Communication Evidence

Communication Evidence under the Director of Public Prosecution’s Guidance on Charging 2020

The Director of Public Prosecution’s Guidance on Charging (31^stDecember 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 (31^st 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

Key Principles

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.

Guidelines

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.

Charging Decision

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.

Following charge

In custody cases, emphasis is placed on proactive approach to outstanding lines of enquiry. Delay may impact on Custody Time Limits.

Unused material

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.

Contact our pre-charge investigations lawyers

If you would like to explore how Olliers can assist you please contact Ruth Peters or Matthew Claughton for a confidential discussion.

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Case Studies

Case Study One
21-year-old male of good character faced allegation of date rape in which the complainant claimed to have been unconscious for ten hours. Olliers were able to prove social media activity throughout the night and downloading of an app together with text activity from the alleged victim the following day. Olliers also provided police with details of a flatmate who witnessed sexual activity. Police were also provided with a motive for the fabricated complaint. Following representations to the police, matter came to a swift conclusion without even going to the Crown Prosecution Service for a charging decision.

Case Study Two
Young man faced allegation of sexual assault in a nightclub. It was suggested that he had assaulted a complete stranger without any earlier interaction. Olliers were able to show that alleged victim had in fact connected with the suspect on WhatsApp at the time of the incident which would have been impossible on her version of events. Olliers were also able to show that complainant’s boyfriend had unexpectedly arrived in the nightclub which gave an explanation and motive for the false allegation. No charges were brought.

Case Study Three
Client faced an allegation of historic rape based upon one incident thirty years earlier. Olliers were able to produce to the police a poem sent to the defendant by the complainant ten years previously i.e. twenty years after the alleged incident in which she admitted to her infatuation with the suspect at the time of the incident. Representations were made including a defence explanation for the allegations being made. Crown Prosecution Service took the view that there was not a realistic prospect of conviction and no charges were brought.

Case Study Four
Client was arrested and interviewed under caution in connection with historic allegations of rape. He was subsequently released under investigation pending further police enquiries. On contacting Olliers, we immediately adopted a proactive approach and established contact with both the officer in the case and the duty solicitor who had represented the client at the police station. Following detailed consideration of the police station notes, and on taking thorough instructions from our client, we drafted representations against charge on his behalf. The aim of our representations was to persuade the Crown Prosecution Service that there was ‘not a realistic prospect of conviction’ as required by the Code for Crown Prosecutors. The police investigation was ongoing for some time and we periodically liaised with the investigating officer to provide the client with updates. Having considered our representations, the police decided to take no further action against our client and the matter came to a close.

Case Study Five
Our client was arrested and interviewed under caution in relation to historic allegations of rape, sexual assault and controlling or coercive behaviour. He was subsequently released under investigation pending further police enquiries. The client contacted Olliers shortly after his arrest. Following this, we obtained the case papers from the duty solicitor who had represented him during interview. We also established contact with the investigating officer and drew their attention to some initial points about the case which would require further investigation. As the investigation developed, we drafted comprehensive representations against charge based on our client’s detailed instructions and relevant material he had provided. On considering our representations, the police decided to take no further action against our client and the matter was concluded.

Case Study Six
Our clients were directors of a payment processing company. This was a multi-jurisdictional investigation involving restraint of assets on several continents. Extensive police liaison took place, a substantial amount of exculpatory material was provided to the police. Complex and ultimately successful applications to vary and discharge restraint orders were made. Representations against charge were submitted. The matter concluded following a successful application under the Criminal Justice and Police Act 2001 for return of items unlawfully seized by police and decision was made to take no further action against our clients.

Case Study Seven
Client E was arrested and interviewed under caution concerning allegations of rape and sexual assault. He was released under investigation as the police continued with their enquiries. Client E contacted Olliers only a few days following his arrest to request pre-charge representation. We swiftly proceeded to make contact with the investigating officer to establish a line of communication. We also quickly obtained the case papers from the duty solicitor whom represented Client E at the police station. For the following five months, we maintained contact with the investigating officer and regularly liaised with them regarding bail requirements and the progress of their investigation. After in-depth consideration of the police station notes and all of the information and instructions provided by the client, we disclosed some material to the investigating officer concerning the allegations. Following review by the police and consideration of their lines of enquiry, a decision to take no further action was reached thereby concluding the investigation.