Rape conviction overturned after deleted Facebook messages found as fears over evidence disclosure mount
Court of Appeal says Danny Kay might not have been convicted if jurors saw the full exchange
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A man’s rape conviction has been overturned after new Facebook messages emerged in the latest case to spark alarm about the failure to disclose key evidence.
Danny Kay, now 26, had been in prison for four years after a jury at Derby Crown Court found he had raped a 20-year-old woman in 2012.
But he challenged his four-and-a-half year term after newly discovered Facebook messages from the complainant supported his claims the sex was consensual.
The woman said there had been little contact after sex but the full exchange showed otherwise, and three judges at the Court of Appeal quashed his conviction.
They said the messages contradicted the prosecution’s case and supported Mr Kay’s claim their relations were consensual, adding: “The applicant was aware prior to and at the time of trial that the Facebook messages exhibited were incomplete and that further messages existed.”
Lord Justice Simon, Mr Justice Goss and Judge Walden-Smith said defence lawyers later found the archive of 29 Facebook messages that had been “selectively” deleted by the complainant.
“In consequence, a number of significant and misleading impressions were given in the edited trial version,” the judges said, concluding that Mr Kay might not have been convicted had all messages been presented to the court.
Police seized Mr Kay’s phone and laptop and he had called on them to access the messages – which had been deleted on the complainant’s account only – via his Facebook page.
Gaps resulted in the jury being given a misleading impression of a message reading “sorry”, which was construed as being about the alleged rape.
“It was in fact a response to her asking him why he was ignoring her,” the judgement said.
“The full version of the exchange not only undermined her account but also supported the applicant’s version.”
The edited record supported the woman’s claims that the only contact after the alleged rape was over the “morning after” pill, but the full stream showed the pair had chatted.
Lawyers say there could be a slew of further appeals from prosecuted rapists and sexual offenders seeking grounds to argue their convictions were made unsafe by disclosure failures.
The ruling was published on Thursday, as a Conservative MP’s chief of staff was acquitted of rape in another case seeing information disclosed late.
Samuel Armstrong, 24, insisted he had consensual sex with a parliamentary worker in his MP’s office after a night drinking – a claim supported by a jury at a two-week trial.
“My whole life has been turned upside down. For a year I have not slept or eaten, and I was innocent,” he said outside Southwark Crown Court.
“Were it not for the fact that crucial evidence was disclosed to my defence team just eight working days before trial, there could well have been yet another miscarriage of justice in this case.”
Mr Armstrong, a senior aide to South Thanet MP Craig Mackinlay, did not elaborate on the material referred to but the court heard the complainant initially refused to give police access to her mobile phone and medical records.
In messages recovered from her phone, she said she contacted a journalist hours after the alleged attack to secure a “sympathetic” write-up, while her medical notes revealed details of a history of mental health issues, including depression and anxiety.
A spokesperson for the Crown Prosecution Service (CPS) said the disclosure of evidence “was undertaken properly and in line with our legal obligations” in Mr Armstrong’s case.
“We disclosed additional material to the defence on 30 November – only a day after the police officer in charge and the CPS had first examined it,” a statement added.
“The trial went ahead on 11 December and it was not suggested by the defence that there was no case for Mr Armstrong to answer at the close of the prosecution case.
“The case was left for the jury to decide and we respect their decision.”
The Metropolitan Police pointed out that there had been no adverse comment by the judge over its conduct, adding: “We are content with the investigation and our disclosure work, which was conducted in liaison with the CPS.”
Britain’s largest police force is currently reviewing around 30 live sexual offence and child abuse investigations “as a precaution” after two rape cases collapsed within a week.
Judges threw out unrelated prosecutions against Liam Allan and Isaac Itiary, with both men acquitted after the discovery of evidence that should have stopped them ending up in court.
A detective involved in both cases has been removed from active investigations as the probe continues, amid a joint inquiry with the CPS into Mr Allan’s case and separate review of disclosure by the Attorney General.
Police had downloaded the contents of complainants’ phones but failed to pass on the information they contained to the prosecution or defence, claiming thousands of messages were irrelevant.
Mr Itiary had been charged with the statutory rape of a 14-year-old girl but messages showed she had claimed she was 19, while Mr Allan’s alleged victim had told friends she wanted and enjoyed sex she later reported as rape.
Both men are expected to launch legal action seeking compensation, with their cases sparking debate in the Houses of Parliament amid warnings over the potential miscarriage of justice.
Some lawyers are calling for the responsibility for identifying evidence to be taken away from police officers and passed to the CPS amid claims investigators may be treating material selectively to “secure a win”.
But the CPS itself was criticised for saying its lawyers work to “identify the right evidence to secure a realistic prospect of conviction at court” in a statement on Christmas staffing.
“After a week of disclosure failures this is your take?” replied barrister Matt Stanbury. “How about scrutinising all the evidence?”
Some have pointed out that the resources needed to comb through entire phone downloads – including 40,000 messages in Mr Allan’s case – and other digital data are greater than needed for evidence in the past.
A report issued in July by HM CPS Inspectorate and HM Inspectorate of Constabulary said even unused items of evidence must be reviewed “to see whether it is capable of undermining the prosecution case or assisting the defence case” and passed on.
Warning of widespread failures by both police and prosecutors, the authority said officers failing to comply with requirements were “often ignorant” of their disclosure responsibilities.
“Non-compliance with the disclosure process is not new and has been common knowledge amongst those engaged within the criminal justice system for many years,” the damning report concluded.
Police officers and prosecutors interviewed by inspectors said they believed limited resources and a lack of time were the main causes, even though “long-standing” problems predate recent budget reductions.
Requests from the defence caused the material that destroyed the cases against Mr Allan and Mr Azariah to be released and other trials are believed to be on hold after late disclosures.
Campaigners emphasised that false rape allegations are rare in comparison to the publicity they receive, with the crime believed to be severely underreported.