Victims’ commissioner Vera Baird criticises policy of requesting personal material
The Crown Prosecution Service and police are requesting far too much – and often irrelevant – personal material in controversial “digital consent forms” given to those reporting rapes, according to Vera Baird QC, the new victims’ commissioner.
Complainants are not being “unreasonable” if they resist intrusive demands that breach their privacy, the former Labour MP and solicitor general said. The police have threatened to drop investigations if complainants do not cooperate with such requests.
In some cases there has been a “wholly disproportionate” insistence on handing over extensive private details even when a sexual assault involved an attack by a complete stranger, Baird confirmed.
The row over consent forms comes as the criminal justice system is struggling to cope with the volume of evidence generated by mobile phones and digital technology. There has been a 173% rise over the past four years in the number of rapes reported to police in England and Wales while the number of cases going to court has fallen by 44%.
A meeting scheduled for last Friday for Baird and other victims’ representatives to meet senior officers and the CPS to discuss the forms was cancelled at short notice. The CPS said it was because victims’ groups have launched a judicial review of its prosecution policy.
Baird said: “This [digital download policy] is wholly disproportionate. Practice both before and since this form was published has been to demand this material and abandon cases if there is hesitation. This is so even where the allegation is that the complainant was raped by a stranger and there will be no relevant material.”
In an interview with the Guardian, Baird said investigators often ask for access to material such as school notes, mental health reports or counselling records. “I don’t think rape complaints are at all unreasonable” in resisting such demands, she said. In investigations, the CPS will come back to the police after receiving a file and say they “want all the digital download”.
In one “horror story” she recalled from the north-east, a young woman was accused of being a liar during a sexual exploitation trial because lawyers had found a letter she wrote when she was a pupil in which she forged her mother’s signature to get a day off school.
Baird said she was encouraged by approaches from technology companies offering less intrusive versions of digital downloads. “I have had two or three suppliers say you can choose what to download and … use technology more sensitively. There’s no reason why they shouldn’t download material in the presence of the complainant so that she can see what they are taking and be satisfied.”
The rapid increase of what is known in police terminology as “outcome 16” – where a suspect is identified but the victim does not support further action – also worries Baird. Any inquiry is an “interactive process”, she said, and it can be easy for police to discourage complainants.
“If, when being interviewed, there was a raised eyebrow or a look askance, the complainant will think [officers] are not taking it properly. It may be people just won’t be able to face court. I’m not saying people are being persuaded not to go on but it’s an interactive process and some people will be very affected by the way the police behave.”
A CPS spokesperson said: “There are strict rules which mean that digital data should only be accessed when it forms a reasonable line of inquiry, and private information not connected to the case must not be shared with the defence or shown in court.
“Furthermore, witnesses and complainants should not be discouraged or prevented from seeking therapy and counselling before or during the trial process. Our guidance makes it clear that the best interests of complainants are paramount in their decision about whether and in what form therapeutic help is given.
“Balancing privacy with a thorough investigation is in everyone’s interests to ensure a fair trial.”
Complainants in rape cases need more support from independent advisers who can help guide them through the criminal justice process, said Baird.
She also believes anonymity, granted to all victims in sexual assault cases, could be extended to other crimes. “There’s a lot more offences where anonymity would help more people come forward,” she suggested. “It has to be considered very carefully so that it’s not putting the defence at a disadvantage.”
Of her new role as victims’ commissioner, Baird said: “It’s very exciting. It’s totally under-resourced. It’s very challenging. I’m very committed to making things better.” Her office in central London has only five and a half full-time equivalent members of staff.
She wants to raise the public profile of her office. “We will be asking the government for more powers so that we can report to parliament rather than the Ministry of Justice,” she said. “If we report to the MoJ and they they ask how the Victims’ Code is working they are marking their own homework.”
Other priorities include standardising levels of support given to victims across England and Wales and making the Victims’ Code, which currently has 189 recommendations, “shorter and crisper”.
Baird admitted: “It’s like War and Peace. We need to focus on rights that really matter: keeping victims up to date, giving them quality information, ensuring they have support, treating them with dignity and respect and not letting them drift.”
Improving all those features, she believes, would help reduce the worrying statistic that 46% of people who have given evidence say they would never do so again.
Baird is interested in the cycle of violence through which victims who endure sustained provocation can be transformed into assailants. As a barrister, she represented Emma Humphreys, a young woman who eventually stabbed to death an abusive boyfriend and pimp.
She suspects similar mechanisms may be involved in the surge in knife crime and will produce a report. “Some of the people who have struck out have been attacked themselves in the past. It’s very well known that if you look at women [in prison] around 60% have suffered domestic abuse.
“A lot of youth crime is like that. It’s a reaction to something adverse that happened. You need to look at the element of victimisation … If people suffer violence at home then those adverse experiences have an impact on the development of the child.”