Rape victims are being told they must hand over their mobile phones to police or risk prosecutions against their attackers not going ahead, in a move tantamount to “digital strip searches” say campaigners.
Consent forms, which ask permission to access messages, photographs, emails and social media accounts, have been rolled out across the 43 forces in England and Wales.
The move follows the disclosure scandal which rocked confidence in the criminal justice system, when a string of rape and serious sexual assault cases collapsed after crucial evidence emerged at the last minute.
Police and prosecutors say the forms are an attempt to plug a gap in the law, which cannot force complainants or witnesses to disclose their phones, laptops, tablets and smart watches.
Max Hill, the Director of Public Prosecutions, said digital devices will only be looked at when it forms a “reasonable line of enquiry” and only “relevant” material will go before a court if it meets “hard and fast” rules.
“If there’s material on a device, let’s say a mobile phone, which forms a reasonable line of enquiry, but doesn’t undermine the prosecution case and doesn’t support any known defence case, then it won’t be disclosed,” he said.
But privacy campaign group Big Brother Watch has dubbed the measures “digital strip searches” and said “treating rape victims like suspects” could deter people from reporting crimes.
Northumbria Police and Crime Commissioner Dame Vera Baird said the forms are just part of the problem as police and prosecutors look to harvest third party material, such as school records and medical notes.
“The police are really saying, ‘if you don’t let us do this, the CPS won’t prosecute,’” she said.
“It is a real concern that people will be put off making a complaint in the first place if it’s widely thought they are going to have to hand over lots of personal data – everyone lives on their phones, particularly teenagers.”
In the lead-up to trials, police and prosecutors are required to hand over relevant material that can undermine the prosecution case or assist the defence.
The regime came under sharp focus from the end of 2017 after a string of defendants, including student Liam Allan, then 22, had charges of rape and serious sexual assault against them dropped when critical material emerged as they went on trial.
Harriet Wistrich, from the Centre for Women’s Justice, said the move “adds insult to injury”.
“If you have been raped, that is a huge violation and if you then have to disclose your personal, very intimate history for police officers and lawyers to trawl through, that is also violating.”
Speaking on BBC’s Radio 4 Today programme, Allan said: “I completely understand why it’s another violation, but...the best way I can describe is I was innocent. I was asked to give over my phone.
“So does that mean I lose all my rights to privacy because I was accused? I was innocent, I am now a victim because somebody has made a horrible accusation.
“But I have the understanding of ‘I need that’...there’s gonna be something in there that may assist the prosecution, but there may also be something in there that can assist the defence side of things. It has to work both ways with the ideology of it all.”
The CPS launched a review of every live rape and serious sexual assault prosecution in England and Wales and, along with police, has implemented an improvement plan to try to fix failings in the system.
“It is a real concern that people will be put off making a complaint in the first place if it’s widely thought they are going to have to hand over lots of personal data – everyone lives on their phones, particularly teenagers”
- Dame Vera Baird
Some 93,000 officers have undertaken training, while police hope artificial intelligence technology can help trawl through the massive amounts of data stored on phones and other devices.
In rape and sexual assault cases, prosecutors also now use disclosure protocols previously used in terror trials.
The digital consent forms can be used for complainants in any criminal investigations but are most likely to be used in rape and sexual assault cases, where complainants often know the suspect.
The forms state: “Mobile phones and other digital devices such as laptop computers, tablets and smart watches can provide important relevant information and help us investigate what happened.
“This may include the police looking at messages, photographs, emails and social media accounts stored on your device.
“We recognise that only the reasonable lines of enquiry should be pursued to avoid unnecessary intrusion into the personal lives of individuals.”
Shami Chakrabarti, Labour’s Shadow Attorney General, said: “Any suggestion that rape victims must automatically hand over their phones in exchange for the support of the authorities is as unlawful as it is wrong.
“Women, who are the overwhelming majority of rape victims, are already discriminated against in judicial system. A trawl through their social media only reinforces the idea they are in the dock.
“This is the effect of the purported ‘consent form’. What is required instead is legislative action and increased government spending to improve detection and conviction rates.”
Scotland Yard’s Assistant Commissioner Nicholas Ephgrave said he recognised the “inconvenient” and “awkward” nature of handing devices to police and admitted: “I wouldn’t relish that myself.”
He added: “People who have been victimised and subjected to serious sexual assaults, for example, that’s an awful thing to happen to them and you don’t wish to make it worse by making their lives really difficult.
“But to pursue the offender, the way the law is constructed, we do have these obligations, so we have to find a way of getting that information with a) as much consent as we can, which is informative and b) with the minimum of disruption and irritation and embarrassment to the person whose phone it is that we’re dealing with.”
Police and prosecutors have sought to reassure victims of crime that only material relevant to a potential prosecution will be harvested, but the forms state even information of a separate criminal offence “may be retained and investigated”.
They also state: “If you do not provide consent for the police to access data from your device you will be given the opportunity to explain why.
“If you refuse permission for the police to investigate, or for the prosecution to disclose material which would enable the defendant to have a fair trial then it may not be possible for the investigation or prosecution to continue.”
Charity Rape Crisis said it has “real concerns” about the practice and a potential “blanket approach” being taken when scrutinising a victim’s personal data.
“We are also being told by our member Rape Crisis Centres that in many cases suspects are not being subjected to the same level of scrutiny. In some cases, suspects’ phones aren’t even requested.
“Among the reasons victims and survivors tell Rape Crisis Centres they do not report are fear of the criminal justice system and of being made to feel ‘like the one under investigation / on trial.’
“When criminal justice outcomes for victims and survivors of child sexual abuse, rape and all forms of sexual violence are so woefully low, a practice that can feel so invasive, punitive and off-putting to survivors seems counter-intuitive.”