A Judge recently found that the costs incurred by those representing the Defendant in a historic sexual allegation had been occasioned as a result of an unnecessary or improper act or omission by the prosecution.
The Defendant, together with another, faced an allegation of a sexual nature arising from when he was a student some 10 years before the allegation was made.
Repeated requests were made by Sallie Bennett-Jenkins KC and her instructing solicitors for an examination of the electronic communications of the complainant and her group of friends on the night of the allegation, as well as other conversations regarding her partaking in threesomes and her attempts to make contact with the Defendants.
Despite detailed and specific requests repeated in the defence statement and correspondence, no action was taken by the prosecution to undertake the searches requested.
A s8 hearing directed that specific search terms should be applied to the electronic material, but an officer unilaterally decided to apply only three of the lengthy list of search terms identified by the defence.
On the first day of trial, time was allowed for King’s Counsel and the prosecution to conduct the examination of the electronic material, which revealed evidence that caused the prosecution to offer no evidence, recognising that there was no realistic prospect of conviction.
The judge found that the costs of the defence were occasioned by the prosecution’s failure to respond to the defence disclosure requests and to comply with the terms of the s8 order. This was one of the rare cases where it could be established to the relevant standard that there had been an improper act or omission by the prosecution; accordingly, an order for costs was made.
Sallie Bennett-Jenkins KC was instructed by Ellen Peart of BCL Solicitors.
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