Case is dismissed following investigation and disclosure failures

Tuesday 18 December 2018

Elizabeth Garcia and Audrey Cherryl Mogan represented the defendant, instructed by Lauren Burton of Lloyds PR Solicitors.  

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Brighton Magistrates Court dismissed a case of harassment following successful arguments that the Police and Prosecution had failed in their duties to effectively pursue all lines of enquiry in their investigation, as well as fail to disclose crucially relevant material.

Their client was charged with one count of harassment against a former partner, committed whilst he was a serving prisoner at an open prison. The allegation was that he continued to contact the complainant by phone and text messages, despite being told that contact was no longer wanted. The Prosecution evidence consisted of selected screen-shots of messages from the complainant’s phone.

The Defendant denied the allegation and raised his defence at the earliest possible opportunity, that if the Police looked at the complainant’s phone, they would see the full context of their communication over a significant period and that it did not amount to harassment. Despite this being raised firstly in February 2018, the Police did not seek to investigate the complainant’s phone until September 2018. During that period there were 2 trial listings, which were adjourned in order for the Prosecution to complete their investigations.

On the third trial listing, the Prosecution applied to adjourn the case on the basis that the material had been retrieved, but not yet analysed. They confirmed the phone material was indicated to be ‘unhelpful’ to the Prosecution case, and had not been disclosed to the Defence. The adjournment was not granted and the Bench noted that this disclosure was raised 13 times by the Defence and had not been complied with. They noted “the delay and the time taken is quite unacceptable. The reason for the adjournment is arising through the fault of a party: the Prosecution.”

The Defence successfully argued that the entirety of the rest of the complainant’s evidence ought to be excluded pursuant to s.78 PACE due to the prejudice to the Defendant in receiving a fair trial with the knowledge that there is potentially exculpatory material within the possession of the Prosecution. The Bench stated that this case was a “systemic failure” and dismissed the case.


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