06:33, June 18 202 0 theguardian.com

2020-06-18 06:33:04
Police take too much data from victims' phones, says watchdog

Police are extracting “excessive amounts of personal data” from the mobile phones of victims and witnesses during investigations and are in danger of discouraging the public from reporting crime, the Information Commissioner’s Office (ICO) has warned.

In a critical study of data extraction policies, the ICO concludes that procedures are inconsistent across forces in England and Wales and calls for a new statutory code of practice to provide “greater clarity”.

The report follows criticism of the criminal justice system over the fall in rape convictions and the introduction of a new police digital consent form.

The information commissioner, Elizabeth Denham, said: “Current mobile phone extraction practices and rules risk negatively affecting public confidence in our criminal justice system.

“Police data extraction practices vary across the country, with excessive amounts of personal data often being extracted, stored, and made available to others, without an appropriate basis in existing data protection law.

“People expect to understand how their personal data is being used, regardless of the legal basis for processing. My concern is that an approach that does not seek this engagement risks dissuading citizens from reporting crime, and victims may be deterred from assisting police.”

The report notes that individuals see mobile phones “as extensions of themselves; they have become unique repositories of our personal information, generating huge amounts of data and often hold the most intimate and private details of our everyday lives”.

Police data extraction methods “appeared excessive in many cases, with little or no justification or demonstration of strict necessity and proportionality”, it adds.

Claire Waxman, London’s victims commissioner who raised concerns with with the ICO, said: “Major changes are needed in how the criminal justice system gathers and uses the personal data of victims and how this is being communicated to victims … Current practices around how police collect mobile phone data, how much data they request and how it is shared with others, are damaging public confidence in our criminal justice system, and can deter victims from pursuing the justice they deserve.

“We still need to understand how these requests from the police and the CPS for excessive personal data are fuelling high levels of victims withdrawing from cases,” she said.

“Whilst I welcome the work … the recommendations have not gone far enough to provide the clarity the police urgently need to ensure a consistent approach that not only complies with data protection laws but is needed for victims to feel confident when reporting a crime that their data will not be used to discredit them and will be handled securely and with respect throughout the criminal justice process.”

But Claire Howell, a barrister at Drystone chambers, London, tweeted in response to the report: “I have had several cases where the complainant refused to hand over their telephones and were compelled to do so by the judge. In all those cases the material on the phones resulted in the case being dropped, because my client was innocent.”

Dame Vera Baird QC, the victims’ commissioner for England and Wales, said: “In the 15 months since the notices were introduced, charities have reported hundreds of rape complainants who have been forced to hand over personal data in fear of otherwise being denied justice. Hundreds more will have shrunk from the intrusion demanded into their privacy, and that of their families, and as a result there have been instances where otherwise ‘strong’ cases have been dropped.”

Kate Ellis, a solicitor at the Centre for Women’s Justice, said: “We are constantly being referred cases where victims of serious sexual offending are extremely distressed that they have been asked to agree to a full or very extensive download from their mobile phones, whether or not it’s proportionate to the facts of the case. Victims are frequently being told that they have no choice, or the suspect will not be prosecuted.”

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