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15NBS Chambers

Defendant acquitted after Judge rules that late disclosure is Abuse of Process

By February 8, 2018No Comments

A defendant, G, was acquitted of 3 charges of making indecent images of children after the Judge ruled that he could not get a fair trial due to the late service of prosecution evidence.

G, represented by Jeremy Lynn, instructed by Tony Meisels of Lewis Nedas, had been arrested as long ago 2014, when the indecent material was found on a computer and hard drive at his home. He had no real explanation for this discovery save that he must have been “hacked” by some malicious outsider.

An expert instructed by the Crown failed to discover any evidence of hacking. However his 28 page report was not served until the day of trial in March 2016, and after refusing to declare the report inadmissible, the trial was stood-out to December 2016.

On examination of the internet history of his computer, the Defendant discovered an occasion when the history appeared to show that the computer was accessing a pornographic site whilst he was at work in a local hospital. A statement was taken from a colleague confirming that he was indeed at work at the relevant time, and following that an addendum defence statement was served stating that there was evidence that some unseen hand was accessing pornographic websites on G’s computer when he was not at home.

The Prosecution took his alibi seriously. They interviewed, and took a statement from, the alibi witness; they measured the journey time from G’s home to the hospital; and finally they tried to destroy his alibi by announcing that the times on the internet history (which they had produced) were GMT and not BST – in other words his alibi was an hour out.

Did you know that when an internet history, or other schedule of activity, is requested from a computer, the examiner has the option of setting GMT or UTC? In this case the examiner only announced the correct time after the alibi notice had been served.

The trial proceeded in December 2016, but when the o-i-c was giving evidence she produced a bundle of schedules containing prejudicial material that the Defence had never seen. The Judge stopped the trial and re-fixed it for September – when as it happened there was no court time and we were stood-out for the third time.

And so the trial started again this week, with new Prosecution Counsel. On the first day of the trial he indicated to the Judge that he was still supervising the preparation of a jury bundle and so the case was adjourned overnight. The next day he served 3 further statements. One of these referred to information received from the NCA that over a period of 7 years G had been accessing a file sharing website and had downloaded child pornography. The Prosecutor declined to give any further information and following an ex parte PII application, announced that there was nothing further to serve.

The second statement corrected the time on which a Cat. A video had been downloaded.
The Prosecution would not disclose the material that they had allowing this correction.

The final statement rendered the Defendant’s alibi nugatory.
A statement had been taken from a police expert saying that the internet activity that the Defendant pointed to as evidence of his computer being used when he was elsewhere, was in fact an automated script – that is, some command, possibly related to an advertisement, that is periodically run by an open website, and which does not involve any human hand at all.

The Judge then heard an abuse of process argument.

It was argued that the Crown were seeking to put in evidence material that the Defence had no means of verifying, let alone testing. Some of this material was hearsay and was not the subject of any application and so none of the statutory safeguards had been applied.

If the material on which the Defendant relied turned out to be automated scripts, who was to say that other evidence that the Crown relied on to show that the Defendant was accessing websites (such as his bank) whilst also looking at notorious porn sites was not also “scripts”.

Mid-trial the Defence could not examine this material. We do not have access to the computer and HDD from whence the material was extracted and we had neither the time nor resources to seek further expert opinion.

The Prosecution having failed to break down G’s alibi by “normal” means were now seeking to change the basis of their case so as to render the alibi irrelevant. Given that the alibi had been raised in April 2016 it was objectionable to introduce this new approach mid-trial nearly two years later.

In short the Judge agreed. He said that it was clear that the Defence could not meet this evidence mid-trial. The remedy might have been to adjourn the case to give the Defence time to examine it, but given the history of the case it would be wrong to adjourn it further – it had been going on for over 4 years and was the oldest case on the Court’s books.
In any event no sensible explanation had been given for why the material had only just come to light and it would be unconscionable to admit it now. To ask the parties to proceed without it, on what would then be a false basis was equally improper.

The Judge then directed the jury to acquit the Defendant and reserved the question of wasted costs for another day.

The irony of the situation is that, unlike recent well-publicised cases of late disclosure favourable to the Defendant destroying a case, in this matter the late service was of material that had the potential to crucify the Defendant. Had the case gone to a jury on any earlier occasion without this material, the result might not have been such a happy one for the Defendant.