The Truth Laid Bare - Mobile Phones and Sexual Offences

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 can not 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.

Pay Prosecutors Properly - Justice Demands It

When was the last time you heard a prosecution barrister speak in public? If you're struggling to recall a time, don't worry, they almost never do. A notable exception to this is the BBC's 'The Prosecutors' which is a documentary series following the work of CPS lawyers and, in a few cases,  the barristers that prosecute for them.

In the public mind English and American criminal justice are essentially one and the same thing hence English lawyers decrying the presence of gavels in English media (we absolutely don't use them) and reference to witnesses taking the stand (always called the witness box). One ubiquitous feature of American criminal cases is the running commentary and ready interaction with the media provided by District Attorneys. This does not happen here.

Occasionally in very high profile cases a CPS lawyer may make a media appearance to announce that charges have been brought before solemnly reminding viewers that the defendant is entitled to a fair trial. There will then be an embargo on talking to the press until either there is a conviction when the same lawyer will announce that justice has been served or there is an acquittal and a terse announcement made that the jury's verdict is respected. These media appearances are carefully prepared or even scripted and focus on the facts and absolutely do not function as commentary or an opportunity for opinion.

You will never, ever hear from the barrister that actually prosecuted the trial in court. There are a number of reasons for this:

1. The vast majority of prosecution barristers are independent, self-employed lawyers that belong to a chambers. They are not employed lawyers of the CPS. The CPS does employ advocates but they are comparatively few in number and when they prosecute in court there is almost always a reviewing lawyer responsible for progressing the case but not presenting it in court. Barristers like me act as agents or hired guns. It therefore stands to reason that when the media are spoken to it would be by an employee of the state's prosecution agency and not by an agent.

2. Another reason why you never hear from prosecution barristers is that most of them take their self-defined role as ministers of justice very seriously. This slightly precious concept is encapsulated in the maxim: the Crown suffers no losses and wins no victories. In other words when you prosecute you're not in it to win it you are there to ensure that justice is achieved and if that results in an acquittal then you have done your job. There is a concern on the part of many that engaging with the prurient interest of the media in some way taints justice with a result that is at best unseemly and at worst puts convictions in jeopardy.

3. There is also a clear understanding that, as a prosecution barrister, it is what is said and done in court that counts. You learn early on in pupillage never to express an opinion in court, it is why barristers should always say 'I submit' not 'I think'. Anyone who prosecutes regularly at a reasonable level of seniority can expect to see their name in the papers, often misspelled, especially if the case involves a celebrity or a scandal but when the judge rises the shutters come down with the journalists.

This post is no plea for prosecutors on primetime but it is a cautionary note. Just because you don't see prosecution barristers and just because you don't hear them doesn't mean they aren't there doing a very serious and vital job. Unfortunately the importance of that job is not reflected in the pay. If you have been reading this and thinking it weird that the CPS uses outsiders to prosecute the majority of its cases you would be right to think that, but there is one simple reason: money.

When I am sick the CPS does not pay me. When I am on holiday the CPS does not pay me. When I am caring for my child the CPS does not pay me. When I need training the CPS does not pay. When I need to buy law books the CPS does not pay. When I need a laptop with which to present evidence at trial the CPS does not pay. When I need to buy a replacement wig (!) the CPS does not pay. When (if) I retire the CPS will not pay.

If I screw up the CPS can stop instructing me tomorrow. If I annoy the CPS can stop instructing me tomorrow. If I embarrass the CPS can stop instructing me tomorrow. In short what the CPS loses by not employing me it gains in savings and flexibility.

It won't surprise you to hear that prosecution barristers are not, in the main, a radical and militant bunch. Accordingly they have tolerated an unacceptable situation in which fees have been frozen for many years and a significant amount of work goes unpaid. The Criminal Bar Association has sent a list of its most immediately pressing demands to the CPS and a review of fees for prosecution barristers is underway. It must result in meaningful improvements in rates of pay.

The new DPP Max Hill QC is a highly distinguished and accomplished prosecution barrister himself who as a former chair of the CBA is acutely aware of the Bar's discontent over remuneration. Obviously the CPS wants and will demand value for money but when people are not paid properly quality suffers and justice is imperilled. In the hardest and most serious cases the CPS must instruct the most able barristers not just the ones prepared to work for the money offered.

Quality costs but when murderers and rapists might be roaming the streets it's a price worth paying.