Information Commissioner called to investigate 'antiquated and wrong' demands for rape victims' records
Exclusive: Mounting pressure for probe after police accuse prosecutors of 'raising bar' of evidence needed to take cases to court
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Campaigners are demanding a full investigation into “antiquated and wrong” demands for access to rape victims’ mobile phone data and personal records.
The Information Commissioner’s Office (ICO) is considering widening an existing probe into the use of claimants’ information, amid claims that prosecutors are making increasingly intrusive demands.
Big Brother Watch, which campaigns on privacy issues, has written to the watchdog, calling for an investigation into statements that allow unrestricted access to victims’ personal information.
The letter, seen exclusively by The Independent, argues that they could breach data protection and human rights law, as women are allegedly told that abusers will not be charged if they do not give blanket consent for personal records to be accessed by police.
Campaigners also oppose “routine” downloads of the contents of sexual offence victims’ phones, including photos, text messages, emails, call logs, web browsing data, videos and other data – all of which can be kept for 100 years.
Silkie Carlo, the director of Big Brother Watch, said: “At a time when more women and men than ever are pursuing justice against sex offenders, the justice system is letting them down.
“Victims of any other type of crime are not asked to put their private lives on trial – reserving that approach for victims of sexual assaults is antiquated and wrong.
“These digital interrogations obstruct justice, deny victims their basic rights, and swamp police in masses of irrelevant data they cannot handle. We urge the ICO to investigate this issue as a matter of priority.”
Lawyer Harriet Wistrich, who has represented the victims of black cab rapist John Worboys, said the concerns are shared by the Centre for Women’s Justice.
She said the group had been referred cases “which illustrate the totally disproportionate and potentially unlawful accessing of personal data of those complaining of sexual offences”.
“This approach will only reverse progress made in encouraging women to come forward to report rape and serves to re-enforce a culture of victim blaming and impunity for rapists,” Ms Wistrich warned.
The ICO said it was already investigating mobile phone data extractions and would consider the new request.
A spokesperson added: “We are aware of the concerns about the processing of victims’ personal information and are currently considering the issues.”
The ICO previously told a parliamentary inquiry it has been receiving numerous reports of data breaches “which relate to inappropriate disclosures within the criminal justice process”.
Some had seen claimants’ personal data sent to defence solicitors and on to women’s alleged attackers.
In one such case in 2016, Kent Police was fined £80,000 for handing the entire contents of a domestic abuse victim’s mobile phone to her partner’s lawyer, who passed it to the suspect.
She had given the phone to police because it contained a single video supporting her accusation, but officers downloaded files including text messages and photographs.
The explosion in mobile phone data, which can run to tens of thousands of pages of evidence if fully downloaded, has been blamed for significant backlogs in police investigations and delays in criminal proceedings.
The Metropolitan Police is among forces trialling artificial intelligence to ease the work for officers combing through mountains of data, but Big Brother Watch called the move “extremely concerning” because of an alleged lack of transparency with commercial software.
Campaigners also argued that the range of data collected is “disproportionate” and damages the privacy of friends and family in contact with complainants.
Their letter came after police officers raised concerns about victims dropping charges and claimed the bar for sexual offence cases to reach court has been raised by the Crown Prosecution Service (CPS).
The Association of Police and Crime Commissioners has said: “evidence on the ground suggests that even when officers are confident that they have pursued all reasonable lines of inquiry, they are often being told by the CPS to pursue all other available sources”.
Sara Thornton, chair of the National Police Chiefs’ Council (NPCC), is among senior figures warning that people could be deterred from reporting rape “because they fear intrusion into their lives and private information that’s not relevant to the crime being shared in court”.
The CPS says practices have not changed, although a senior official admitted earlier this month that the collapse of a series of rape trials over disclosure failures had “resonated through the whole criminal justice system”.
Among the most high-profile was that of student Liam Allan, who had 12 rape and sexual assault charges against him dropped after the discovery of messages showed the claimant pestered him for “casual sex”.
An investigation by the Justice Committee found that the failure of police and prosecutors to properly share relevant evidence with defence lawyers could cause the collapse of trials or miscarriages of justice.
“As well as the human cost, this wastes valuable resources and has potentially life-changing implications for individuals involved which of course cannot be quantified in merely financial terms,” MPs warned in July.
Their inquiry heard clashing submissions from defence lawyers and victim support groups on how personal information should be handled, with the Criminal Bar Association arguing that a claimant’s credibility must be examined when one “person is saying that something happened and another person is saying that it did not”.
The committee concluded that “the right to a fair trial is an absolute right which cannot be violated to protect the right to privacy,” but called for greater clarity for police and prosecutors.
The Criminal Procedure and Investigations Act says police are obliged to follow all reasonable lines of inquiry and that prosecutors have the duty to disclose material “which might reasonably be considered capable of undermining the case for the prosecution”.
It also allows the defence to request new material that has not been disclosed.
The way such requests are handled, and what should be deemed relevant material, is the subject of fierce debate after cases where “prejudicial and irrelevant” records were used to undermine claimants.
Blanket requests for access to records including health and education are made with what is known as “Stafford” statements, where complainants are asked to give consent for any inquiries to be made by police.
The Victims Commissioner has raised the issue with the ICO and the NPCC is currently producing national guidance to create a “consistent approach” from forces across England and Wales.
Big Brother Watch called for the ICO to “examine the protection of data pertaining to complainants of sexual violence holistically, from the initial police investigation and the personal data the police transfer to the CPS, through to subsequent disclosure by the CPS to the defence”.