10:34, September 25 163 0 theguardian.com

2018-09-25 10:34:06
Escalating police demands for rape victims' data spark privacy fears

Police are demanding almost unfettered access to highly personal records and data from potential rape victims before pressing ahead with their cases, the Guardian can reveal.

In some areas, complainants are being asked to disclose health, school and college records, counselling notes and all data from their electronic devices, documents obtained under freedom of information requests show.

In London, the Metropolitan police request access to social media, web browsing activity and content, instant messages, location data, emails, deleted data, images, videos, audio files, apps, contacts, documents, MMS and SMS messages – which can be kept for up to 100 years. The information provided can then be disclosed to the Crown Prosecution Service and the defence.

But in other parts of the UK no such information is required from complainants. The postcode lottery revealed by the documents has raised fears among campaigners that victims will be put off going to the police by the intrusion into their lives.

The national police lead on sexual offences has said forces are “massively struggling” to cope with the volume of digital data available in rape trials.

A Guardian investigation has found access to victims’ records in rape cases, often granted through documents known as Stafford statements, varies widely from one police force to another. In Merseyside, police can request access to educational notes, counselling notes and social services records, and to speak to a counsellor or teacher; in Gwent, no such information is requested.

Campaigners say victims are regularly advised that prosecutions will not be brought if they do not grant access to their personal data.

Vera Baird, the Association of Police and Crime Commissioners (APCC) victims lead, said: “It is only in rape and sexual assault cases that there is any such thing as a Stafford statement and a requirement for these records.

“It points to the utter irrelevance of a lot of this material gathered in Merseyside or the Met insofar as the prosecution authorities in other areas are concerned. There is no common understanding that this is important … If you can bring a rape prosecution without this stuff, then you shouldn’t be getting it in other places.

“It’s totally a fishing expedition. The focus shouldn’t be on the character of the complainant. That isn’t what it’s about. It’s about did it happen, not can you find some way of destroying her. You don’t set out to destroy the key witness by using all of this information in any other kind of case.”

Police and the CPS have come under increasing pressure to examine vast amounts of data following several high-profile rape trials that collapsed after the late disclosure of compromising material. But there are concerns the requests for wide-ranging records could breach victims’ privacy and result in unequal access to justice.

Assistant Commissioner Martin Hewitt, the NPCC lead for adult sexual offences, said current practice around the disclosure of digital material raised serious questions around proportionality and privacy. “Is something the complainant said to a friend prior to even meeting the defendant relevant? There are some real questions we collectively have to answer about how far we should be going.”

Hewitt called for a new system where all parties – police, prosecution and defence – would set the parameters of digital investigation as soon after an allegation is made as possible.

“For me the principle [of disclosure] is right, but if you think about when the legislation was written, no one even had pagers. There is no conceivable way legislators could have imagined that in 2018 we would be carrying a phone with thousands of photographs, or tens of thousands of messages … The police are absolutely massively struggling to cope. No one can cope with it, it’s simply not possible.”

Asked if he thought the so-called disclosure crisis had injected more caution into the system, he said: “I think it is inevitable that when we have had those high-profile collapses of cases, particularly after the disclosure issues, the prosecution are going to become more cautious. They are going to want to ensure there is very strong evidence to take a case through to court.”

The APCC expressed concern in February that there may be inappropriate disclosure of complainants’ intimate counselling notes, social services, health and education reports in sexual offence cases.

Rape Crisis said the “extraordinary level” of data being seized was causing increased stress and anxiety among survivors.

“The current culture of disclosure is deeply concerning and has the potential to cause real harm,” said Katie Russell of the charity. “Complainants are routinely being required to give access to a vast amount of personal data and there is currently no clarity whatsoever about how its relevance will be determined, who will see it, or where or how long it will be stored.”

Rape Crisis said it had seen examples of school records scrutinised, and records examined over a three-year period. If complainants were reluctant to hand over data they were seen as difficult and usually advised that their cases would be unlikely to proceed, Russell said.

“On the other hand, we know suspects have much more leeway to refuse to disclose their personal data and in some cases that their phones aren’t even requested,” she said. “Victims are all too often left with the impression it is them and their credibility that is under investigation, not the person actually accused of a serious violent crime.”

Fay Maxted, the chief executive of the Survivors Trust, said the collapse of high-profile cases because of late disclosure of digital material had put huge pressure on a system already struggling to cope with massive funding cuts to the police and CPS.

“It is not uncommon for the police to have to go through 10,000 texts – have they got the time to do that, and arguably, is it relevant? We are regularly seeing complainants told that if you are not willing to sign over all that material your case won’t go forward.”