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New privacy safeguards: rape victims’ mobile phone data to be protected from unjustified intrusion

Published:
Woman appearing besides lots of ones and zeroes representing data.

The Government agrees to amend Police, Crime, Sentencing & Courts Bill to protect victim privacy, whilst ensuring fair trial rights.

  • The amendments place new checks on police powers to extract data from electronic devices and follows extensive work by the Victims’ Commissioner advocating on the issue.
  • Dame Vera calls for similar amendments to prevent unjustified police demands for personal data held by third parties, such as medical and social services records.
  • The government says it is “very alive to the issues around third-party material”, prompting hopes it will further amend the PCSC Bill.

In a major breakthrough for rape survivors, and prompted by continued calls from the Victims’ Commissioner, the government has agreed to amend the policing bill, guaranteeing rape victims safeguards against over intrusive and excessive police requests for personal mobile phone data in rape investigations.

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

The government’s amendments 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. Presently, many rape victims feel compelled to hand over their devices and bow to unreasonable data download demands in order for the investigation to remain active. The law change does not diminish in any way defendants’ rights to full disclosure of any material which might undermine the prosecution case or support the defence.

The government’s changes to the Bill follow months of close engagement between the Victims’ Commissioner and government Ministers, with support for the changes coming from leading police voices and the Information Commissioner. The National Police Chiefs Council were consulted on the changes and were content that the law as proposed gives them sufficient powers to investigate, whilst avoiding unnecessary infringement of the privacy rights of victims.

Dame Vera has also proposed similar amendments to limit unjustified police demands for personal information held by third parties, such as victims’ lifelong medical and social services records, school records and therapy notes. These have been tabled in the Lords and there are hopes the government will also back these changes.

When victims report sexual offences, their personal devices can be subject to extreme and indiscriminate data collection, in which highly personal and sensitive information, such as text messages and photos, are extracted. This material often has no relevance to the offence in question and campaigners say this data is extracted in an apparent search for material to discredit the victim before even beginning to investigate the accused. This only happens in sex offence cases and has been dubbed “digital strip search” by campaigners.

Victims have sometimes been told the case will be closed if they do not comply, leading to many victims withdrawing as they are uncomfortable handing over private data to authorities. For rapes recorded in the year ending 31st March 2021, 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.

As well as impacting victim attrition, it is also a factor for victims in whether to report in the first place. The Victims’ Commissioner’s 2020 survey of rape complainants showed that, for some, scrutiny of their personal lives was a consideration in their decision not to report.

The massive volume of data leading from indiscriminate searches means investigators must sift through sometimes thousands of items which can lead to extensive delays in processing sexual assault cases. The latest CPS figures indicate that the average time from receiving the case from the police to charging is 170.2 days, over four times as long as all crime timeframes.

Dame Vera Baird QC, the Victims’ Commissioner for England & Wales, said: “Victims of rape are currently faced with an impossible choice: the pursuit of justice or the protection of their privacy. It has become practically routine for rape complainants to face intrusive and excessive demands for personal data from their electronic devices, with no relevance to the investigation of the crime in question. Refusal of these demands frequently leads to cases being dropped by prosecutors. This has had a chilling effect on victim confidence and many victims are made to feel like they are the ones on trial, with their credibility repeatedly questioned and undermined.”

“I am grateful to the government for engaging with my office on this, heeding my concerns and those of others involved on the frontline in rape cases and for recognising that change was needed. These amendments will introduce vital safeguards for rape victims whilst protecting fair trial rights. It is crucial that victims are asked to agree to any strictly necessary download of their data, free from pressure or coercion, and that they fully understand what is being sought from them and the implications of providing such information.”

Unjustified police demands for access to material in the hands of third-party materials, such as lifelong medical or school records, therapy or counselling notes, in rape investigations are also within the Victim Commissioner’s sights. 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’.

Dame Vera Baird said: “Frontline practitioners tell me of people reporting historic sexual offences from the ‘70s and ‘80s being asked to hand over their current mobile phones; of victims raped in their thirties being required to consent to childhood social services records to be trawled. These speculative searches can have no relevance to the facts of the case and appear to be conducted as a credibility check on the complainant. This happens only in rape and sexual assault and in no other kind of case. Complainants need to be protected against these excessive demands in the same way the government has now agreed to protect them against excessive demands for digital data download.”

The Victims’ Commissioner’s proposed amendments to limit unwarranted police demands for personal information held by third parties are currently tabled in the House of Lords, by the Labour peer Lord Rosser, the Conservative Baroness Newlove, who is the former Victims’ Commissioner, and Lord Anderson, a leading QC and crossbench peer.

The proposed legal safeguards would require that material in the hands of third parties could only be requested by officers in pursuing a “reasonable line of inquiry” and if they suspect that there may be material there that the law requires them to disclose to the defence. There would need to be an audit trail to show when, how and why consent was given by the victim.

Baroness Williams of Trafford, Minister of State told the House of Lords on Wednesday 27 October that the amendments: “[Highlight] a very important issue around the proportionality of requests for third-party material relevant to a victim. This material can be highly sensitive—for example, medical records. We agree that such material should only ever be sought where there is a reasonable line of inquiry, but we are aware that this is not always the case. There are examples where such requests cannot be justified, and this has a detrimental impact on the confidence of victims. The Government wholeheartedly agree that there needs to be a consistent approach to ensure that requests for third-party material are made with the victim’s right to privacy in mind and to ensure that the victim is fully informed.”

EDITORS NOTES