Q&As

What obligations does the prosecution have to obtain and disclose evidence from the mobile phones of witnesses/victims in criminal prosecutions? What happens if the witness/victim deletes the data?

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Produced in partnership with Jessica Maguire of Corker Binning
Published on LexisPSL on 14/10/2020

The following Corporate Crime Q&A produced in partnership with Jessica Maguire of Corker Binning provides comprehensive and up to date legal information covering:

  • What obligations does the prosecution have to obtain and disclose evidence from the mobile phones of witnesses/victims in criminal prosecutions? What happens if the witness/victim deletes the data?
  • Issue of principle 1—Circumstances when it is necessary for investigators to seek details of a witness’s digital communication
  • Issue of principle 2—If necessary, how should the review of the witness’s electronic communications be conducted?
  • Issue of principle 3—What reassurances should be provided to the complainant as to the scope of the review and the circumstances of any disclosure of material that is relevant to the case?
  • Issue of principle 4—What is the consequence if the complainant refuses access and/or deletes relevant material

The main issues raised in the appeal of R v Baxter concerned digital devices and evidence available from witnesses. The appeal raised four issues of principle that frequently arise in ongoing police investigations in relation to the mobile device of a witness.

Issue of principle 1—Circumstances when it is necessary for investigators to seek details of a witness’s digital communication

There is no obligation on the prosecution to automatically obtain a witness’s phone. To request the phone, there must be reasonable grounds to believe it may contain material relevant to the investigation or the likely issues at trial. This will be case specific and will depend on the facts, the issues and any potential defence.

The duty of the prosecutor is to disclose any material which might be reasonably be considered capable of undermining the prosecution’s case or assisting the defence case. This duty is imposed by section 3 of the Criminal Procedure and Investigations Act 1996. This duty is ongoing.

Within the ‘Guide to reasonable lines of enquiry and communication evidence’ produced by the Director of Public Prosecutions in July 2018, it was stressed that mobile phones or other devices should not be obtained as a matter of routine from witnesses. In cases such as historical allegations or sexual offences committe

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