Mobile phone evidence – focus on forensics

A couple of years ago, we represented a businessman. He had an affair with a junior member of staff; she accepted this was a consensual affair, but after their final night together, she claimed to have been raped, having woken to find him having sex with her. Our client denied this and said she was awake and consented. The Jury believed him and he was found not guilty after less than an hour of Jury deliberations.

A problem arose during the preparation of the case. It became clear that the police had not done their job. At a very early stage we said we wanted the phone of the complainant and the phone of her friend (who was also a prosecution witness) to be examined. The police did not do it, despite repeated chasing it wasn’t that they refused, they simply failed to do it. As the trial got closer, we could not risk waiting and had the case listed for a hearing so a Judge could order disclosure. Unfortunately by the time the police acted, the complainant’s phone had ‘accidentally’ been destroyed after getting run over! Her friend had sold her phone.

In Court, the police officer accepted her failings.

We do not know what was on the phones. It may have helped the defence case. The witnesses agreed that they had been texting each other – what did they say? we will never know. Fortunately our client was acquitted, however had he been convicted, a miscarriage of justice could have occurred, possibly because of a police failure to obtain vital evidence.

Forensic evidence has dominated some of the news agenda this week, with outrage over the interrogation of complainant’s phones in sexual offence and other cases.

In reality of course, if a police officer is to investigate a criminal offence fairly, the interrogation of phones, computers and other devices may well be necessary, despite the potential for intrusion into a person’s privacy.

We see a great many cases where phones are seized following arrest, only to be returned a great many months later, causing great inconvenience.

It is our job as criminal defence lawyers to ensure that the police do their job, follow all proper lines of enquiry, and ensure that all evidence that ought to be disclosed to us is revealed.

If you look at the significant miscarriage of justice cases over the last 50 years, the most critical failing appears to be a lack of proper disclosure of evidence. In some cases, the evidence is neglected, in others actually destroyed or deliberately suppressed.

The second big story this week was a report from the Lords Science and Technology Committee examining the work of forensic science providers in the criminal justice system, here are some of the findings:

“The instability of the forensic science market is a serious risk to the criminal justice system.”

“A free society is dependent on the rule of law which in turn relies on equality of access to justice. The evidence we received points to failings in the use of forensic science in the criminal justice system and these can be attributed to an absence of high-level leadership, a lack of funding and an insufficient level of research and development. Throughout this inquiry, we heard about the decline in forensic science in England and Wales, especially since the abolition of the Forensic Science Service.”

“Cuts to legal aid have affected the ability of defendants to access forensic expertise. We recommend that the Legal Aid Agency liaise with the market-regulation arm within the expanded role of the Forensic Science Regulator to set new pricing schemes, properly funded by the Ministry of Justice, for forensic testing and expert advice for defendants.”

Regrettably, none of these findings causes us the least bit of surprise, and we are acutely aware of the deficiencies in the current system. As defence lawyers, we work proactively to ensure that all work is carried out swiftly and to the required standard. Only by being fully aware of the weaknesses in the system can we ensure that our clients’ cases are appropriately presented.