12:22, June 17 55 0 theguardian.com

2020-06-17 12:22:03
Police in England and Wales dropping rape inquiries when victims refuse to hand in phones

Rape investigations are being systematically dropped after victims refuse to hand over their mobile phones for analysis, an investigation has found.

Freedom of information requests reveal that about one in five complainants decline to submit to what has been termed a “digital strip search”. In every case where a complainant refused to allow officers to download information the case was closed.

Of all police requests for mobile phones recorded in the survey, 19% involved those belonging to children. Some victims consider the police demands to be intrusive.

The research, by the campaign group Big Brother Watch, is based on 390 rape cases that were handled by police in 2018-19. Twenty-two forces in England and Wales were asked to provide detailed anonymised information on the outcomes of the first 10 or 20 rape investigations they dealt with that year.

In 22% of those cases, involving 84 complainants, officers made a formal request for access to digital records. In 100% of the cases where the complainant subsequently refused to hand over their mobile, officers discontinued their inquiry; that subset related to 14 individuals.

Although a small sample, the apparently uniform police response suggests officers are dropping cases where digital evidence is deemed to be relevant but is not made available.

The police digital consent form states that if access to data is denied then “it may not be possible for the investigation or prosecution to continue”. It also says that if a prosecution continues, the defence will be informed of the complainant’s refusal to hand over material and an order requiring disclosure may be made.

A damning report by HM Crown Prosecution Service Inspectorate last December said that both police and prosecutors were severely under-resourced. It also criticised the large number of intrusive, unnecessary demands for complainants’ mobile phones and medical records.

Last year, figures showed that rape charges, prosecutions and convictions in England and Wales fell to their lowest levels in more than a decade despite rises in the number of rapes reported to police.

Big Brother Watch argues that digital searches are “highly likely to infringe victims’ data protection and privacy rights” and are “causing major delays to investigations”.

Digital processing notices, which complainants are asked to sign, were rolled out across police forces in England and Wales from April 2019. The forms are used to notify victims of crime, most commonly victims of sexual offences, that police will download data from their phones.

Data extracted may include all of the complainants’ texts, messaging apps, emails, call records, photos, videos, social media messages and deleted data, which can all be retained by police.

The volume of material involved in each case can be enormous. Campaigners have estimated that information routinely sought from a victim in rape investigations amounts to 30,000 pages.

Two rape complainants, represented by the Centre for Women’s Justice, launched a judicial review of the police policy on digital processing last year. The case has been paused pending an investigation into police digital extractions by the Information Commissioner’s Office.

Big Brother Watch’s survey also revealed that women are disproportionately asked to hand in their phones: 95% of the police requests were to women although they make up 88% of rape complainants.

Vera Baird QC, the victims’ commissioner for England and Wales, and 10 human rights organisations – including Big Brother Watch, Amnesty International, the Centre for Women’s Justice, End Violence Against Women and Justice – have urged police to revise their approach to digital evidence.

Silkie Carlo, the director of Big Brother Watch, said: “Our investigation shows that rape victims are being systematically denied justice if they defend their data rights. Victims of no other crime are expected to surrender their digital lives to such speculation and scrutiny.

“Victims reporting rape to the police want nothing more than to advance investigations and to consent to lawful and proportionate evidence collection. But the police insist on an all or nothing approach in which they have to either put their private lives on trial or see rapists walk free.”

Harriet Wistrich, the director of the Centre for Women’s Justice, said: “The evidence… confirms our own evidence from rape survivors that, contrary to a statement put out by the CPS last year, a refusal to hand over a digital device invariably leads to the case being dropped.”

In September, figures from Rape Crisis England and Wales showed that as many as eight in 10 rape complainants in some police force areas are being asked to disclose personal data from their phones during investigations.

In 2018, the Guardian revealed that police were demanding almost unfettered access to highly personal records and data from potential rape victims before pressing ahead with their cases.

A spokesperson for the National Police Chiefs’ Council said: “The national digital evidence consent form was introduced to bring consistency to the way forces were obtaining and recording the consent of victims and witnesses in providing their digital device for examination.

“Police have a duty to pursue all reasonable lines of enquiry in every investigation and to meet their disclosure obligations under the Criminal Procedure and Investigations Act. Evidence is required by prosecutors to ensure a strong case can go to court.”

Case study

Olivia (not her real name) reported being drugged and attacked by strangers. Police asked for seven years of phone data, and her case was dropped after she refused. “My phone documents many of the most personal moments in my life and the thought of strangers combing through it, to try to use it against me, makes me feel like I’m being violated once again,” she said.

“This isn’t about trying to stop the police from putting together the facts of the case. This isn’t about objecting to the police downloading information from the time that it happened. This is about objecting to the police downloading seven years of information that pre-dates the event and therefore has zero relevance.

“I kept trying to ask them if the data that they took could be restricted just to the period of time of relevance to what actually happened, and they said no.

“They told me that if I didn’t consent, they may just drop the case and may not proceed with it. They have now dropped the case citing one of the reasons being that I have not handed over seven years of my personal life which is of complete and utter irrelevance to that one night.

“I am willing to hand over the information that is relevant to what happened – I’m not willing to hand over seven years’ worth of information that is totally and utterly irrelevant.”

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