An image of a woman surrounded by 1s and 0s, representing data.
Rape victims still face pressure to hand over their phones to police and prosecutors.

The PCSC Bill is running in the opposite direction to the Rape Review and likely to make things worse.

Dame Vera Baird, Victims’ Commissioner at the PCSC BIll Committee, 20 May 2021

Victims of rape are faced with an impossible choice – the pursuit of justice or the protection of their privacy.

Provisions within the Policing Bill will give police and prosecutors wide-ranging powers to wholesale access of victim data.

In consultation with others, the Victims’ Commissioner has developed comprehensive amendments to the Bill.

Read on for more information and download our comprehensive briefing documents.

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.

These 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.

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.

Data requests from police and prosecutors are frequently disproportionate to the investigation and have had a chilling effect on victim confidence. Refusal of these demands frequently leads to cases being dropped (‘no further actioned’).

But guidance and case law prohibit the download of an individual’s entire personal history; it is not relevant to a reasonable line of enquiry and is not strictly necessary or proportionate (the ‘tests’ laid down in ‘law’).

Existing case law, legislation and guidance make clear that an officer is only entitled to ask for digital data if s/he believes that it is material relevant to a reasonable line of enquiry. In the case of Bater-James, judges were clear that this means no speculative searches, and data protection legislation only allows for the extraction of specific information insofar as it is strictly necessary and proportionate to the investigation. The officer must also be satisfied that there are no less intrusive means of getting the information.

Whilst data protection legislation allows police to access material under the strictly necessary for law enforcement ‘gateway’, it is vital that victims are asked to agree to the download free of pressure or coercion and that they fully understand what is being sought from them and the implications of providing information.

Briefings: Data Extraction Clauses

PCSC Briefing: Data Extraction Clauses

A comprehensive briefing on the data extraction power clauses (14 pages)

Easy Read: Data Extraction Clauses

A condensed and accessible briefing on the data extraction power clauses (3 pages)

Briefings: Third-Party Materials

PCSC Briefing: Third-Party Material

A comprehensive briefing on intrusive demands for Third-Party Material in rape cases (13 pages)

Easy Read: Third-Party Material

A condensed and accessible briefing on intrusive demands for Third-Party Material in rape cases (3 pages)