The National Police Chiefs’ Council has this month issued new forms and guidance, which set out the circumstances in which the police may lawfully ask a victim or witness to provide material from their digital devices in the course of a criminal investigation. The announcement forms part of the settlement of a legal challenge commenced by the Centre for Women’s Justice last year.
The legal challenge brought on behalf of two victims of serious sexual offences, ‘Olivia’ and ‘Courtney’, set out how consent forms routinely issued to victims were unlawful, in policy and practice, and discriminated against women. Both claimants had been told that no criminal action could be taken against their attackers unless they agreed to full downloads of data from their mobile phones spanning a number of years. Their experience was echoed by hundreds of rape and sexual assault complainants, many of whom had contacted CWJ for advice about the ongoing practice.
The case was put on hold last year to await a report by the UK Information Commissioner which was published, following an 18-month investigation, in June 2020. The Commissioner’s investigation which reviewed a number of different police forces’ procedures for extraction of mobile phone data, also found ‘no evidence’ of police officers considering less intrusive alternatives to mobile phone extraction, and expressed concern that: ‘Considerations of necessity, proportionality and collateral intrusion were not, based on what we saw, sufficiently or routinely documented’.
A Court of Appeal judgment, Bater-James and Mohammed v The Queen [2020], that was handed down shortly after the Commissioner’s damning report, provided a set of guiding legal principles for a correct lawful and proportionate approach to the disclosure of data from complainants in rape and other sexual offences.
Since bringing a legal challenge, the Centre for Women’s Justice has been overwhelmed with enquiries from victims and frontline service providers raising concerns about intrusive disclosure requests, which were deterring complainants from pursuing allegations.
The forms and guidance that have now been issued to police forces across the country – which can be found here – include requirements for police officers to demonstrate clearly to victims and witnesses that they are only seeking ‘specific’ digital material that relates to a ‘reasonable line of enquiry’, is ‘proportionate’ in the circumstances and is ‘strictly necessary’ for the purpose of the investigation. Police officers will be required to provide victims and witnesses with detailed information about the process, and their rights, to include: details of any specific apps or other areas of the device they will need to examine, and any search terms or date parameters that police officers will be applying in order in order to narrow their search.
Police officers will also be expected to show in each case that they have considered less intrusive alternatives to digital extraction, which means that a victim should only be required to hand over their phone to the police in circumstances where it is absolutely necessary. The guidance provided to officers recognises for the first time, in light of the last year’s legal developments, that ‘Devices should not routinely be obtained from victims and witnesses’.
In response to the release of the new forms, ‘Olivia’ said:
“I was raped by a stranger, and the police demanded 7 years of irrelevant data from me that predated the rape. The form they used told me they would keep every bit of information on my phone for 100 years. This was a gross and unnecessary invasion of my privacy. After a legal battle lasting a year and a half the police and CPS have finally agreed to new consent forms that make clear that only relevant texts, photos and bank records etc, from the relevant dates, should be collected. I hope that going forward, women who are brave enough to report sexual offences will not now be faced with the same distressing choice that I was - to hand over the details of almost a decade of my life, or see my rapist walk the streets, free to do it again.”
‘Courtney’ said:
“While I am satisfied that these forms offer a real chance to create a system that can guarantee rights for both the defendant and victim, I am deeply mistrustful of the criminal justice system given how I have been treated over the past few years. I am sceptical because these new forms still operate in a system that can be biased against victims of rape for many reasons. I wonder if they will be properly implemented by police forces across the country and whether it will be the status quo all over again. I do appreciate the changes made though, because what existed before was illegal, and was contributing to a public safety crisis.”
Kate Ellis, solicitor at the Centre for Women’s Justice, who represented ‘Olivia’ and ‘Courtney’ in their legal challenge, said:
“The publication of these significantly improved consent forms suggests an acceptance, at last, from the authorities that in order to have a fair trial you do not have to require the victim to sign a blanket waiver with respect to their privacy rights. I remain concerned that as a result of the unlawful and onerous forms that were previously issued to victims – for so long – many rape victims may have already been deterred from pursuing their complaints, or had their cases dropped by the police without good reason.”
Silkie Carlo, Director of Big Brother Watch which has been campaigning for a number of years on this issue, said:
“This major win against digital strip searches is a huge success for the brave women who took on this legal challenge. It vindicates our long campaign with the Centre for Women's Justice to protect victims from unwarranted digital interrogations and is an important step towards protecting victims' legal rights to consent, privacy and justice."