Paul Oliver, solicitor at Stokoe Partnership Solicitors writes for Global Legal Chronicle, exploring the use of evidence in recent rape trials.

This article has been published in Global Legal Chronicle, April 27th 2016.

Rape trials at risk says criminal defence lawyer

It is without doubt that the explosion in the use of social media has had a huge impact in all areas of life. The criminal justice system will have to come to terms with this and adapt to take account of the wealth of material disseminated on social media and its impact on the trial process. This is especially true following the trial of four students from Britain’s Royal Agricultural University, who were acquitted of raping a woman last year, after the police failed to disclose texts sent by the alleged victim.

This case raises two fundamental issues regarding the issue of disclosure and the trial process which go much deeper.

Firstly, the police were aware of the texts and appear to have decided not to disclose them to the defence in full knowledge that they would have undermined the Crown’s case and assisted the defence. This is in clear breach of the Disclosure rules enshrined in the Criminal Procedure and Investigations Act 1996. Such a fundamental breach would apply to material in the form of texts, voicemails and other items found in social media as much as it would to traditional sources of potentially disclosable material.

Secondly, the Crown have a duty to assist in securing disclosure of relevant material in the hands of third parties. Many criminal defence practitioners will have experienced the almost herculean task of seeking disclosure of material from those responsible for social media sites, such as Facebook and Twitter.

Given the ever growing use of social media, it is essential that those defending should not be hampered in their struggle for justice if accessing such material is hindered by the “burying” of material by those acting for the Crown, nor by global social media enterprises refusing to engage with the criminal justice system in this jurisdiction.