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@DawnButlerBrent With respect, this is an unhelpful and confusing contribution to the discussion. “Previous communications with a rapist” are not being “relied upon for a conviction”. And this is nothing to do with “narratives”. The issue concerns disclosure in criminal proceedings.
@DawnButlerBrent The prosecution is under a duty to pursue all reasonable lines of enquiry in an investigation, and to disclose to the defence any material it uncovers which may be reasonably capable of undermining the prosecution case or assisting the defence.
@DawnButlerBrent In many criminal cases, there will be no need for reasonable lines of enquiry in an investigation to include interrogating a complainant’s mobile phone. But in some, the issues will be such that this will be a reasonable line of enquiry.
@DawnButlerBrent (Bear in mind that a reasonable line of enquiry includes lines that point *away* from the suspect’s guilt - this is the guiding principle of all criminal investigations)
@DawnButlerBrent If in the course of an investigation the prosecution does interrogate a complainant’s electronic communications, it must consider them for disclosure. “Given the known issues, is any of the content reasonably capable of assisting the defence or undermining the prosecution?”
@DawnButlerBrent In many cases, there will be nothing disclosable. Nothing to undermine the prosecution case. In these cases, the defence - and the public court - never see the contents.
@DawnButlerBrent In some cases, however, there will be material that assists the defence. The defence are therefore entitled to see that material (and that material only). But that’s not the end of the matter. It doesn’t mean that what had been disclosed is automatically admissible in court.
@DawnButlerBrent For evidence to be admissible in court, there is a higher bar than for disclosure. Evidence must be relevant to a particular issue, and there are statutory restrictions if the evidence is relied upon in an effort to show “bad character” or previous sexual behaviour.
@DawnButlerBrent The notion, floated a lot today, that the most intimate details of a complainant’s personal and sex life will be indiscriminately waved around in court by the defence is simply untrue. The law does not allow this. The legal tests are strict.
@DawnButlerBrent (For example, to deal with another common myth, evidence of a complainant’s sexual history can never be used to attack the character of a complainant. That is expressly forbidden by statute.)
@DawnButlerBrent Back to disclosure, the reason this principle is so critical to our process is that it helps to avoid miscarriages of justice. Liam Allen’s case is being commonly referred to today, and for good reason. But disclosure is vital in *all* criminal cases.
@DawnButlerBrent Moreover, it is something that the police and CPS have been doing badly for decades. Independent report after report has condemned endemic basic disclosure failings - which we in the system see every day - which risk serious miscarriages of justice. justiceinspectorates.gov.uk/cjji/wp-conten…
@DawnButlerBrent This is why the police and CPS are, belatedly, taking the problem seriously. Because if they don’t, innocent people end up in prison.
@DawnButlerBrent Now that’s not to say of course that this isn’t a difficult issue. I completely understand why complainants may not want the further intrusion of their private communications being combed through by strangers. I certainly wouldn’t. And there’s a balance to be struck.
@DawnButlerBrent In many cases it will not be reasonable to ask for mobile phones. If it is being done in such cases, this is a serious problem and needs addressing. By which I mean stopping.
@DawnButlerBrent But for cases where it is necessary to ensure a fair trial, it may be unavoidable. And it’s essential that, for complainants put in that position, that the information they are given is accurate and does not act as a further deterrent to participating in an already horrid process
@DawnButlerBrent So by all means let’s have a public discussion about striking the balance between privacy and the right to a fair trial, and how we can increase victims’ faith in the process and avoid their revictimisation during the criminal process. This is all vital. The system must improve.
@DawnButlerBrent But when we do, I’d suggest it’s vital that we trade in facts, and remain conscious that victims may take to heart what they read and that misinformed criticism can have the unintended consequence of exacerbating the very problem we are all trying to solve.
