Mobile Phones and Sexual Offences – A Commentary by Max Hardy

01 May 2019

When something bad happens between two people in a locked room only those two people can ever know for sure what happened. That is the central, simple and fiendish problem that bedevils the vast majority of sex cases.  It is a problem that weighs heavily on every single person and agency involved in the handling of sex crime in the criminal justice system.

Being falsely accused of a sex crime and, still more terrifyingly, convicted of one means life ruination for a defendant. Being accused of lying about being a victim of sex crime is likely to be surpassed in trauma only by the actual assault and could even, in some circumstances, be more traumatising. The trial process is the imperfect but nonetheless the best system we have devised for determining how to determine fairly such allegations.

It is a fine balance and the burden and standard of proof is the safeguard against wrongful convictions. Victims and campaigners enquire what the safeguard is against wrongful acquittals and theirs is not an illegitimate enquiry. A great deal has been done in the last 20 years to try and prevent wrongful acquittals achieved by irrelevant or prejudicial attacks on the character of complainants. Contrary to some very misleading reports in the media defence barristers are not allowed to trawl through the sexual history of complainants in a muck-raking exercise.

But, because the vast majority of sex cases depend on a jury's assessment of the credibility of the person making the allegation and the credibility of person defending the allegation material which bears on credibility must be relevant and must be seized.

And so to mobile phones. It won't surprise you to hear that defendants have no power to stop police seizing and download the contents of their mobile phones. Images and communications that assist the prosecution case will be served as evidence in the case. Images and communications that assist the defence case will be disclosed to the defence.

When a complainant makes a police complaint of a sexual offence her (and it may of course be his) mobile phone is not necessarily seized or examined as a matter of course. If it is not seized or examined, however, and is subsequently lost, destroyed, sold or interacted with so that its contents are edited or deleted that can create a serious problem.

The problem is that if the defendant is charged he (and it may of course be she) may request disclosure of content from that phone.  In some circumstances a defendant may know precisely what the content is on a complainant's phone that would assist his case. For example, if messages have passed between the parties the defendant can request revelation of those messages.

However in some circumstances the defendant may not know what there is on the complainant's phone that might assist but has cause to believe that there may be content that might assist. For example the complainant may have texted/WhatsApped/Snapchatted/Facebook messaged/Twitter Direct messaged/emailed a friend after a sexual encounter in such a way that makes it plain that consensual sexual activity took place. The defendant won't know about that exchange unless the police and prosecutors look for it, find it and reveal it.

A major difficulty is the sheer profusion of messaging platform and apps contained in almost all phones. If the police do not have the phone then its contents can't be checked and at any trial that can present a problem for the defence and the prosecution also.

What the disclosure laws do not allow are fishing expeditions.  Therefore a defendant is not entitled to demand a wholesale revelation of the contents of a complainant's mobile phone. No proper prosecutor or judge should allow such a thing.  However a defendant is perfectly entitled to ask whether there has been a review of communications, images and social media activity that undermines the prosecution case.  If there has not then such a review should be pursued by the police and here we come to agreement from the complainant and the consequences of it being withheld.

We also come to money and training. Downloading mobile phones is not straightforward. The quantity of information they contain is mind-boggling, transferring that information from police to prosecution to defence is complicated. The vast bulk of that information is likely to have no possible bearing or relevance on an investigation and prosecution of a sexual offence. But some of it might. That requires police that know what the are doing and have the time and resources to do it, it requires prosecutors that know what they are doing and have the time and resources to do it and it requires defence lawyers that know what they are doing and having the time and resources to do it.

It also requires the complainant's consent. If a complainant has intimate photos on her phone that are unrelated to an allegation of sexual assault then they should not be admissible in a trial. If a complainant has social media activity or dating app activity on her phone that are unrelated to an allegation of sexual assault they should not be admissible. The stark reality, however, is that admissibility of that material is a matter for the criminal justice process and not the wishes of the complainant.

There are many aspects of making an allegation of a sexual offence that are capable of being intrusive and traumatic. Examination in a Sexual Assault Referral Centre (SARC) is a very intimate process the results of which are made available as a matter of course to defence lawyers. As criminal justice professionals we cannot pretend to victims that the simple making of an allegation to the police of a wounding to their bodily integrity is the end of the matter. On the contrary it is only the beginning and it always requires proper investigation.

It is however incumbent upon all involved in the investigation and prosecution of these allegations to explain as sensitively and carefully as they can why the intrusion is necessary and justified and that the minimum amount of intrusion necessary takes place. Aggrieved voices criticising the current system are quick to point out that victims can feel that they are the ones on trial. They are not. But the credibility of their allegations are and evidence that bears on credibility should always be discovered and always be made available.

Max Hardy

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