Tom Little QC in important case setting out the key principles on obtaining and searching mobile telephones of complainants.
Tom Little QC was instructed by the CPS in the Court of Appeal in two unlinked appeals which were listed together so that the Court of Appeal could provide clear guidance on the correct approach for the Police and the CPS on when to obtain the mobile telephones or other electronic devices of Prosecution witnesses and in particular complainants in allegations of sexual offending. The judgment in R v Bater-James and Mohammed given by Fulford, LJ (the Vice President of the Court of Appeal (Criminal Division)) was handed down on 23rd June 2020.
The Court of Appeal have set out four clear principles on the correct approach to these cases. The two most important observations made by the Court for criminal lawyers are the following:
First, “There is no presumption that a complainant’s mobile telephone or other devices should be inspected, retained or downloaded, any more than there is a presumption that investigators will attempt to look through material held in hard copy. There must be a properly identifiable foundation for the inquiry, not mere conjecture or speculation. Furthermore, as developed below, if there is a reasonable line of enquiry, the investigators should consider whether there are ways of readily accessing the information that do not involve looking at or taking possession of the complainant’s mobile telephone or other digital device.”
Second, “Digital material of the kind currently under consideration is no different from any other information or record. A single mobile device now frequently contains an array of information that 40 years ago would have been found in multiple different locations, often in “hard copy” and stored separately …..The ease with which this material is now accessible does not make it more susceptible to scrutiny than would have been the case if it was only available in hard copy.”
A copy of the judgment is here