Conflicting guidance will not reassure women who report rape that their privacy rights will be respected.
The Information Commissioner has today published their report on the processing of victim’s personal data in rape and serious sexual offences investigations. This is the third official guidance published within a week on how sensitive personal data about rape survivors is treated by the police and Crown Prosecution Service (CPS).
This ICO’s long awaited report was triggered by research from the London Victim’s Commissioner and input from Centre for Women’s Justice (CWJ) and other women’s sector organisations highlighting the appalling loss of confidence from victims who reported rape and serious sexual offences. Those who report rape to the police often feel that they themselves are under investigation, as police routinely request access to a broad range of records about them, such as therapy records, medical records, school and social services records. The Government’s own Rape Review in 2021 acknowledged that disproportionate requests for such records should be prevented.
However, the new guidance published by the Information Commissioner’s Office today, and by the Attorney General and CPS last week, will not alleviate this problem. These three sets of guidance are contradictory and confusing, with four different legal tests referred to in different places (see below). One of these, the so-called “relevance test” is so broad it virtually gives the police free rein. Other tests are narrower, but easy to overlook and difficult to interpret. The official guidance is now even more confusing than before.
New CPS guidance on “pre-trial therapy” does not provide clarity on how therapists can meet their duties to act in the best interests of their clients, and also deal with police requests for disclosure of therapy notes. They will not inspire the confidence of rape survivors.
Nogah Ofer, solicitor at CWJ said:
“Whilst we welcome the Information Commissioner’s recognition of the scale of the problem and the clear guidance that police must stop using open ended consent to disclosure forms, unfortunately we consider the guidance overall is not sufficiently clear.”
Harriet Wistrich, Director of CWJ said:
“What is needed is clear unequivocal guidance that police and prosecutors should not be seeking to trawl rape survivors’ personal data looking for anything that may undermine their credibility. That is not done with any other crime. The new guidance will not achieve the protections that rape survivors need, or restore their faith in the system”
The four legal tests referred to in the three sets of guidance published in the last week are below:
Relevance test – "has some bearing on any offence under investigation or any person being investigated, or on the surrounding circumstances of the case"
Court of Appeal in R v Alibhai (2004) - "not only a suspicion that the third party had relevant material but also a suspicion that the material held by the third party was likely to satisfy the disclosure test" [undermine prosecution case or assist the defence]
Court of Appeal in R v Bater-James (2020) - "there must be a properly identifiable foundation for the inquiry, not mere conjecture or speculation"
Data Protection Act – “strictly necessary and proportionate”