The Court considered the issue of disclosure of digital evidence as it related to cases involving complaint of sexual offending .
It identified that the issues to be addressed were :
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 asto 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?
On the first issue the Court concluded that there is no obligation on investigators to seek to review a witness’s digital material without good cause. The request to inspect digital material, in every case,must have a proper basis, usually that there are reasonable grounds to believe that it mayreveal material relevant to the investigation or the likely issues at trial(“a reasonable line of inquiry”).
It is clear, therefore, that investigators should notrequestsuch materialand applicationsto the courtshould notbe granted if they come within the category of a ‘fishing expedition’.
The Court emphasised that :
We stress, therefore, that mobile telephones or other devices should not be obtained as a matter of routine by investigators from witnesses. This is reflected in the "Guide to ‘reasonable lines of the enquiry’ and communications evidence" (July 2018) by the Director of Public Prosecution (“DPP”).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 prospectthat 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.”
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.
On the Second issue the Court indicated that :
In conclusion on the second issue and answering the question:“how should the review of the witness’s electronic communications be conducted?”,investigators will need to adoptan incremental approach. First, toconsiderwith care the nature and detail of anyreviewthat is required, theparticularareasthat needto be looked at and whether this can happen without recourse to the complainant’s mobile telephone or other device.Second, and only if it is necessary to look at the complainant’s digital device or devices, acritical question is whether it issufficient simply to view limitedareas (e.g. an identified string of messages/emails or particular postings on social media). In some cases, this will be achieved by simply looking at the relevant material and taking screenshots or making some other record, without taking possession of, or copying, the device. Third, if a more extensive enquiry is necessary, the contents of the device should be downloaded with the minimum inconvenience to the complainant and, if possible, it should be returned without any unnecessary delay. If the material is voluminous, consideration should be given to appropriately focussed enquiries using search terms, a process in which the defendant should participate. It may be possible to apply data parameters to any search. Finally, appropriate redactions should be made to any disclosed material to avoid revealing irrelevant personal information.
On the Third issue :
On the third issue and answering the question: “what reassurance should be provided to the complainant?”, the complainant should be told i) that the prosecution will keep him or her informed as to any decisions that are made as to disclosure, including how long the investigators will keep the device; what it is planned to be “extracted” from it by copying; and what thereafter is to be “examined”, potentially leading to disclosure; ii) that in any event, any content within the mobile telephone or other device will only be copied or inspected if there is no other appropriate method of discharging the prosecution’s disclosure obligations; and iii) material will only be provided to the defence if it meets the strict test for disclosure and it will be served in a suitably redacted form to ensure that personal details or other irrelevant information are not unnecessarily revealed (e.g.photographs, addresses or full telephone numbers).
In conclusion on the fourth issue and answering the question: “what is the consequence if the complainant refuses to permit access to a potentially relevant deviceor if the complainant deletes relevant material?”, it is important to look carefully atthe reasons for a refusal to permit access and to furnish the witness with an explanation and reassurance as to the procedure that will be followed if the device is made available to the investigator.If it is suggested that the proceedings should be stayed, the court will need to consider the adequacy of the trial process, and whether this will ensure there is fairness to the defendant, particularly by way of cross-examination of the witness, coupled with appropriate judicial directions.The court should not be drawn into guessing at the content and significance ofthe material that may have becomeunavailable. Instead, the court must assess the impact of the absence of the particular missing evidence and whether the trial process can sufficiently compensate for its absence. An application can be made for a witness summons for the mobile telephone or other device to be produced. If the witness deletes material, although each case will need to be assessed on its own facts, we stress the potential utility of cross-examination and carefully crafted judicial directions.If the proceedings are not stayed and the trial proceeds, the uncooperative stance by the witness, investigated by appropriate questioning, will be an important factor that the jury will be directed to take into account when deciding, first, whether to accept the evidence of the witness and, second, whether they are sure of the defendant’s guilt.