Issue 148  27th June 2020

We turn to the second argument which concerns the impact of the pandemic upon the conditions under which the applicant is serving his sentence. We are informed by counsel that the applicant spends the entirety of each day, save for 30 minutes, locked in his cell and that he is unable to have any social visits...

We of the view that in the present, exceptional, circumstances it is appropriate to take the conditions under which the applicant is presently held in custody into account. We do not of course criticise the judge for the sentence imposed because the judge was wholly unaware of the change in prison conditions that would arise just days after the sentence was imposed.

These two otherwise unrelated cases have been listed together to provide the court an opportunity to consider various issues relating to the retention, inspection, copying, disclosure and deletion of the electronic records held by prosecution witnesses. These issues frequently arise in the context of sexual offences as regards material stored on complainants' mobile telephones, but they occur in a wide range of other circumstances...

In conclusion on the first issue, and answering the question: "when does it become necessary to attempt to review a witness's digitally-stored communications and when is it necessary to disclose digital communications to which the investigators have access?", we stress that regardless of the medium in which the information is held, a 'reasonable line of enquiry' will depend on the facts of, and the issues in, the individual case, including any potential defence. There is no presumption that a complainant's mobile telephone or other devices should be inspected, retained or downloaded, any more than there is a presumption that investigators will attempt to look through material held in hard copy. There must be a properly identifiable foundation for the inquiry, not mere conjecture or speculation. Furthermore, as developed below, if there is a reasonable line of enquiry, the investigators should consider whether there are ways of readily accessing the information that do not involve looking at or taking possession of the complainant's mobile telephone or other digital device. Disclosure should only occur when the material might reasonably be considered capable of undermining the prosecution's case or assisting the case for the accused.

It is clear from the transcript of 8 May 2018 that the judge had concerns about the proposed five-day trial and the prospect of the appellant being found guilty. We accept that given the judge's knowledge of the history of the matter, he was concerned as to the position in which the appellant found himself and was genuinely trying to assist. Unfortunately, his efforts did not result in the provision of appropriate assistance nor advice. The judge knew of the appellant's intention to rely upon the defence of reasonable excuse but appeared to take no account of it when addressing the appellant. His comments ([13] above) that the admitted technical breach is still a breach and that the appellant should not be pleading not guilty carried with them the clearest judicial indication that the appellant had no defence to the charges and should be pleading guilty. The advice was not correct...

Having carefully considered the transcript of the proceedings we have concluded that the judge's interventions did place pressure upon this unrepresented appellant to plead guilty to the three counts contained in the indictment. We accept that within those judicial interventions no acknowledgement was made of the defence of reasonable excuse. As a result, the appellant wrongly believed that he had no defence to the three counts and would be found guilty. It follows, and we so find, that the guilty pleas which he subsequently entered do not represent a true acknowledgement of guilt.

The Criminal Procedure Rules are not decorative. They are there for a reason. The structure and language of the rules, if complied with, should ensure that tricky questions of procedure or evidence are addressed by the parties in time, so that, where dispute arises, the parties have developed positions which can be laid clearly before the judge who must resolve the problem. That is the point of the Rules. This court is acutely aware of the pressures upon practitioners. But in our judgment this case represents a good example of the problems which can arise when the rules are not complied with.

It is simply not sufficient, where complex hearsay evidence is sought to be introduced, for the Crown to remark that the evidence was in a record of an ABE interview or in a witness statement and that no explicit objection has been taken by the defence upon whom such evidence has been served. The notice requirement on the Crown is not implicitly waived by defence silence, or even where, as here, the defence have made suggestions for editing the ABE interview. The purpose of the rules is to ensure that both sides give their minds properly to what can be technical and difficult issues of admissibility...