The Victims’ Commissioner is pushing for legal constraints on the indiscriminate use of third-party materials in rape investigations.
A full briefing document is available to download.
Victims are being forced to choose between justice and their right to a private life.
Victims of rape and serious sexual assault frequently face unjustified demands by police and prosecutors for personal data held by third parties, such as lifelong medical, school and social services records or therapy and counselling notes.
Campaigners say these materials are frequently sought from rape complainants and often appear to be more about undermining the victim’s credibility as a witness than pursuing a ‘reasonable line of enquiry’.
Cases are frequently dropped if victims do not sign over their information. and the impact of these requests can be devastating – undermining victims’ confidence and can be a direct factor in victims withdrawing support for the complaint.
What needs to change
The Victims’ Commissioner is calling for three complementary measures to force a much-needed culture change within police and prosecutors, and, in turn, improve the victim experience of the criminal justice system.
- Legislate to limit police’s requests for information from third parties to what is strictly necessary and proportionate in pursuit of a reasonable line of inquiry. In addition, officers should only request disclosure of material if they believe it will pass the disclosure test. In other words, it will undermine the prosecution or assist the defence.
- The government must ensure that victims can receive independent legal advice and representation whenever Article 8 rights are engaged. Victims should also be given this opportunity in order to assist with ‘victims right to review’ applications.
- As per the Australian model, therapy notes/records for victims of sexual violence must be privileged. Under this model, only a judge can release such records upon request. Only after the matter has been presented to the court, in writing, and with independent legal advice can a victim consent to the release of protected confidences (waive privileges). This importantly protects both the privacy rights of the victim and the right to a fair trial.
Download the briefing document
The Victims’ Commissioner has prepared a comprehensive briefing document to download. For an accessible version, please email victims.commissioner@victimscommissioner.org.uk.