Two articles in Counsel Magazine cover the growing concerns about disclosure in criminal proceedings. They emphasise the pressures, mainly on defendants but also on the Crown Prosecution Service and the police, caused by increasing volumes of data, by the technical complexity of multiple data types and sources, and by the lack of resources available to manage them.
The first of these articles is called R v E and the great disclosure debate – Measured working guide in an imperfect world, and is by senior defence barrister Jerry Hayes. He was the prosecutor who brought to an end the 2018 trial of Liam Allen because of multiple disclosure failures. His focus is on the guidance given by the Court of Appeal in R v E  EWCA Crim 2426 which, in addition to the helpful practical guidance which it gives, is:
…a useful talisman against that new breed of young, aggressive, careerist judges who are obsessed with the minutiae of process, clock watching and just want ‘to get on with it’, who are slithering onto the circuit bench.
Hayes draws attention to the need to “examine both phone and social media data on the basis that it ‘goes to the heart of the ability to cross-examine’”. Quoting a judge, he says that telephone and social media data is “a running commentary of [our] day-to-day lives”. Our “imperfect world”, he says, provides “a lack of time, resources and a cultural problem with investigators falling into bad practice.”
The point about mobile phone evidence is expanded on in the same page by criminal barrister Mary Aspinall-Miles in an article headed The fundamentals of mobile phone evidence. She makes a point which applies equally to civil cases:
a fundamental point about mobile phone evidence is that if the police or the defence do not look at what is there, then no one will actually know what it contains.
You will have noticed the same point made often in my blog posts.
Mary Aspinall-Miles says:
Electronic evidence can provide more evidence as to the circumstances surrounding an allegation and, in consent cases, may even provide crucial information highlighting what was being said almost contemporaneously.
Consent in sex cases raises specific problems not least (but not only) the fact that there are usually no third party witnesses. The criminal law brings other examples – a recent attempted murder trial involved a text message saying “They didn’t do a very good job, did they? He’s still here”, which you and I might have thought an unwise thing to record.
You don’t have to think far to come up with civil disputes where a participant’s involvement, motives, and reactions (that “running commentary of their day-to-day lives”) may well be illuminating – as long as someone thinks to ask for it (and to do so in time for it to be preserved).
There is a growing recognition, covered by Mary Aspinall-Miles, that electronic evidence needs to be made available electronically to both parties subject to appropriate privacy and retention policies.
The problem, of course, is one of resources, particularly for defendants. Providing a searchable on-line resource takes money both to build it and to provide training in its use. But capture is an essential starting-point whatever comes next – there is no “next” if you don’t have the data, whether you are prosecuting or defending.
In addition, as Jerry Hayes suggests in his article, you need courts who will self-start on asking about such data. The “new breed of young, aggressive, careerist judges” which Jerry Hayes mentions presumably includes many whose own daily lives are captured in this way, and who could take judicial notice of it without waiting for overstretched investigators, prosecutors and defence lawyers to raise it.