Digital Evidence and Sexual Allegations

The last 10 – 15 years have seen the role of smart phones, social media and messaging platforms take centre stage in all of our lives. This has seen a huge increase in the number of cases before the courts in which digital evidence can be pivotal for both the prosecution and defence.

Historically the majority of sexual allegations have, by their nature, been decided largely on the accounts given by the complainant and defendant in evidence. In this sort of case independent witnesses are rare given the private nature of sexual relationships, however, the increased use of digital methods of communication can now provide essential context and background to the relationship between the parties in the build up to and the aftermath of an allegation.

What data can be obtained from electronic devices?

Important data can be obtained from telephone/computer examinations in the following forms:

• Text messages
• Emails
• Photographs/ video
• Facebook
• Messenger
• Whatsapp
• Snapchat
• Internet search history
• Location data
• Dating applications

Analysis of complainant’s phone

The examination of mobile phones belonging to both the complainant and defendant has become more common place, however, it is not done as a matter of course. A complainant’s phone will only be examined should the police/prosecution consider it to be a reasonable line of enquiry.

This has resulted in debate over respecting the privacy of the complainant and not adding to their distress on the one hand and ensuring a defendant receives a fair trial on the other. This can be a difficult balancing act.

The interests of justice should remain paramount. The analysis of digital communications between the parties often provide support for the defence case and in some cases can demonstrate the offence could not have taken place as alleged.

Protection of complainants

There are safeguards built into the Criminal Justice System to protect a complainant from speculative intrusion into their privacy and from inappropriate cross examination.

Section 41 of the Youth Justice and Criminal Evidence Act 1999 restricts the questions that can be asked of a complainant in cross examination. It prevents questions being asked which relate to a complainant’s sexual history without the leave of the court.

Whilst everyone would accept that these cases require sensitive handling it is important that the defendant is provided with the information they need to properly present their case and receive a fair trial.

The case of Liam Allen highlighted the issue of digital evidence and disclosure of material which may undermine the prosecution or assist the defence. This case led to the review of many similar cases with the focus being on how disclosure is dealt with.  In Mr Allen’s case the download of the complainant’s phone was not reviewed properly. The material, which ultimately led to the case against him being dropped, was not disclosed to the defence until the trial was already underway. When the material was provided it was accepted by the prosecution that there was no longer any reasonable prospect of conviction and the prosecution offered no evidence.

Investigations in relation to sexual allegations

Being accused of a sexual offence has serious and far reaching effects on individuals and their families. Defendants face many months if not years of huge pressure and stress before their case reaches a trial date. These delays are often exacerbated by the increase in work to be done at the investigation stage caused by the challenges that digital data presents.

It is clear that the unused material and digital evidence in these cases can be critical in supporting a defendant’s account. Digital evidence, both that relied on by the Crown to prove its case and the unused material, which may support the defence case, must be thoroughly and carefully scrutinized by the defence so that the mistakes made in Mr Allen’s case do not happen again.