When the Director of Public Prosecutions and the police launch this form over a year ago, they were warned by many rape charities, by the Association of Police and Crime Commissioners and by me that it was not a lawful basis on which to require disclosure of rape complainants’ mobile phone contents.
Before that, different police forces were demanding different levels of access to mobile phone contents. These were only ever sought from victims of rape and sexual violence and abuse. This form was intended to even out the demands, but instead, it levelled up, so that more data was required by some forces who before that had asked for less.
This led to hundreds of rape complainants being told by police to sign consent usually to the whole of their mobile phone contents, including messages from other people to them, much if not all of it almost by definition irrelevant to the facts of a rape case.
The CPS own Inspectorate found that in 40% of cases which prosecutor sent to police for more data, the requests were “disproportionate and intrusive“. Complainants were told if they didn’t sign, it was likely that the case could not proceed. Not only did they therefore have to choose between disclosing the entirety of their personal lives and justice, but many were discouraged by the obvious implication that these authorities were interested in investigating them over investigating the defendant.
Now, after the Information Commissioner has directed the forms withdrawal and the Equality and Human Rights Commission has funded two complainants to bring an action against CPS and the police, the form has finally been withdrawn.
This form should never have been used. What do police and CPS propose to do for the innumerable victims Who have been driven away from prosecuting by its over intrusive use? Many good rape cases may have fallen because of the form.
In other cases, confidential material, probably much of it protected under Article 8 of the European Convention on Human Rights, has been processed when it should not of been. Both groups of complainant deserve acknowledgement and even recompense.
The CPS needs to review every case it has dropped under the circumstances and to reconsider its prosecution.
There is now caselaw making clear a much more cautious approach needs to be used by the police and CPS to accessing the contents of rape complainant’s mobile phones. The Court of Appeal has made very clear that there needs to be a clear understanding that there are hurdles to be jumped before its appropriate even to seek access to confidential material.
The information Commissioner suggested a multi-agency group to agree a legal basis and an appropriate means of accessing only that material which is needed in pursuit of a reasonable line of enquiry. It is urgent that that multi agency group is now convened. This needs to be the start of a change of attitude to rape cases.