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Advice on communication evidence

  1.  Communications between suspects, complainants or witnesses can be of critical significance whether as evidence in support of the prosecution case or as unused material which either undermines it or assists the defence case. This is particularly so where the complainant and suspect have been in a personal relationship, for example, in cases involving allegations of a sexual nature. This guidance is primarily directed to such cases. Its purpose is to ensure that the significance of communication evidence is understood and assessed at the appropriate time and that it is handled correctly. Serious consequences have occurred and will continue to do so if this is not done. Such evidence incudes communications by way of telephone or other electronic device or by social media and is not restricted to communications between the complainant and suspect but may include contact with third parties.
  2. Investigating officers are required to pursue all reasonable lines of inquiry in accordance with the Attorney General’s guidance in order to identify relevant material. What is reasonable in each case will depend upon the particular circumstances. This will often include the obtaining and analysis of communication evidence, whether it originates from devices belonging to the complainant or the suspect or, in some cases, to third parties. Prosecutors should be alert to the often critical importance of such evidence and, where such lines of inquiry have not been undertaken, should provide appropriate advice to the police to pursue them. This might be advice to obtain devices which have not hitherto been seized or to examine those which have in an appropriate way.
  3. The examination of communication devices belonging to the complainant is not a requirement as a matter of course in every case. There will be cases where there is no requirement for the police to take the media devices of a complainant or others at all. Examples of this could include sexual offences committed opportunistically against strangers, or historic allegations where there is considered to be no prospect that the complainant’s phone will retain any material relevant to the period in which the conduct is said to have occurred and/or the complainant through age or other circumstances did not have access to a phone at that time.
  4. Where downloads of telephones or other devices have been obtained, investigators and prosecutors should, in consultation, consider setting assessed parameters for examination of the data that are necessary, proportionate and reasonable in the given circumstances.   

This includes all forms of message communication (even if deleted) and photographs / videos if stored. The use of search terms for examination may or may not be an appropriate method. Other techniques may also be feasible. 

It is generally not sufficient only to consider communications between the complainant and suspect. Communications between either of them and others may well have an impact on the case, for example, where reference is made by either to the events which are the subject of the allegations.

  1. If the investigation reveals communication evidence which assists the prosecution case, then this should be provided to the prosecutor to consider when making a charging decision.
  2. If the investigation reveals communication evidence which might reasonably be considered capable of undermining the prosecution case or assisting the defence case, then it must be treated as unused material. As such:
    1. the telephone / device and any download deriving from it must be listed on the disclosure schedule;
    2. the material which might be capable of undermining the prosecution case or assisting the defence case must be identified in the disclosure schedule. This includes provision of the material to the prosecutor, which must be done before a charging decision is made.
  3. For the avoidance of any doubt, in all bail cases, a charging decision ought not be made until the processes set out above have been complied with. Prosecutors must be in a position properly to assess the impact of communication evidence before the charging decision is made.
  4. Disclosure is an ongoing process and the impact of communication evidence must be reconsidered as appropriate. Most particularly, after receipt of the defence case statement or any indication as to the nature of the defence, the disclosure officer should re-examine all communication material to ascertain if any of it meets the disclosure test and, if so, bring it immediately to the attention of the prosecutor.
  5. Should any communications material need to be disclosed then it must be redacted appropriately so as to preserve confidentiality and privacy in respect of any matters which are not relevant.

Issued: 31 October 2019

Reviewed: 4 September 2025