Rape victims to mount legal challenge over police demands for phones and personal data

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Rape complainants who were told their cases could be dropped if they did not hand their mobile phones and other digital devices to police are to mount a legal challenge.

The Centre for Women’s Justice (CWJ) and Big Brother Watch are attempting a judicial review of new forms being used by police forces across England and Wales.

The documents request formal consent for officers to comb through victims’ digital devices and warn that if they refuse, “it may not be possible for the investigation or prosecution to continue”.

The claim is to be brought by two or more women affected by the demands, including a woman called Olivia* who recently reported being raped.

“The data on my phone stretches back seven years and the police want to download it and keep it on file for a century,” she said.

“My phone documents many of the most personal moments in my life and the thought of strangers combing through it, to try to use it against me, makes me feel like I’m being violated once again.”

Police and prosecutors said the new forms make the process clearer, by explaining why devices are requested and how data is used and stored.

But victims’ groups have raised concerns the process will discourage women from coming forward or make them drop complaints, at a time when only 1.7 per cent of reported rapes are prosecuted.

The CWJ said that while the new consent forms will bring consistency across the 43 police forces in England and Wales, they are “unlawful”.

The group said that although the documents can be used for all crimes, they will “primarily apply to victims of rape, sexual assault and domestic abuse” and potentially violate the Public Sector Equality Duty by discriminating on the basis of sex.

Lawyers also argued the policy violates data protection laws and the right to privacy, because of “insufficient safeguards or any independent authorisation process”.

Harriet Wistrich, director of CWJ, said: “It is now routine for any rape complainant to be asked to provide their mobile phone data when reporting a crime.

“Given the amount of personal and often very intimate data stored on such devices, particularly by young women, it is not surprising that many victims who are reporting a deeply violating offence do not wish to be further exposed.

“Most complainants fully understand why disclosure of communications with the defendant is fair and reasonable, but what is not clear is why their past history – including any past sexual history – should be up for grabs.

“We seem to be going back to the bad old days when victims of rape are being treated as suspects.”

A separate investigation into the use of sexual abuse victims’ personal data by the Information Commissioner is ongoing.

Civil liberties charity Big Brother Watch said the policy amounted to a “digital strip search” and said victims should not have to “choose between their privacy and justice”.

Rachel Krys, co-director of the End Violence Against Women Coalition, said rules that are meant to prevent reliance on a woman’s “character, honesty and sexual history” in court cases can fail.

“[The forms] are an attempt to make intense scrutiny of victims routine and accepted, when for many years we have attempted to ensure the investigation and trial process is fair to those reporting rape,” she added. “There is no need for rape investigations to require such an invasion of women’s privacy as a matter of routine.”

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.”

Jeremy Corbyn said the “disturbing” practice risked allowing more rapists to get away with their crimes.

“We need to do all we can to support victims of sexual violence to come forward and report cases to the police,” he wrote on Twitter.

“With rape and sexual assaults already under reported, this disturbing move risks letting more rapists get away with it.”

Max Hill, the director of public prosecutions, insisted that phones were not being seized “as a matter of course”.

He told journalists the Crown Prosecution Service (CPS) does not instruct police to probe devices on “a purely speculative basis [but] only when reasonable and proportionate”.

The forms were brought in as part of a review sparked by a series of rape cases that collapsed over disclosure failings, and warnings over miscarriages of justice.

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, had charges of rape and serious sexual assault against them dropped over the discovery of phone messages and photos.

Mr Allan, now working with miscarriage of justice campaign group Innovation Of Justice, said he “did not even think to ask” for details of the complainant's phone contacts with friends around the time of the alleged assault.

“That was some of the valuable evidence,” he told BBC Radio 4's Today programme. “If we have to ask for these things, not knowing how the process works, then we are at a disadvantage and it's not a fair trial."

The CPS launched a review of every live rape and serious sexual assault prosecution in England and Wales and has implemented an improvement plan with police to try to fix failings in the system.

At least 93,000 police officers and staff have undertaken training, while police hope artificial intelligence technology can help trawl through the massive amounts of data stored on phones and other devices.

A CPS spokesperson said: “Sexual offences can have a devastating impact and it’s important that victims have confidence that if they report a crime, it will be handled sensitively and fairly by police and prosecutors.

“Balancing the rights of both a complainant and a suspect means that all reasonable lines of enquiry must be pursued. Searches of mobile phones and social media are not automatic, and only information that is relevant to the case may be assessed. Guidance to police and prosecutors is explicit that only reasonable lines of inquiry are pursued, to avoid unnecessary intrusion into a complainant’s personal life.

“There has been no change in policy. These new consent forms are intended to achieve consistency nationally, so complainants are not treated differently by different forces.”

*names have been changed to protect anonymity