Communication Evidence

Communication evidence is now central to many criminal investigations. Text messages, WhatsApp chats, emails, call data, social media messages, voice notes and other digital exchanges can all play a significant part in whether somebody is charged. In some cases, that material may be relied on by the police or CPS. In others, it may provide context, contradict an allegation, or support the defence at an early stage.  

At Olliers, we understand how stressful it can feel if the police have seized your phone, are asking to examine your messages, or are focusing on digital communication as part of an investigation. Our specialist pre-charge solicitors act quickly to assess what this material may show, whether important context is being missed, and whether representations can be made to avoid a charge altogether.  

If communication evidence may be important in your case, getting legal advice early can make a real difference. The Director’s Guidance on Charging and the wider disclosure framework are designed to ensure that investigators pursue reasonable lines of inquiry and consider material that points both towards and away from a suspect. That can be crucial where messages have been taken out of context or relevant material has not yet been reviewed properly.

Why communication evidence matters before charge 

Before a charging decision is made, investigators and prosecutors should consider the available evidence, any relevant unused material and any further lines of inquiry that could affect whether the evidential test is met. In modern cases, communication evidence is often one of the most important parts of that picture.  

What is communication evidence? 

This kind of evidence may include: 

• text messages and SMS conversations  
• WhatsApp, Signal and other messaging app content 
• emails and email attachments  
• social media messages and posts  
• call logs and call data 
• voice notes, photographs, videos and other material stored on digital devices  
• communications involving complainants, suspects and third parties where those communications may be relevant to the issues in the case

In the right case, communication evidence can go directly to issues such as credibility, context, consent, intention, planning, knowledge, contact between individuals, or whether an allegation is accurate at all. That is why it needs to be handled carefully from the earliest stage of the investigation.  

What happens when police seize or examine devices? 

If the police believe a phone, laptop or other device may contain relevant material, they may seek to seize it and examine the data on it as part of their investigation. The purpose and scope of that examination should be considered carefully, and the investigation should remain proportionate to the issues in the case.  

When a case is referred for a charging decision, investigators should be able to explain the purpose of the examination, why it was reasonable, the extent of any download or copying, whether consent was obtained, and what significance the material may have. Where relevant digital material exists but has not been examined properly, that may affect whether the case is truly ready for a charging decision.  

This can be a worrying stage for clients. Many people are understandably concerned about privacy, delay, and whether private or unrelated material will be swept into the case without proper focus on what is actually relevant. Early legal advice can help protect your position and ensure that the investigation is approached in a fair and proportionate way.  

Common issues we see with communication evidence 

One of the biggest problems with communication evidence is lack of context. A single message, screenshot or extract may look damaging in isolation, but the wider conversation may tell a different story. Tone, sequence, previous exchanges and surrounding events can all matter. It is a mistake to assume that one excerpt gives the full picture.  

Another common issue is incomplete or selective review. Investigators may focus on material that appears to support the allegation while missing messages, call data or third-party communications that point the other way. The charging framework makes clear that reasonable lines of inquiry should be pursued whether they point towards or away from the suspect.  

We also see cases where there are concerns about: 

• incomplete message threads or missing conversations 
• failure to preserve relevant social media or digital material at an early stage  
• insufficient explanation of how device material has been searched or filtered  
• third-party communications not being explored when they may be important to the defence  
• digital material being treated as straightforward when it in fact raises questions about timing, authorship, completeness or significance

Where communication evidence is central to an allegation, those issues can make a real difference to whether a charge should properly be brought.  

How communication evidence can help the defence 

Clients often assume that if the police are interested in messages or social media, that must be bad news. That is not always the case. In many investigations, communication evidence can assist the defence by providing fuller context, exposing inconsistencies, supporting an alternative account, or undermining the reliability of the allegation.  

Depending on the facts, communication evidence may help show: 

• that important messages have been omitted or misunderstood  
• that the timing of events does not fit the allegation  
• that the relationship or background between the parties is more complex than first suggested
• that there are conversations with third parties which support the defence or weaken the prosecution case  
• that further lines of inquiry should be pursued before any charging decision is made

This is one of the reasons why Olliers places such importance on proactive pre-charge work. Where digital material may help a client, we look carefully at how it should be preserved, reviewed and presented as part of any representations against charge.  

Can the police access deleted messages? 

Deleted data is not always gone permanently. When information is deleted from a phone or other electronic device, it is often simply marked as deleted rather than immediately erased, which means specialist digital forensic tools can sometimes recover messages, images, call data and other material, particularly if it has not yet been overwritten. However, recovery is not guaranteed and depends on factors such as the device, how long ago the data was deleted, and whether new data has replaced it.  

Can the police force you to provide your PIN/password? 

In terms of access, the police will usually ask for a PIN or password, but you are not automatically required to provide it simply because they ask. The position only changes if a formal notice is lawfully issued under section 49 of the Regulation of Investigatory Powers Act 2000, which can require you to disclose a password or encryption key. If such a notice is served, failing to comply without a lawful excuse can itself be a criminal offence, so it is important to understand your position and take legal advice before responding. 

How our pre-charge solicitors can help

At Olliers, our pre-charge team uses the charging guidance and wider disclosure obligations as part of a proactive defence strategy. We do not simply wait to see what happens. We look at whether the available evidence genuinely supports charge, whether relevant communication evidence has been handled properly, and whether there is scope to make detailed representations at an early stage.  

Depending on the case, we may be able to: 

• assess how important the communication evidence is likely to be to the charging decision  
• identify missing context, incomplete message threads or other gaps in the evidence  
• raise concerns where relevant digital material has not been examined or preserved properly  
• make representations that there is no realistic prospect of conviction on the available material  
• argue that further inquiries need to be undertaken before any fair charging decision can be made  
• advise you on the best way to protect your position if the police wish to examine devices or digital accounts

Our focus is always on trying to achieve the best outcome as early as possible, including where appropriate avoiding charge altogether. That is why early legal advice matters.  

What you should do if police are looking at your messages or social media 

If communication evidence may be important in your case, there are sensible steps to take early. What is right will depend on the circumstances, but in broad terms you should seek legal advice promptly before making decisions about how digital material is dealt with. The way messages are understood, reviewed and presented can be critical.  

You should also avoid assuming that a single screenshot or isolated message tells the whole story. In many cases, the surrounding conversation or the wider digital record is what matters most. That is one reason why early, careful analysis can be so important.  

If you are under investigation and communication evidence is likely to be central to the case, our specialist team can advise you on the position and on the best next steps before charge.  

Frequently asked questions about communication evidence