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New victim privacy safeguards come into force

Woman appearing besides lots of ones and zeroes representing data.

A new law standardising how and when the police can lawfully extract information from electronic devices takes effect.

A new code of practice for powers included in the Police, Crime, Sentencing and Courts (PCSC) Act comes into force today (8 November), which will see new obligations on police to protect the privacy of victims.

The code will ensure that powers to request information from victims’ phones and devices are correctly used by the police. It will also ensure that all victims get the same high standards of protection.

This follows extensive work by the Office of the Victims’ Commissioner, which worked closely with the government to develop these safeguards.

Under the PCSC Act, victims’ mobile phone data will only be requested where a police officer reasonably believes that information stored on the electronic device is relevant to the investigation. The Bill’s Code of Practice further specifies that requesting any such material must only be requested if it is ‘strictly necessary’ in pursuit of that reasonable line of inquiry.

The newly implemented checks on police powers will make it illegal for police to place “undue pressure” on a victim to agree to their phone being searched. Victims must be told what information is being sought and what “reasonable” line of inquiry officers are pursuing so that they can provide informed consent.

Victims must be informed that declining to consent to hand over their phones will not automatically lead to a police investigation being dropped. In the past, many rape victims have felt compelled to hand over their devices and bow to unreasonable data download demands in order for the investigation to proceed.

The introduction of the code of practice follows a 9-week public consultation, in which the Victims’ Commissioner submitted a detailed response on how the code of practice could best protect victims. Many of these recommendations were adopted and the code of practice is strengthened as a result.

Campaigners are also pushing for the government to introduce similar restrictions on the use of third-party materials in rape investigations. These materials, which can include lifelong medical, school and social services records or therapy and counselling notes, are frequently sought from rape complainants. This exercise often appears to be more about undermining the victim’s credibility as a witness than pursuing a ‘reasonable line of enquiry’. Campaigners are calling for this to be addressed in the upcoming Victims’ Bill.

For rapes recorded in the year ending 31st March 2022, 42% of victims ended up withdrawing their support. 2019 analysis by the Victims’ Commissioner found that one in five victims withdrew complaints, at least in part, due to disclosure and privacy concerns. The Victims’ Commissioner’s 2020 survey of rape complainants also showed that, for some, scrutiny of their personal lives was a consideration in their decision not to report.