Criminal law roundup

Disclosure

The disclosure of a witness’s digital communications continues to receive the attention of the courts. Such circumstances mostly arise in the context of alleged sexual offences. The complainant may be reluctant to allow access to material that may be irrelevant but highly personal. Even so, the defence will press for access on the basis that the material will undermine the prosecution case.

In R v Carl Bater-James and Sultan Mohammed [2020]EWCA Crim 790, the Court of Appeal set out four principles that should be applied in determining whether there is a need for such disclosure. First, is it necessary for investigators to seek details of such communications and then necessary to disclose such details to which the investigators have access? This will not be necessary in every case. Second, if necessary, how should the review of those communications be conducted? It may not be necessary to take the electronic device itself. Third, what reassurance can be provided to the complainant as to the scope of the review and the circumstances of any disclosure of any relevant material? The complainant must be kept informed and told of what is to be extracted and examined, and what is to be disclosed. Fourth, what is the consequence if the complainant refuses to permit access to a potentially relevant device, either by ‘download’ or permitting viewing? Similarly, what are the consequences if the complainant deletes relevant material? The court must assess the impact of this and decide whether the trial process can compensate. Each case will be fact-specific. The judgment is worth reading in full.

Dishonesty

A five-strong Court of Appeal in R v Barton and Booth [2020] EWCA Crim 575 has confirmed that the obiter comments as to the test for dishonesty – set out in the judgment of Lord Hughes in Ivey v Genting Casinos [2017] UKSC 67 – constitute the law to be applied when an issue arises as to alleged dishonesty. First, what was the defendant’s actual state of knowledge or belief as to the facts; and, second, was his conduct dishonest by the standards of ordinary decent people. The subjective question of whether a defendant appreciated that his behaviour was dishonest by those standards no longer applies.

Remands into custody

Many practitioners will have experience of a defendant being released ‘under investigation’ before being requisitioned to attend court many months, or in extreme cases, years later. R (Iqbal) v Crown Court at Canterbury [2020] EWHC 452 (Admin) concerned just such a case, where a district and then circuit judge remanded a defendant into custody who had been released to be investigated for almost two years before first appearance. Notwithstanding his attendance at a police station, when requested, on a regular basis during that period, the court was not obliged to remand on bail. The court’s decision was to be made independently and a defendant cannot expect to be released on bail. The court is not bound by any decision of the police during the investigation.

Low-value shop theft

When a defendant is charged with two or more shop thefts of a value of £200 or less ‘on the same occasion’ as per section 22A of the Magistrates’ Court Act 1980, this refers to the occasion on which the accused appears to answer the charges.

If the defendant does appear in such a way the values of the alleged thefts are to be aggregated for the purposes of determining whether the charges remain in the magistrates’ court, subject to election, or whether the usual allocation provisions apply, which could either close off or open up the possibility of allocation to the Crown court or committal for sentence (R v Harvey [2020] EWCA Crim 354).

Adrian Lower is a district judge (magistrates’ courts)