E, R. v

A failure to investigate or retain potentially relevant digital material does not, by itself, make a criminal trial unfair. Whether communications evidence is a reasonable line of enquiry is fact-specific; there is no automatic duty to examine a complainant’s phone in every sexual-offence case.

A stay for lost evidence is a last resort. The court must assess the issues at trial, the realistic likelihood that the missing material would assist the defence, the inferences available from retained material, and whether cross-examination, other evidence and an appropriate jury direction can cure any disadvantage. A stay is not a disciplinary sanction for investigative failures.

E was charged with assault by penetration and sexual assault against his step-sisters. The Crown Court stayed the indictment as an abuse of process because the police had not seized one complainant’s mobile phone after learning of a text message which, it was accepted, made further enquiry a reasonable line of enquiry. Much of the historic content had then been lost.

The prosecution sought leave to appeal the terminating ruling. It submitted that the concession should be withdrawn or, alternatively, that the loss of material did not prevent a fair trial. The central issue was whether the missing phone material made a fair trial impossible.

1. Appeal allowed. The judge’s stay was a ruling which the Court of Appeal could reverse under section 67 of the Criminal Justice Act 2003 because it was wrong in principle and was not a reasonable exercise of discretion.

2. The court would not permit the prosecution to withdraw its concession that, from 12 July 2017, seeking material from EC’s phone was a reasonable line of enquiry. Parties will only exceptionally be allowed to abandon an acquiesced position on appeal: R v R [2015] EWCA Crim 1941. The court nevertheless rejected any suggestion that a complainant’s phone must be examined routinely in every sexual-offence investigation. The enquiry is fact-specific.

3. Applying R (Ebrahim) v Feltham Magistrates Court [2001] EWHC Admin 130, fairness is assessed generally and in all the circumstances. The relevant questions include the issues at trial, the likelihood that the unavailable material would have assisted the defence, what may properly be inferred from retained material, and whether the trial process can address any resulting disadvantage. A stay is not a disciplinary response to investigative shortcomings: R v Loosely; Attorney Generals Reference (No 3 of 2000) [2001] UKHL 53.

4. The judge gave undue weight to speculation that the phone might contain material undermining the complainants. The known text did not concern the allegation, EC had denied discussing it with others, and messages retained from R’s phone did not support a collusive false complaint. The defence could cross-examine on the absence of material, deploy the information it possessed, and seek an appropriate jury direction on any disadvantage.

5. A stay in this category is a last resort, reserved for a case in which the defendant cannot receive a fair trial. That threshold was not met. Leave to appeal was granted, the stay was reversed, and the indictment was ordered to resume before a different judge.

• Court of Appeal (Criminal Division): Allowed the prosecution appeal and reversed the stay: [2018] EWCA Crim 2426.
• Crown Court at Bradford: Judge Burn stayed the indictment as an abuse of process on the basis that a fair trial was not possible.