Police and Crown Prosecution Service requests to download the contents of rape victims’ mobile phones amount to a “digital strip search” and are unlawful, a coalition of civil liberties organisations has claimed.
In April, “Digital Processing Notices” were implemented in England and Wales, which notify victims police are likely to download “almost all” a phone’s data “and browse through it”.
Police and prosecutors have warned they may not be able to pursue certain investigations if victims do not allow the contents of their phones to be downloaded, and claim just because material is downloaded it doesn’t it will be examined in its entirety.
Conversely, the failure of prosecutors to properly examine and/or disclose the contents of mobile devices has led to the collapse of several trials, and potential wrongful convictions. One trial to collapse was Liam Allan’s - his texts revealed his accuser had repeatedly pestered him for “casual sex” and spoke of ‘rape fantasies’, but these weren’t passed to his lawyers as the officer who’d reviewed them said there was "nothing relevant" in the messages.
Max Hill, director of public prosecutions, argues there has in fact been no policy change and legal safeguards restricting use of private information will be upheld.
“We’re not interested in someone’s mobile device just because they have one…It’s [about] having a conversation to take them through [the process] if there’s material on a device which forms a reasonable line of inquiry. There are some pretty hard and fast rules about the circumstances in which private information ends up in the hands of a public court,” he said in April.
An alliance of 10 campaign groups - including Big Brother Watch, Amnesty International, the Centre for Women’s Justice, End Violence Against Women, the Fawcett Society, Justice, Liberty, Privacy International, Southall Black Sisters and the Survivors Trust - strongly beg to differ.
The coalition claim the measure is “highly likely to infringe victims’ data protection and privacy rights”, cause delays to investigations and deter rape victims from informing police.
“These digital strip searches are a gross invasion of victims’ privacy and an obstruction of justice. Our phones contain emails, social media accounts, app data, photos, browsing history and so much more. These phone downloads can even exceed the information gathered from a police property raid,” says Silkie Carlo, director of Big Brother Watch.
Baird said: “Big Brother Watch has done a detailed analysis. It confirms that, uniquely in rape cases, more demands for the content of digital devices are made of complainants than can lawfully be made of defendants.
“Unless they sign the entire contents of their mobile phone over to police search, rape complainants risk no further action on their case. These are likely to be traumatised people who have gone to the police for help.”
Harriet Wistrich, director of the Centre for Women’s Justice, says the coalition is preparing legal action as the practice is unlawful, discriminates against women – “who are the vast majority of rape victims” – and violates the right to privacy and data protection principles.
“Many women are fearful of reporting rape for a variety of reasons, including the fear they will be disbelieved or judged. The requirement to hand over the whole of their data history is an additional disincentive to a massively under-prosecuted crime,” she adds.
The group’s call is also backed by Vera Baird QC, the Victims’ Commissioner for England and Wales, who says Big Brother Watch’s “detailed analysis” of Digital Processing Notices has confirmed that in rape cases, more demands for the content of digital devices are made of complainants than can lawfully be made of defendants.https://bigbrotherwatch.org.uk/wp-content/uploads/2019/07/Digital-Strip-Searches-Final.pdf
“Unless they sign the entire contents of their mobile phone over to police search, rape complainants risk no further action on their case. These are likely to be traumatised people who have gone to the police for help,” she says.
The Information Commissioner’s Office (ICO) has launched an investigation into the issue - although wrongly-accused Liam Allan has urged the coalition to reconsider their stance.
"The information stored can be just as vital to proving guilt as innocence. This is constantly spun as a negative thing for real victims of rape, when in truth, without the victim even realising, there could be vital evidence within those messages that assist their case. Without such an investigation, many real cases will collapse, whilst many false ones will go through. That’s a dangerous gamble, and no one’s justice is worth gambling. I’m fearful this is moving things in the wrong direction for victims of crime and miscarriage of justice victims," he laments.