Disclosure - Guidelines on Communications Evidence
- Communications between suspects, complainants or witnesses can be of critical significance whether as evidence in support of the prosecution case or as unused material which either undermines it or assists the defence case. This is particularly so where the complainant and suspect have been in a personal relationship, however briefly, for example, in cases involving allegations of a sexual nature. This guidance is primarily directed to such cases. Its purpose is to ensure that the significance of communication evidence is understood and assessed at the appropriate time and that it is handled correctly. Serious consequences have occurred and will continue to do so if this is not done. Such evidence incudes communications by way of telephone or other electronic device or by social media and is not restricted to communications between the complainant and suspect but may include contact with third parties [see below].
- Investigating officers are required to pursue all reasonable lines of inquiry, whether to exonerate or implicate suspects, under the Code of Practice issued under CPIA 1996. This will often include the obtaining and analysis of communication evidence whether it originates from devices or social media accounts belonging to the complainant or the suspect or, in some cases, to third parties. Prosecutors should be alert to the often critical importance of such evidence and, where such reasonable lines of inquiry have not been undertaken, should provide appropriate advice to the police to pursue them. This might be advice to obtain devices which have not hitherto been seized or to examine those which have in an appropriate way. In the category of cases to which this guidance is primarily directed, it would be rare indeed for communication evidence not to feature as part of the police investigation.
- The Attorney General's Guidance on Disclosure 2022 provide assistance on what amounts to a reasonable line of enquiry. The investigator must decide how best to pursue a reasonable line of enquiry in respect of such material, ensuring that the extent and manner of it examination are commensurate with the issues in the case. The guidelines state at paragraph 13c:
The assessment of reasonableness must be made on a case-by-case basis and regard may be had to:
- the prospect of obtaining relevant material; and
- what the perceived relevance of that material is, having regard to the identifiable facts and issues in the individual case
- This should be achieved in consultation with the prosecutor, if appropriate. Therefore, the following advice is provided:
- Consider asking the suspect or / and complainant whether there might be communication material which may have a bearing on the case.
- It is necessary carefully to consider the facts of a particular case, the issues raised and any potential defence in order to decide what amounts to a reasonable line of enquiry.
- Prosecutors should provide assistance to investigators when making such a decision and, ideally, agree with them what amounts to a reasonable line of enquiry.
- In reaching such a decision, prosecutors are reminded that the whole of a relevant download falls to be considered i.e. all forms of message communication [even if deleted] and photographs / videos if stored. Equally the investigation should not be limited to messages between the complainant and the suspect only as communications between either of them and others may have an impact on the case, for example, when reference is made by either to the events which are the subject of the allegations.
- In some cases it may be necessary for the whole of a download to be examined. The extent of any investigation of digital material should only be confined if it is not considered to be a reasonable line of enquiry.
- If the investigation reveals communication evidence which assists the prosecution case, then this should be provided to the prosecutor to consider when making a charging decision.
- For the avoidance of any doubt, in all bail cases, prosecutors must be in a position properly to assess the potential impact of communication evidence before the charging decision is made. The National File Standard requires investigators to provide any material that undermines the prosecution case or assists the defence prior to charge which includes any such communication material. Prosecutors should not make a charging decision until this has been provided.
- If the investigation reveals communication material relevant to the investigation of the case, but which is not considered to assist it, then after charge it must be treated as unused material in accordance with the guidance in the Disclosure Manual. This includes:
- The telephone / device and any download deriving from it must be listed on the MG6C as separate items along with a sufficient description in compliance with Chapter 7 of the Disclosure Manual.
- The material which might be capable of undermining the prosecution case or assisting the defence case must be identified in the MG6E in compliance of Chapter 10 of the Disclosure Manual.
- The Investigating Officer should communicate to the prosecutor at an early stage of the investigation what material they have in the their possession, and the reason, and what actions are being taken in respect of such material why that material is held, and explain the reasons for such actions being taken.
- In scenarios where a witness refuses to provide material the Attorney General Guidelines provides:
"13(f). The refusal by a witness to provide private or personal material requires an investigator and prosecutor to consider the information the witness has been provided (and could be provided) with regard to the use of their personal material, the reasons for refusal, and how the trial process could address the absence of the material."
- Disclosure is an ongoing process and the impact of communication evidence must be reconsidered as appropriate. Most particularly, after receipt of the Defence Statement the procedures in Chapter 15 of the Disclosure Manual should be followed. This requires the prosecutor to consider the Defence Statement and identify the keys issues. It then requires the disclosure officer to re- examine all communication material to ascertain if any of it meets the disclosure test and, if so, to bring it immediately to the attention of the prosecutor.
- Should any communications material need to be disclosed then it must be redacted appropriately so as to preserve confidentiality.