Victims of rape are currently being forced to choose between justice and their right to a private life. The Policing Bill is an opportunity for the government to fix this.
Summary
- Victims of rape currently face pressure to submit their phones to police.
- The Policing Bill would give police and prosecutors wholesale access to victim data.
- The Victims Commissioner has developed comprehensive amendments to the Bill to protect victims’ privacy.
In a significant breakthrough for victims, the Victims’ Commissioner has won significant concessions from government on the issue of digital disclosure in rape investigations. The Victims’ Commissioner’s amendments, which have been accepted by the government, will protect rape victims from over-intrusive and excessive police requests for personal mobile phone data.
However, there remain ongoing concerns around the issue of what are termed ‘third-party materials’. Rape victims are facing unjustified demands for personal information held by third-parties (medical, education, social services, therapeutic records etc.) and cases are frequently dropped if victims do not sign over their information. The impact of these requests can be devastating – undermining victims’ confidence and can be a direct factor in victims withdrawing support for the complaint.
The only way to change practice and to protect rape victims is to legislate.
Background
The current situation
It has become routine for rape complainants to be asked by police to hand over excessive personal information. Requests can be in the form of both digital data (from personal devices, such as mobile phones) and ‘third party material’ (official records kept by others, including medical and school records).
These requests are often disproportionate to the investigation and refusal of these demands frequently leads to cases being dropped by prosecutors. This is highly troubling for victims, has a chilling effect on their confidence in reporting crimes, and may impact victim attrition.
Currently, the police can access, extract and analyse a victim’s mobile phone or other digital device and all of the information on it without any restrictions, safeguards or oversight. These searches are disproportionate by default, extending far beyond the collection of specified pieces of evidence.
Provisions in the Bill
Posposals in the PCSC Bill are set to worsen this situation.
The Police Crime Sentencing and Courts Bill affords police and prosecutors wide-ranging powers to wholesale access of victims’ personal data, with the result that victims of rape are being forced to choose between justice and their right to a private life.
The provisions run in the complete opposite direction to the government’s end-to-end rape review and its commitments to victims of rape. If passed in its current state, these clauses are likely to only worsen the situation for victims.
The power in the bill is wide-ranging and will effectively provide a legal basis for intrusive and excessive access to personal information, with any safeguards for victims of crime relegated to guidance.
The Victims’ Commissioner is pushing for the Bill to be amended to ensure victims are protected from undue invasions of their privacy.
Latest updates
In anticipation of the PCSC Bill entering Report Stage in the House of Lords on 8 December, the Victims’ Commissioner has published an updated briefing paper for peers. See “House of Lords Report Stage briefing document (December 2021)”
The Victims’ Commissioner wrote to Minister Atkins, outlining her concerns that the government was not minded to legislate on the issue of third-party materials: “I am extremely worried that work in this area seems to be confined to non-legislative options and I am clear that the only way to change practice is to legislate. See “Letter to Victoria Atkins MP on third-party material”.
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. See the full press notice.
Briefing documents
Third-party materials
The Victims’ Commissioner is pushing for legal constraints on the indiscriminate use of third-party materials in rape investigations.
Safeguards secured to guarantee victims protections against over-intrusive and excessive police requests for personal mobile phone data need to be replicated for requests for third-party material, such as victims’ medical notes, school reports and therapy notes.
The Victims’ Commissioner has prepared detailed briefing documents on the issue and proposed amendments:
- House of Lords Report Stage briefing document (December 2021).
- Letter to Victoria Atkins MP on third-party material (1 December 2021)
- Third-party material briefing document (concise explainer – 3 pages).
- Third-party material briefing document (comprehensive briefing – 13 pages, October 2021).
Digital extraction
Victims of rape are being forced to choose between justice and their right to a private life. Rape victims are facing unjustified demands for downloads of personal data and cases are frequently dropped if victims do not sign over their data.
The PCSC Bill affords police and the Crown Prosecution Service (CPS) through the police wide-ranging powers to wholesale access of victim data. Any safeguards for victims are relegated to guidance, which current practice demonstrates is largely ignored.
The Victims’ Commissioner has prepared detailed briefing documents on the issue and proposed amendments: