Rape cases dropped over ‘unlawful’ police demands for access to victims’ phones

‘Imagine your most private thoughts and feelings from counselling held in your phone being seen by anyone, let alone your rapist’, says survivor

The new forms warn victims they will be investigated if evidence is found on their phones relating to other criminal offences - with campaigners saying this has caused victims to fear they will be investigated for minor offences (AP Photo/Kiichiro Sato, File)

Rape and sexual assault complainants have revealed police stopped investigating their cases after they refused to disclose up to seven years of phone data.

The revelations come as campaigners warn police and Crown Prosecution Service requests to download the contents of victims’ mobile phones are unlawful and a “gross invasion” of victims’ privacy.

Consent forms asking victims of crime for permission to access information including messages, emails, and photos have been rolled out by police forces since April.

A campaign challenging the controversial policy, which campaigners describe as being akin to a “digital strip search”, was launched by a coalition of 10 civil liberties organisations on Tuesday.

The organisations are Big Brother Watch, Amnesty International, End Violence Against Women, the Centre for Women’s Justice, Southall Black Sisters, the Fawcett Society, Justice, Liberty, Privacy International, and the Survivors Trust.

The petition against the policy, which campaigners say most commonly affects victims of sexual offences, has gained more than 35,000 signatures.

A report by Big Brother Watch, which was published on Tuesday, gathers testimony from several women whose cases were dropped after they refused consent for a blanket phone search. It includes the case of a woman who reported a “sustained and sadistic attack” by an acquaintance.

She said: “Imagine your most private thoughts and feelings from counselling held in your phone being seen by anyone, let alone your rapist. And imagine having no guarantee about how in the future this data may be used or stored. The decision to have my case dropped was a no-brainer for self-preservation, but I now feel that the requirement to surrender one’s data is the same as being raped with impunity.

“The optimism I had at the beginning of this process of “taking power back” has been replaced with a feeling of absolute helplessness.”

In another case, the Crown Prosecution Service demanded to search the phone of a 12-year-old rape victim despite the fact the perpetrator had admitted the crime. The case was delayed for months as a result.

The new forms warn victims they will be investigated if evidence is found on their phones relating to other criminal offences. Campaigners say this has caused victims to fear they will be investigated for minor offences, or that they could potentially incriminate their friends or family by giving their phones to the police.

Victims’ groups and MPs warned that the policy is deterring rape victims from coming forward to the police.

One woman, who wanted to remain anonymous, reported being drugged and then attacked by a group of strangers. Despite being willing to hand over relevant information, police asked for seven years worth of phone data, and her case was then dropped after she refused.

“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.”

Silkie Carlo, director of Big Brother Watch, said: “These digital strip searches are a gross invasion of victims’ privacy and an obstruction of justice. Our phones contain emails, social media accounts, app data, photos, browsing history and so much more. These phone downloads can even exceed the information gathered from a police property raid.

“Understandably, many victims are refusing to be violated in this way. But no victim should have to make a choice between their privacy and justice. The digital interrogation policy doesn’t allow victims to give police relevant pieces of evidence without feeling like their private lives will be put on trial. This disproportionate approach bears none of the basic qualities required by data protection or human rights law, and it’s staggering that the policy is yet to be revoked.”

She called for police chiefs to urgently retract the policy and create a more “competent, proportionate and lawful approach”.

After rights groups raised alarm bells about the policy, the Information Commissioner’s Office launched a high-priority investigation into the issue which is ongoing.

Vera Baird QC, the victims’ commissioner for England and Wales who is backing the group’s call, said: “Big Brother Watch has done a detailed analysis. It confirms that uniquely in rape cases more demands for the content of digital devices are made of complainants than can lawfully be made of defendants.

“Unless they sign the entire contents of their mobile phone over to police search, rape complainants risk no further action on their case. These are likely to be traumatised people who have gone to the police for help.”

Police argue searches are needed in some cases as trials collapsed when evidence was not disclosed to defence lawyers. Prosecutors maintain that not all downloaded material will be examined.

Harriet Wistrich, director of the Centre for Women’s Justice, said: “Many women are fearful of reporting rape for a variety of reasons including the fear they will be disbelieved or judged. The requirement to hand over the whole of their data history is an additional disincentive to a massively under prosecuted crime.”

The award-winning human rights lawyer added: “We are preparing a legal action on the basis these consent forms are unlawful as they discriminate against women – who are the vast majority of rape victims – as well as a violation of the right to privacy, and of data protection principles.”

The CPS is already facing fierce criticism for the alarming drop in prosecutions for rape – with campaigners saying prosecutors are failing rape victims “at every stage” after recent figures revealed the time taken to charge suspects has more than doubled in the past seven years.

Government figures show there was a 23 per cent drop in the number of rape cases taken on by the CPS in the 12 months to 2017-18, despite a 16 per cent increase in police-recorded rape over the same period.