Communication Evidence under the Director of Public Prosecution’s Guidance on Charging 2020
The Director of Public Prosecution’s Guidance on Charging (31st December 2020) provides a clear structure in which criminal allegations are investigated and prosecuted. Defence teams must have a detailed working knowledge of the Guidance as part of a proactive pre charge engagement strategy.
This page focuses on Communication Evidence.
The significance of the Guidance for defence teams
The Olliers Investigations Team place huge emphasis in monitoring the police and their compliance with the Guidance as part of our pro-active approach to pre-charge work.
We look to engage with police at an early stage of an investigation. We always consider whether we can make representations against charge, by arguing that there is not a ‘realistic prospect of conviction’ or that it is not in the public interest to prosecute. The Guidance was published on the same day (31st December 2020) as the arrangements for ‘pre charge engagement’ (Annex B Attorney General’s Guidelines on Disclosure 2020).
Director of Public Prosecutions Max Hill QC;
‘There has been a major shift in working practices and priorities throughout the criminal justice system in recent years and it is vital there is clear guidance to help police and prosecutors navigate these effectively.
‘The Attorney General’s guidelines focus on getting disclosure right and getting it done early so its impact on the evidence is known. These are significant changes and we must continue to work collaboratively to embed them.’
At Olliers we regard the Guidelines as a powerful resource during the pre-charge engagement process.
The relevance of Communication Evidence during the investigation stage of a criminal case
At Olliers our pre charge team appreciate the potentially huge significance of communication evidence during the investigation stage of a case. One of the most important features of a proactive approach can revolve around communication evidence. It is of vital importance to ensure that the guidance below is adhered to and that audio visual material that may assist the defence is preserved
Communication evidence includes communications between: a complainant(s), suspect(s), individuals under investigation as well as third parties.
Typically communications evidence will be in digital form (electronic device, mobile or otherwise, social media, other platform/operating system capable of capturing digital communication).
it may be call data; text, group messages, email, etc. the definition also includes digitally stored, notes, contacts, audio, visual material, and photos etc.
Investigators (and defence practitioners) must understand the significance of this evidence at the point of recovery/potential recovery.
The guidance is not definitive.
An investigator should pursue all reasonable lines of inquiry, “whether these point towards or away from the suspect” (defence practitioners should never lose sight of this point).
Investigators and prosecutors, should be aware of the importance of communication ensuring that all relevant devices are seized/ examined, at the earliest opportunity. They must also consider whether social media evidence should be preserved.
Officers should be aware of opportunities presented by the examination of devices, the differing levels of examination available; as well as the limitations and boundaries of any examination.
The extent of recovery and examination of material is an operational matter for the police (a defence practitioner should be aware of what material they feel may be relevant to their client’s defence).
Decision making by officers will be depend upon the facts of the case, the offence, issues raised and any potential defence, together with asking suspects and complainants whether there might be relevant communication material (again these are important points for defence practitioners to consider, particularly after a ‘no comment’ interview or one in which a limited prepared statement has been provided.)
The examination should be proportionate to the issues in the case, addressing ‘reasonable lines of inquiry’. The Guidance again refers to the potential importance of third party communication.
It is for the police investigator to consider additional steps when reviewing extracted material, including: search methodologies/parameters, final sifts, service and presentation in evidence, and disclosure of unused material.
In referring a case for a charging, the investigator must explain the purpose of an examination and its significance, why the examination was reasonable, whether consent was obtained, the examination strategy, the extent of any download/copying, and an explanation if devices were returned without examination. There should be a full assessment of the impact of communication evidence.
In custody cases, emphasis is placed on proactive approach to outstanding lines of enquiry. Delay may impact on Custody Time Limits.
If examination reveals material which is unlikely to form part of the prosecution case, then its existence must be revealed to the prosecutor. This may include information about the existence of devices and their examination. May also include specific material capable of undermining the prosecution or assisting the defence.
The Data Protection Act 2018 must be complied with.
The Guidance recognises ‘the overarching principles’ set out in Sir Brian Leveson’s review of ‘Efficiency in Criminal Proceedings’, the most important of which is perhaps the concept of ‘getting it right first time’
Police officers and prosecutors must comply with this Guidance to ensure that charging decisions are fair and consistent, and comply with the Police and Criminal Evidence Act, the PACE Codes of Practice, and the Code for Crown Prosecutors (“the Code”). As the police get to grips with the Guidance it is inevitable that mistakes will be made. Failure to follow the Guidance may risk cases failing or decisions being subject to legal challenge.
The guidance is issued by the DPP for police use, but the provisions apply equally to other investigators where cases are prosecuted by the CPS
At Olliers we recognise the importance of defence teams being at least as familiar with the obligations upon the police as are their police counterparts.