Handing over mobile phone data in rape prosecutions
Updated 13 May 2019 with Q&A
There is widespread media coverage today about how police and prosecutors use information from the mobile phones of people who report rape or other sexual offences.
It is important to correct some serious inaccuracies in the coverage and online, which could deter victims coming forward to report crimes. Sexual offences can have a devastating impact and victims must have confidence that if they report a crime, it will be handled sensitively and fairly by police and prosecutors.
It is not true that complainants in rape cases must automatically hand over personal data on their digital devices or run the risk of the prosecution being dropped. Mobile phone data, or social media activity, will only be considered by the police when relevant to an individual case.
However, for an investigation to proceed and be fair for both complainant and suspect, all reasonable lines of enquiry must be pursued. This is not new and the policy has not changed - mobile devices will not be needed in every case - but when they are, there is explicit guidance that only material relevant to a particular offence may be pursued, to minimise unnecessary intrusion. This applies to all offences and is not restricted to allegations of sexual offending.
It has also been wrongly suggested that phone data will be handed over indiscriminately to lawyers representing the suspect, so that it can be used unfairly to discredit complainants. This is absolutely not the case, and there is clear legal guidance in place to ensure that private information which does not assist the defence or undermine the prosecution is not disclosed to the defence.
Even where material must be disclosed, there are further legal safeguards before it can be used in the course of any trial.
The new consent forms being rolled out by police are intended to achieve a consistency of approach nationally, so complainants are not treated differently in different forces. They replace those which were already been used in some forces. They are designed to bring clarity around the process and to give victims an understanding of how their data might be used so they can have confidence to come forward and support a prosecution.
- The NPCC have published the new consent form on their website. You can download and read it here.
- These forms are not specifically for sexual assault complainants - they are used in any investigation where digital devices may be examined
- The forensic tools used by many forces mean that they will extract more data than is required for examination. We are clear this does not mean all data should be examined
- The form makes clear investigators should respect individual rights to privacy and not go beyond reasonable lines of enquiry. They set out what they consider reasonable in the context of the allegation and why. These requests must not be purely speculative
- However, in circumstances when it is necessary - both for gathering evidence and meeting our disclosure obligations - we hope the clearer information we have provided will help complainants give free, specific and informed consent
- Strong safeguards are in place to prevent complainants being cross-examined on irrelevant sexual history. Section 41 of the Youth Justice and Criminal Evidence Act 1999 places significant restrictions on the admissibility of questions at court relating to a complainant’s sexual history which includes material gathered from digital devices
- Our prosecutors will continue to robustly oppose defence applications to adduce sexual history evidence whenever it is appropriate to do so
- We have launched a new training course covering the operation of the Section 41 provisions which is mandatory for all CPS rape and serious sexual offences (RASSO) prosecutors and advocates and available to members of the external Bar. In addition we have launched updated and improved legal guidance for prosecutors
- We continue to work with victim groups and the Information Comissioner's Office to ensure our approach offers the necessary balance between the requirement for reasonable lines of inquiry and the complainant’s right to privacy.
Will all those who report a sexual offence or other crime have their digital devices examined?
No. Mobile telephones or other digital devices should not be examined as a matter of course and this is very clear in our guidance to police and to prosecutors. They should only be examined in investigations where data on the device could form a reasonable line of enquiry.
Are sexual offence complainants being treated differently?
No. This approach of seeking consent for digital examination applies to all crimes but will only be used where necessary and proportionate. It will not be used in all sexual offences cases.
It will most likely be used in investigations where the complainant and suspect are known to each other and past communication is a reasonable line of enquiry. Sexual offences often involve complainants and suspects who have a prior relationship with contested claims meaning digital examination is more likely in these investigations than in many other crimes. It will also be used in other cases where digital evidence may be crucial, such as malicious communications, stalking and harassment and violent crime including homicides.
Why does this focus on the devices of complainants and not suspects?
When a crime is investigated, police will regularly seize devices of those accused, and will seek to obtain information related to a reasonable line of enquiry using this data. This is done using police powers and suspects are not required to consent. Coercive police powers are clearly not appropriate for use against complainants and access to their devices should be on the basis of specific, free and informed consent.
What happens to the information downloaded?
The investigator identifies material from the phone which is relevant to the investigation.
From that relevant material, only that which is to be used in evidence because it supports the prosecution case or material which undermines the prosecution case or assists the case for the defence (the test for disclosure) will be shared with the defence.
Even once this material has been served or disclosed, there are strict legal safeguards in the trial process that prevent the complainant being cross examined about any previous sexual behaviour other than with the leave of the court. Information that is not relevant will not be used but may be held until the case has concluded.
Why is more information downloaded than required for reasonable lines of enquiry?
Currently the forensic tools used by many forces mean that they will extract more data than is required for examination. However, we are clear this does not mean all data should be examined. We are piloting new technology and hope in the future we will be able to only extract the relevant information.
Will cases be dropped if consent is refused?
No. Decisions about how best to proceed will be taken on a case-by-case basis based on the circumstances. Complainants and witnesses are given information to enable them to make an informed decision. If consent is not given, other reasonable lines of enquiry will be considered. However, we must also inform them that without the ability to test a reasonable line of enquiry we may not be able to proceed with the case.
How was consent previously sought?
Police forces had different approaches to seeking consent, including seizing devices using police powers. The new national form seeks to bring consistency across England and Wales.
What safeguards are in place to prevent victims’ information being inappropriately shared in court?
Police will only investigate what could form a reasonable line of enquiry. Police and prosecutors have been given clear guidance that they should only seek access to personal data when necessary and proportionate.
Section 41 of the Youth Justice and Criminal Evidence Act 1999 places restrictions on evidence or questions about complainant's sexual history in court. Judges and prosecutors are the gatekeepers to ensuring this is upheld.