Charnock v R.

Where potentially relevant digital material is unavailable because a complainant refuses access, the question is whether the trial process can nevertheless secure fairness. The court must distinguish speculation about unknown material from a significant and demonstrable prospect that it would be decisive or strongly support a specific issue. It must assess the evidence actually lost, its importance in the case as a whole, and any resulting prejudice.

Cross-examination, available disclosure and appropriate judicial directions may adequately compensate for the absence of the device. An investigative failure to obtain material does not itself make a conviction unsafe. The appellate court must not speculate about content which might have been found.

The applicant was convicted by a majority at Chester Crown Court of rape. His case was that the complainant had consented throughout to rough sexual activity and had fabricated the allegation as revenge. Evidence disclosed at trial included messages between the complainant and her mother which the defence relied on as supporting that case.

Nearly two years later, the applicant sought an extension of time and permission to appeal. He alleged that the prosecution had failed to obtain the complainant’s mobile telephone and social-media material after she refused voluntary access. He also criticised trial counsel’s failure to seek a witness summons or a stay, and the trial judge’s directions. The central issue was whether the absence of the material rendered the trial unfair and the conviction unsafe.

Application dismissed. The court refused both an extension of time and permission to appeal because the conviction was not unsafe.

1. The messages between the complainant and her mother gave both the prosecution and defence a proper basis to seek a witness summons for the telephone. Such a request would not have been a speculative inquiry. Investigators could also have sought relevant messages by other means without removing the device. Nonetheless, those shortcomings did not determine whether the trial had been fair.

2. Applying R v Bater-James & anor [2020] EWCA Crim 790 and R v R.D [2013] EWCA Crim 1592, the court assessed the adequacy of the trial process. It distinguished speculation about what missing material might show from a significant and demonstrable prospect of decisive or strongly supportive evidence on a specific issue. Cross-examination and judicial directions could compensate for unavailable material if they enabled a fair determination.

3. The defence had substantial disclosed material supporting its allegation of a set-up. Counsel deployed it fully in cross-examination. The jury were reminded of that case, of the messages and of the complainant’s refusal to release her telephone. They could assess her explanation and credibility, but neither counsel nor the judge could properly invite speculation about unknown messages.

4. The judge should expressly have identified the possible prejudice caused by the complainant’s refusal. That omission did not undermine safety. The evidence of injuries and the recent complaint evidence supported the complainant’s account, while other available devices revealed no comparable messages. The trial process adequately compensated for the unavailable telephone.

• Court of Appeal (Criminal Division)—the application for an extension of time and permission to appeal against conviction was dismissed: [2021] EWCA Crim 100.
• Chester Crown Court—the applicant was convicted by a majority of rape before HHJ R Dutton and received an extended sentence.