McPartland & Grant [2019] EWCA Crim 1782; [2020] 1 Cr App R (S) 51

McPartland was convicted of rape, assault by penetration and sentenced to 14 years imprisonment. Grant was convicted of rape and sentenced to 11 years imprisonment; the jury were unable to agree on a further count of rape alleged against him.

The complainant, X, met the appellants on a night out and went with them to another pub and then Grant’s home. Later that day, she reported to the police that they both had raped her at the house. The prosecution case at trial was that Grant vaginally raped her twice and that McPartland penetrated her with his fingers and orally raped her. The issue for the jury was consent save for the digital penetration, which was denied.

It was submitted on behalf of both appellants that the judge should have adjourned the trial to allow analysis of X’s phone to see whether, and when, she had deleted messages about the events. It was alleged that she had deleted messages after the police had requested her phone for analysis. Her social media accounts were reviewed, and nothing of note found. The defence had been kept informed, and the prosecution were ready to proceed. The defence were concerned that it was not possible to see messages that had been deleted and wanted to explore when and why they had been deleted.
The application to adjourn was refused. X was cross-examined at length about when and why she deleted the messages.

Held: the submission that a further exploration of the phone might have revealed that she had deleted relevant messages after being asked to produce her phone went nowhere in the absence of any suggestion that the messages contained something which may have been of assistance to the defence. The mere fact of deleting does not support that suggestion. There could be no adverse inference drawn from the fact that X did not initially want to hand her phone over. She was perfectly entitled to refuse to do so.

“It was suggested on behalf of the defence … that it is now entirely usual practice in cases involving allegations of sexual assault, that the mobile phone of a complainant should be examined. This is not, and should not, be thought to be correct.” What is a reasonable line of enquiry depends on the facts of each case.

The judge was right to refuse to adjourn the case.

McPartland changed his defence case statement. Initially, he said that he had seen what looked like Grant having sex with X in the toilet. The statement was amended after the trial had started to delete the words that it looked like they were having sex. The judge permitted prosecution counsel to cross-examine McPartland on the defence case statement, and it was submitted he was wrong to allow this. He also refused an application to discharge the jury.

The two issues were first, was the change important? If no, the jury should ignore it. If yes, the second issue was might the reason he had given for changing his account be truthful? If yes, the jury should ignore it. If no, it went to his credibility generally. The judge erred in his direction to the jury, but on any view, he had undermined his credibility and so the error did not undermine the safety of the conviction.

The appeals against conviction were dismissed as was the appeal against sentence on behalf of Grant. In respect of McPartland, it was agreed that consecutive sentences were not justified. His sentence was quashed and replaced with concurrent sentences making a total of 11 years.