Jersey Unreported Judgments

Drugs - possession of cannabis - production of cannabis - Class B.

[2023]JRC225

Royal Court

(Samedi)

20 November 2023

Crown Advocate C. L. G. Carvalho for the Attorney General.

Advocate N. B. R. Mière for the Defendant.

judgment

the bailiff:

1.        On 10 February 2023, Andrew Louis ("the Defendant") was sentenced, together with his co-accused, Ian Manson, for offences relating to the production of cannabis.

2.        The sentence that he received was one of eighteen months imprisonment and the Court, on that occasion, ordered the forfeiture and destruction of the drugs, paraphernalia and of the Defendant's mobile phone.

3.        During the course of the hearing, the Defendant's counsel requested that the personal photographs be first extracted from the Defendant's mobile phone before its destruction.  This was met with an objection by the Crown on behalf of the States of Jersey Police's Digital Forensic Unit ("DFU"). 

4.        Subsequent written argument was exchanged on the direction of the Court and this is the Court's ruling with regard thereto.

5.        The essence of the argument for the Defendant is that, whereas the Court clearly has a discretion and power to order the destruction of a mobile telephone, where, as in this case, the phone contains personal images which are of significant sentimental value to the Defendant, it operates as, if we may characterise it thus, a harsh and additional punishment to have those destroyed when the phone is destroyed.  They have not, so we are informed, been backed up and therefore the destruction of the phone will result in the permanent destruction of those pictures.

6.        In the instant case, the Defendant is particularly concerned to preserve the pictures of his elderly mother who is unwell and of his daughter and we can, of course, fully appreciate that those may be of significant sentimental importance to him.

7.        The contrary argument, presented by the Crown, is that the DFU of the States of Jersey Police simply does not have the resources to extract the personal photographs from the mobile phone prior to its destruction.  It would, so we are advised, be a time-consuming exercise at a time when the DFU is under very significant pressure and its resources are stretched.  It would entail an officer from the DFU sifting through the Defendant's mobile and making decisions about what is and what is not a personal photograph and this could lead to challenges and be further time-consuming.  It is suggested that the result desired by the Defendant could only be achieved if an independent expert were appointed at the Defendant's expense to carry out the exercise and the matter would then be vetted by an officer of the DFU.  The Defendant, for his part, has indicated that his sister would be prepared to assist and identify the appropriate pictures.

8.        It is perhaps significant to note the extent of the use made by the Defendant of the mobile phone in the commission of the offences for which he fell to be sentenced.  This appears to be limited to one instance in which the Defendant and his co-accused arranged to meet at a specific time.  There is no suggestion that the phone was used as part of the commission of the offences themselves (such as, for example, in the downloading of illegal images of children or arranging drugs deals or the like), nor is there any suggestion that significant information, if any, is to be found on the phone.  Its use is limited to one instance, as a communication device to arrange a rendezvous.  There was no suggestion in this matter of drugs dealing or of the onward supply of the cannabis grown.  It was accepted that the cannabis was to be either for personal use or a small amount of it gifted to friends.

9.        There is no doubt that the Court on other occasions has accepted that before phones are destroyed, a period of time should be afforded to a Defendant, at the Defendant's own expense, to extract personal photographs (see, for example, Attorney General v Bennett [2021] JRC 093). 

10.      We understand that this is a potentially difficult matter because phones in modern times often contain very substantial amounts of personal data which are unconnected with the commission of the offence in question and a decision to destroy a phone where the phone has only been used as a simple communication device may seem disproportionate.

11.      It may be that the destruction of a phone in some cases is not a proportionate or appropriate use of the Court's undoubted jurisdiction to order the destruction of items used in the commission of offences.  Such a case may be where the use of the phone was marginal.  We were not addressed on that aspect at the time of sentencing and accordingly the Court made the order that it did for the destruction of the telephone.

12.      In our view, generally speaking, where the phone in question has been used in a material sense to assist in the commission of the offence for which the Defendant is sentenced or is indeed itself the medium through which the offence is committed, then the destruction of that phone is a matter that the Court would normally order. 

13.      If a phone thus to be destroyed contains matters of a genuinely sentimental value (and we do not, by that, mean simply matters of a personal nature such as, for example, downloaded commercial videos or music or materials of that nature), then the Defendant should be afforded the opportunity at his own expense to have that personal material - usually photographs of their family and other matters of a personal nature - extracted before the phone is destroyed.

14.      If, however, the use of the phone in the commission of the offence has been slight or even marginal, then that may be a reason why the Court would elect not to order its destruction.  This a matter upon which the Court should be addressed at sentencing and in the future should be dealt with in the Crown's conclusions.

15.      Turning to the instant case, however, it is clear on the facts that the use of the phone in this case was marginal in the sense that there was a simple message between two friends - the co-accused - arranging to meet on a single occasion.  Had it been a simple telephone call or had they been meeting to make that arrangement then the destruction of the phone in question would not have arisen.

16.      We therefore revoke our order for the destruction of the phone and direct that it may be returned to the Defendant.

17.      The Court would urge Crown and defence counsel to agree a position with regard to a Defendant's phone prior to any sentencing hearing.  If it cannot be agreed then the Crown's position should be articulated in its conclusions and then the defence may address the Court on the issue during the course of mitigation in the usual way. 

18.      We repeat, however, that it remains entirely within the discretion of the Court to order the destruction of a phone, with or without delay to afford the Defendant the opportunity to preserve personal items, and that in the vast majority of cases, where a phone has been used as a significant ancillary part of the commission of the crime, including to make arrangements in connection with the offence or in ways more serious than that,  its destruction will be ordered.

Authorities

AG v Bennett [2021] JRC 093.