19:06, October 16 66 0 theguardian.com

2018-10-16 19:06:07
Data gathering 'may deny rape victims access to justice'

The intrusive gathering of data about possible rape victims is unlawful and risks preventing them coming forward, according to London’s victims’ commissioner.

Claire Waxman from the Mayor’s Office for Policing and Crime (Mopac) has written to the Information Commissioner’s Office (ICO) saying victims were routinely being told their cases would be dropped unless they signed consent forms that gave defence lawyers and their alleged attacker access to intimate details of their lives that could be revealed in court.

“Victims are very concerned that they are being asked for so much sensitive material – not only their phones, but also past medical history, their social services records and more,” said Waxman.

“Victims often don’t feel it useful, relevant or reasonable, but have to give consent it if they want to access justice. The justice process has just lot a grip on this; on the ground it is getting worse and worse.”

Last month the Guardian revealed that police were demanding almost unfettered access to records and data from possible rape victims including in some cases health, school and college records and counselling notes.

In London, the Metropolitan police ask for 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.

Women are routinely asked to sign consent forms, known as Stafford statements, to permit access to the data. But Waxman argued that because women were told their case would not proceed without the consent, they were left with little real choice, which may make the process unlawful under new data protection laws.

The letter, seen by the Guardian, said that while the consent forms provided the “lawful basis” for the access, “they are falling way short of meeting the high standard” set under the General Data Protection Regulation (GDPR) rules.

Waxman has heard from a series of women whose cases give a worrying insight into data collection. They include:

  • A woman who had reported pre-mobile phone era historic abuse whose case was dropped when she would not consent to handing over her current phone.

  • A woman who was questioned by police on private conversations recorded accidentally by her phone during a period of 72 hours.

  • A woman who reported rape by a stranger whose case was dropped because she would not consent to her data being handed to the Crown Prosecution Service.

In the letter, Waxman said there was a stark disparity between the rights given to defendants and victims where “police rely on Pace [Police and Criminal Evidence Act] to extract the data from the phones of suspects, which sets out clear, transparent and stringent parameters that must be adhered to”.

She added: “If we are putting victims on trial – and by putting them through this investigatory process let’s be honest we are – then they should be afforded the same rights under a free trial and they are not.”

Police and the CPS have come under increasing pressure to examine vast amounts of data after several high-profile rape trials collapsed the end of last years and the beginning of this year when text and social media exchanges belatedly emerged that undermined complainants’ accounts.

But the current system of police trawling through tens of thousands of messages and photographs was “unrealistic and unworkable” and was resulting in huge delays to cases being brought to trial, said Waxman. “I think in light of what happened early this year the CPS had a blanket idea of ‘let’s get all information possible’, and that is completely the wrong way around,” she said.

Waxman added: “We are in a situation where the system is completely blocked, and nothing is getting through. That is not a justice process that is working – we are in a critical situation and it has to be tackled.”

An ICO spokesperson said: “We are aware of the concerns about the processing of victims’ personal information and are in the early stages of considering the issues.”

‘I felt like I was under surveillance’

Anna* made a rape complaint to police in 2016 after discovering a man who she said raped her when she was unconscious six years earlier had been suspended from his company following a similar complaint.

Having provided evidence to police, her case was to be held alongside the other woman’s. But when the trial opened in January this year, the day another trial collapsed because of the late disclosure of digital evidence, her phone was seized and the trial delayed. “The way police spoke to me, I felt ambushed and felt like I was a perpetrator and not a complainant,” she said.

Anna signed a statement that enabled police to look through all her digital data and medical records and hand over this information to the CPS, which would make it accessible to the defence. She discovered that after recording a conversation for work, her phone had continued recording her life for the next 72 hours, which was then analysed by police officers without sexual offence training. “It was a fishing expedition, clear and simple,” she said. “I felt like I was under surveillance.”

She was told by the CPS that her case was being dropped because of WhatsApp messages between her and her partner which they said could be perceived as evidence that she had been discussing the case and could have been “coached”. The trial went ahead with only one complainant, and the defendant was found not guilty. “I’m hoping he won’t do it again, but he’s now free,” she said. “He’s not in prison, so who knows what he might do?”

*Anna’s name has been changed to protect her identity

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