Exclusive: case of two complainants funded by Equality and Human Rights Commission forces U-turn
Alexandra Topping The Guardian
Thu 16 Jul 2020 15.55 BSTFirst published on Thu 16 Jul 2020 09.04 BST
The Crown Prosecution Service and police have been forced to scrap controversial “digital strip searches” of rape complainants, following a legal threat from two survivors of sexual abuse and sustained campaigning from privacy and human rights groups.
Little more than a year after a new policy around the disclosure of private information was introduced, the police and CPS have made a major U-turn and will withdraw digital data extraction consent forms from operation.
Funded by the Equality and Human Rights Commission, the Centre for Women’s Justice took on the case of two complainants who argued that the forms – which required them to divulge all their mobile phone data – were unlawful, discriminatory and intrusive.Advertisement
“We welcome the decision from the National Police Chiefs’ Council (NPCC) and hope it leads to improving confidence in the justice system on the part of survivors of sexual assault,” said Rebecca Hilsenrath, the chief executive of the Equality and Human Rights Commission, who said the forms disproportionately impacted women and acted as a barrier to justice.
Courtney, one of the complainants whose report of sexual assault was dropped by the CPS when she refused to hand over her mobile phone, said she hoped the decision would mean other victims of sexual violence would not have to chose between justice and privacy.
“There was nothing consensual about these ‘consent forms’ and it is a relief that the CPS and police have finally accepted that,” she said. “I approach this announcement with some trepidation, however, as I have been so seriously hurt and let down by the criminal justice system in the past. I am concerned that just doing away with the forms won’t necessarily improve practice.”
The second claimant in the case, who was asked for seven years of digital data after telling police she had been raped by a stranger, said: “Infuriatingly, the police and CPS have repeatedly said to the press that they only pursue reasonable lines of enquiry. This is untrue. I hope now that other women won’t be subjected to these unlawful requests.”
In 2018 the Guardian revealed victims faced a postcode lottery around disclosure, with some police forces demanding almost unfettered access to highly personal records from rape complainants before pressing ahead with their cases. The following year the introduction of a new national digital consent form designed to reassure victims about how evidence on their mobile phones might be used inadvertently triggered further suspicions about police access to personal digital records.
The decision to scrap the national consent form comes after an 18-month investigation by the information commissioner’s office (ICO) on “digital data extraction” found that police forces were not giving enough consideration to “necessity, proportionality and collateral intrusion”.
Claire Waxman, London’s victims’ commissioner, called on the police and CPS to implement the ICO’s recommendation of introducing a code of practice to prevent excessive and disproportionate requests for data. “This deters rape victims from pursuing the justice they deserve, and leaves them traumatised and lacking trust in our justice system,” she said.
Further pressure was put on the police and the CPS when a court of appeal judgment – known as the Bater-James judgment – laid out guidelines for officers and prosecutors on how to be lawful and proportionate when asking complainants of rape and sexual assault to disclose data.
Silkie Carlo, the director of Big Brother Watch, said: “This U-turn on digital strip searches is a huge success for our groups, the two women who bravely took on this legal challenge, and the thousands of people who signed our petition.”
In a letter seen by the Guardian, the NPCC told all chiefs of police the forms would be withdrawn from use and replaced by 13 August 2020 – after a consultation with stakeholders and the ICO.
Timothy De Meyer, the NPCC lead for disclosure, said police and prosecutors had a duty to disclose any undermining material, but added that no victim should feel discouraged from reporting a crime. “Searches of digital devices should not be automatic and will happen only when the investigating officer or prosecutor considers there to be a need to access information to pursue a reasonable line of enquiry,” he said.
Harriet Wistrich, the director of the Centre for Women’s Justice, welcomed the withdrawal of the forms but said they should never have been used. “Their effect has been to delay rape cases and deter many victims from coming forward or continuing with their cases,” she said. “We will work with the defendants to ensure something fair and proportionate is put in its place.”
After a two-and-a-half-year investigation into my sexual assault case, which had witnesses and a potential second victim, the police told me the CPS was going to drop my case if I didn’t give them a download of my phone. When I asked them what was the reasonable line of inquiry, they told me that I could be lying. There could be something that discredits me on there. I could be hiding something. And to me, that’s not reasonable. I was asked why I was concerned, but actually it’s totally rational to fear giving your phone over to the police. I think most people would not want to give the contents of their phone to their mother, let alone the government or the person who attacked them who may, because of rules around disclosure, get access to it. When I refused my case was immediately dropped.
The CPS turned its back on me and treated me as a suspect – they made it so clear that I was alone and I was powerless. That anyone can rape me with impunity unless I submit to the court’s illegal demands.
And it became clear to me that I needed to work to change that, because it can’t go on. I had my power taken away from me from the assault, I had my power taken away from me from the criminal justice system. I was left in a really bad place. There were times, you know, I didn’t want to be here anymore. But taking up this case, working with the Centre for Women’s Justice, it’s been so important for my mental wellbeing. I feel like, for the first time in a while, I’m coming to terms with everything that happened to me. I want to help other people who have been through this – rehashing everything can be draining, but helping others has given me a purpose and made me feel that at least all of that pain happened for a reason.
I think we really need to start looking at what trauma does and how it can make victims behave. I think we need to look at misogyny in courts. I’d like to see the police and the CPS following the law and giving victims the same legal protections they give defendants. But also huge cuts to the criminal justice system has meant that we just can’t afford to prosecute crime anymore. I think the police, the CPS and the government need to take a hard look in the mirror and decide that rape is a crime worth prosecuting, that prosecuting it is important for public health and safety because it is one of the most vile crimes that exists.