Mobiles in the dock

"Why are the police withholding evidence?" The young man's cry of bewilderment is understandable. The PhD student came to Australia from a country where citizens have good reason to be nervous about facing its justice system. But he expected more from his chosen place of study, a liberal democracy boasting adherence to the rule of law.

That's the claim. The reality is different, at least when it comes to sexual assault. He's been accused of rape by an ex-girlfriend who was angry when he refused to get back together with her after their initial breakup. He has phone recordings of her telling him she'll drop the charges if he falls into line, plus her social media messages pleading for sex long after the alleged assault.

But the police aren't interested. They refused to properly examine the accuser's mobile phone, claim they've been unable to view her chat messages apart from a few carefully selected messages, and refused to examine copies of the full conversations from the student's phone.

"My chat messages were enough to prove perjury, yet the police still decided to go ahead and charge me. It seems like everything I have worked for in my life is on the way to destruction," wrote the despairing student.

The role of phone evidence in proving guilt or innocence in sexual assault cases is a hot button issue. Police and prosecutors are now routinely withholding or deleting phone evidence that could be used to exonerate accused men. The feminist demand for privacy for victims trumps the search for truth regarding the alleged crime. And the public push for more rape convictions means impediments like contradictory evidence are conveniently overlooked or swept aside.

In Australia, this issue usually emerges only in the stories of individual men seeking justice in our courts but in the UK, the controversy is playing out in a very public arena.

Five years ago I wrote about a huge scandal when a series of high-profile British rape cases fell apart because it was discovered the police and prosecutors had withheld social media evidence that could have disproved complainants' claims. The best known was Liam Allan, where the disclosure of 40,000 text messages revealed his accuser had pestered him for sex. Allan avoided a likely ten-year prison sentence only because the prosecution barrister, after the trial had actually commenced, insisted the police hand over the phone evidence to the defence lawyers.

This was only one of many cases that collapsed due to very late disclosure of mobile phone evidence which challenged the complainant's claims. With one man, Danny Kay, the evidence which exonerated him came to light only after he had served four years of his sentence.

One amusing sideline to the whole kerfuffle was the Metropolitan Police announcing that they were ditching their previous practice of "believing all victims."

As Dr Rick Bradford explains in his excellent blog The Empathy Gap, the press interest in these disclosure failures pushed the Crown Prosecution Service into conducting an investigation but the resulting report was "a disgraceful exercise in obfuscation".

In stepped the Justice Select Committee which is required to oversee such matters. Their report included all manner of revealing statements, including the fact that prosecutors underestimate the number of cases which fell apart due to disclosure errors "by around 90%."

The Select Committee had very clear advice for the prosecution services, namely: