Our thanks to Y for this piece in today’s Guardian:
A rape trial has collapsed after the Crown Prosecution Service offered no evidence when it emerged that images from the defendant’s phone of him in bed with his alleged victim had not been disclosed.
The failure of the case at Snaresbrook crown court, east London, is the latest example of crucial digital evidence contained on a mobile either not being found or not being handed over to defence solicitors.
Lawyers for Samson Makele, 28, who had been under investigation for a year and half, said that if they had not recovered the photographs themselves the trial could have resulted in a miscarriage of justice and the accused eventually being deported.
Scotland Yard is already conducting an urgent review of similar problems after another rape case was halted in Croydon in December under similar circumstances when phone messages between the man and woman cast doubt on the prosecution’s version of events.
Another sexual assault case was abandoned later in December after material recovered from the defendant’s phone was only belatedly handed over as the case was about to go to trial.
There has been growing concern over disclosure of material that police obtain during the course of an inquiry that might help the defendant’s case. The volume of evidence involved in sex cases has mushroomed at a time when both police and prosecutors complain about the lack of resources due to funding cuts in the criminal justice system.
At Snaresbrook on Monday, a CPS prosecutor told the court that it was abandoning the case against Makele, who is originally from Eritrea. He was accused of raping a 35-year-old woman whom he had met after the Notting Hill carnival in August 2016.
The pair were said to have taken a taxi back to Makele’s flat in Hackney where they had sex and the woman stayed the night. The next day she went to the police and alleged that Makele had raped her and prevented her from leaving his flat. She said she only managed to escape after he fell asleep.
Makele consistently denied the charge and said sex with the woman had been consensual. The CPS subsequently told Makele’s solicitor, Paris Theodorou, of the London law firm Hodge Jones & Allen, that apart from text messages showing contact between the two after the event there was nothing else of interest on the phone that needed to be disclosed.
When the phone was eventually returned to Makele, Theodorou commissioned an independent download of the phone’s contents and discovered more than a dozen photographs showing the pair apparently cuddling in bed together.
They undermined the prosecution’s version of events, suggesting that the relationship appeared to be consensual. Theodorou then served the CPS with the images that had been missed.
In court a barrister for the CPS said the prosecution was also being dropped because of another issue that had raised doubts about the credibility of the complainant.
Theodorou said it was unbelievable that his client had been subjected to “18 months of hell” with the criminal accusation hanging over him.
After the hearing Makele said the ordeal had left him unable to function properly. “I cannot sleep. I can’t go anywhere, even for a day,” he said.
Abigail Bright, a barrister from Doughty Street Chambers who represented Makele in court, said after the case: “It should be a minimum requirement that [police and prosecution] should look at the downloads from the phones around the period of an alleged offence.
Both prosecution and defence ideally ought to be allowed access to all downloaded evidence through a secure online account, she suggested.
Theodorou had to obtain prior permission from the Legal Aid Agency to spend £1,300 plus VAT commissioning an independent technical expert to download all the information on the mobile phone so that he could examine it. [J4MB: And if that permission had been denied, Makele would presumably have been convicted and imprisoned. But why should a man’s freedom depend on the existence of such evidence?]
At least four images showed Makele and the woman in bed together under the sheets, apparently naked.
The police later admitted that the images had not been found by the initial investigation. A spokesperson for the Metropolitan Police said: “It is the responsibility of the investigating officer to pursue all reasonable lines of enquiry in an investigation.
“This involves making complex decisions based on the evidence available and disclosures made by defendants and complainants during the investigation process.
“In this case it is apparent that the police investigation did not find the images, which were first disclosed by the defendant in early January 2018. After this the case was discontinued.”
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