Police have rolled out a digital consent form across England and Wales, following a number of incidents where rape and sexual assault cases collapsed after crucial digital evidence emerged.
If victims refuse to sign over their phones to police, they risk prosecutions not going ahead. The form states: “If you refuse permission for the police to investigate, or for the prosecution to disclose material, which would enable the defendant to have a fair trial, then it may not be possible for the investigation or prosecution to continue.”
But it also states that victims will be given the opportunity to explain why they will not accede to the request. Critics of the move, say that it treats victims as suspects and could deter victims from coming forward, while Big Brother has branded the move a “digital strip search”.
Police and prosecutors say the forms are an attempt to close a loop-hole in the law, which means police cannot force complainants or witnesses to disclose their devices. Director of Public Prosecutions Max Hill said such digital information would only be looked at where it forms a “reasonable” line of inquiry, with only relevant material going before a court if it meets strict rules.
Before a case goes to trial, police are required to turn over relevant material to the case, which can undermine the prosecution or support the defence. The decision to introduce digital consent forms came after a number of scandals saw cases dismissed after crucial evidence emerged at the last minute causing raising concerns that evidence was not being properly disclosed early enough in the case.
In a high profile case, student Liam Allen was wrongly accused of rape, but the case was only dismissed when evidence from his accuser’s phone exonerated him while he was on trial. It emerged that a detective had failed to hand over the text messages before the trial.
Subsequently, the Metropolitan Police issued Allen with an apology for its mishandling in the case. According to Allen’s lawyer, Simone Meerabux, the alleged victim’s phone contained messages saying how much she loved Allen and contained references to rape fantasies.
The forms can be used in any form of criminal complaint, but they are more likely to be used in rape and sexual assault cases, where often the complainants know the suspect.
Rape survivor and activist Winnie M Li told Sky News the move is “still not going to provide evidence on whether or not a rape was committed,” adding that it was wrong to take away a victim’s phone at such a vulnerable time.
“At the same time, it may provide certain kinds of messages or insights into her character that the defence can then use against her,” said Li. “I think to require a rape victim to give up her privacy at a time when she’s already very vulnerable is doing a huge disservice to rape victims and failing to understand what they’re going through.”
Harriet Wistrich, director of the Centre for Women’s Justice, said: “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.”
Rachel Krys, co-director of the End Violence Against Women Coalition, said: “We have an extremely serious problem with prosecuting rape in this country and it is a fact that most rapists get away with it.
“Part of the reason for this is that investigations too often focus on women’s character, honesty and sexual history, despite rules which are supposed to prevent this, instead of the actions and behaviour of the person accused. There is no reason for rape investigations to require such an invasion of women’s privacy as a matter of routine.”
Prosecutors and Police say that only material relevant to a potential prosecution will be extracted, but on the forms it states that even information of a separate criminal offence “may be retained and investigated”.
An investigation by the Information Commissioners Office (ICO) is underway into the use of data extraction technology on the mobile phones of suspects, victims and witnesses. An ICO spokeswoman said: “We are also currently looking at concerns raised around the collection, secure handling and the use of serious sexual crime victims’ personal information.”