambers UK and the Legal 500.

For an initial no obligation discussion, please call our Team at any of our offices detailed below:

The Court Of Appeal Judgment | Kangs Sexual Offences Defence Solicitors

The Court of Appeal addressed four main areas as follows:

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.

  • In every case, a request by the police to inspect digital material, for example a mobile telephone, has to have ‘proper basis’ meaning that there are reasonable grounds to believe that the examination might reveal material relevant to the investigation or the likely issues at trial.
  • There has to be an ‘identifiable reasonable line of enquiry’ which is dependent on the specific facts of the individual case. 
  • There is no presumption that in every case a mobile phone would be examined.
  • Furthermore, ways of accessing the material should be considered that do not necessarily involve taking possession of the device. 
  • Whether the material discovered is disclosed to the defence remains subject to the usual test of disclosure; i.e. when the material might reasonably be considered capable of undermining the Prosecution case or assisting the defence case. 

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

  • The Court stated that an incremental approach should be used by investigators. 
  • It first has to be considered whether the review could take place without looking at the device. 
  • If it is necessary to look at the device, can the review be limited, say for example, to one identifiable series of text messages? 
  • Investigators should consider whether evidence can be obtained without seizing the device, for example, by taking screenshots of the evidence. 
  • If, however, a more thorough examination is necessary the contents of the device should be downloaded and the device returned to the witness without unnecessary delay. 

What reassurance should be provided to the complainant as to the ambit of the review and the circumstances of any disclosure of material relevant to the case?

Investigators are under a duty to inform a witness of four things:

  1. Decisions regarding disclosure, how long they would have the device and details of the examination;
  2. Any content would only be copied or inspected if there was no other method available;
  3. Material would only be supplied to the defence if it met the disclosure test;
  4. Material would be redacted to ensure personal data was not revealed.

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

  • If a witness refused to provide their device for examination or, in fact, deleted material from their device, a Court would have to assess the impact on the absence of the missing evidence and whether the trial process could sufficiently compensate for its absence. 
  • A witness summons could be applied for in order to gain access to the device. 
  • A witness could be cross-examined upon the uncooperative stance which would be an important factor a jury could properly take into account. 

How Can We Help You? | Kangs Criminal Defence Team

Our team of specialist solicitors provides the following services:

  • a preliminary consultation to provide an initial assessment of your case
  • representation at a voluntary interview under caution
  • representation at an interview under caution following arrest
  • preparation of pre-charge representations to the CPS or Police
  • representation in Magistrates’ Court and Crown Court proceedings
  • advice on the choice of barrister or QC as cross-examination of the complainant and other prosecution witnesses in court proceedings is often a key element in such cases. We have a strong working relationship with the finest criminal barristers and QCs in the country.

A Proven Track Record in Serious Sexual Offence Cases

Many of our cases remain confidential but a small sample of cases relating to sexual offences conducted by our team and reported on our website includes:

Who Can I Contact For Help? | Kangs Criminal Defence Solicitors

Our expert 24/7 Rapid Response Police Station Team is here to assist you on 07989 521 210 should you require advice and assistance out of office hours.

Hamraj Kang leads an award-winning team of lawyers nationally recognised for its excellence and expertise in the area of sexual offences investigations and prosecutions.

We welcome enquiries by telephone or email.

We provide an initial no obligation consultation from our offices in London, Birmingham and Manchester.

Alternatively, we provide initial consultations by telephone or video conferencing.

Hamraj Kang
hkang@kangssolicitors.co.uk
07976 258171 | 020 7936 6396 | 0121 449 9888

Helen Holder
hholder@kangssolicitors.co.uk
0121 449 9888 | 020 7936 6396

Suki Randhawa
srandhawa@kangssolicitors.co.uk
0121 449 9888 | 020 7936 6396