Bater-James & Anor v R.

A witness’s digital communications should be sought only where there is a properly founded, case-specific reasonable line of inquiry. There is no routine right to inspect a complainant’s phone, including in sexual-offence cases, and speculative searches are impermissible. The digital form of material does not alter the disclosure test under the Criminal Procedure and Investigations Act 1996.

Any review must be incremental and proportionate. Investigators should consider other sources, limited inspection, focussed search terms and redaction before wider extraction or disclosure. A refusal to provide a device, or deletion of material, does not automatically make a trial unfair. The court must assess identifiable prejudice and whether cross-examination and judicial directions can secure fairness.

Two unrelated conviction challenges were heard together to determine recurring issues concerning prosecution witnesses’ digital records.

Bater-James appealed convictions for assault, sexual assault, assault by penetration and making a threat to kill. He challenged a ruling excluding an old alleged false complaint by the complainant, the recall of the complainant after late disclosure of communications, and the refusal to stay proceedings despite deleted and withheld material from her phones.

Mohammed renewed his application for leave to appeal a rape conviction. He argued that the prosecution should have reviewed or disclosed all 40,000 pages downloaded from the complainant’s phone, and that evidence of earlier sexual incidents should have been admitted under section 41 of the Youth Justice and Criminal Evidence Act 1999.

The common questions concerned when digital material may properly be sought, how it should be reviewed, and the consequences of a witness’s refusal or deletion.

1. The court dismissed Bater-James’s appeal and refused Mohammed’s renewed application for leave to appeal. Neither conviction was unsafe.

2. Investigators may seek a witness’s digital material only where a properly identifiable and case-specific reasonable line of inquiry exists. There is no automatic entitlement to inspect a complainant’s device in a sexual case. A request founded on conjecture is a fishing expedition and is impermissible. The disclosure criterion remains whether material might reasonably undermine the prosecution or assist the accused under section 3(1)(a) of the Criminal Procedure and Investigations Act 1996. The court approved the approach in R v H and C [2004] UKHL 3, R v McPartland and another [2019] EWCA Crim 1782 and R v E [2018] EWCA Crim 2426.

3. Where a review is justified, it must be incremental and proportionate. Investigators should first consider other available sources and whether focussed inspection, screenshots or other copies will suffice. More extensive extraction should cause minimum inconvenience. For voluminous material, focussed search terms, data parameters, defence engagement and suitable redaction are appropriate. A page-by-page review of 40,000 pages was neither necessary nor realistic on the facts of Mohammed’s case.

4. Witnesses should be clearly informed about the intended scope of copying and examination, the likely period without a device, and the strict and redacted basis on which material may be disclosed. If a witness refuses access or deletes material, the issue is not automatic bad faith or automatic unfairness. The court must identify the missing evidence, assess actual prejudice in the case as a whole, and decide whether cross-examination and judicial directions adequately protect the accused. A stay may be required only if a fair trial cannot be secured.

5. The trial judge was entitled to exclude the 2008 incident as non-defendant bad-character evidence under section 100 of the Criminal Justice Act 2003. It was old, recorded only briefly, and lacked sufficient probative value. The recall evidence properly corrected a potentially misleading impression about post-charge contact. Although the complainant’s late production and deletion of communications were regrettable, no identified material was shown to undermine her trial account. The process, including cross-examination and directions, remained fair.

6. Mohammed’s proposed inquiry into the complainant’s earlier intoxicated sexual encounters rested on speculation inconsistent with his own account that she was sober, awake and consenting. The alleged similarities therefore did not meet section 41(3)(c) of the Youth Justice and Criminal Evidence Act 1999. The prosecution question about whether protection had been discussed before alleged consensual intercourse did not itself introduce complainant sexual behaviour requiring rebuttal under section 41(5).

• Court of Appeal (Criminal Division) — In [2020] EWCA Crim 790, dismissed Bater-James’s appeal against conviction and refused Mohammed’s renewed application for leave to appeal against conviction.
• Crown Court at Luton — Bater-James was convicted on 21 June 2019 of assault occasioning actual bodily harm, sexual assault, assault by penetration and making a threat to kill. He was sentenced on 14 November 2019.
• Crown Court at Ipswich — Mohammed was convicted of rape on 12 April 2019 and sentenced to eight years’ imprisonment on 17 April 2019.