Uproar over rape victims forced to endure ‘digital strip searches’

Police get power to trawl through old texts, photos and emails on phones

RAPE victims are being told to hand over their mobile phones to police or risk their attacker escaping justice if they refuse.

Officers are seeking permission to trawl through victims’ text messages, emails, photographs, videos and social media for evidence.

Police chiefs have agreed a new consent form to allow detectives to seize mobile phones and laptops from victims and witnesses.

The form states: ‘If you refuse permission for the police to investigate, or for the prosecution to disclose material which would enable the defendant to have a fair trial then it may not be possible for the investigation or prosecution to continue.’

The policy is already being rolled out across the 43 police forces in England and Wales, but has only been officially announced today.

Victims will now be asked to sign the ‘digital device extraction’ form when they first report their allegations to police.

But Harriet Wistrich, director of the Centre for Women’s Justice, has pledged to mount a legal challenge, arguing the forms are unlawful as they breach data protection, human rights and equality laws.

The lawyer, who represented victims of black cab rapist John Worboys, has been instructed by two women who were told that their rape allegations would be dropped by police because they refused to hand over their phones.

Max Hill QC, the Director of Public Prosecutions, said digital devices will only be looked at when it forms a ‘ reasonable line of inquiry’, and only ‘relevant’ material will go before a court if a judge agrees. However, the forms state that if officers find information of a separate criminal offence this may lead to other investigations.

Northumbria Police and Crime Commissioner Dame Vera Baird said the forms were just part of the problem as police and prosecutors also look to harvest third-party material, such as school records and medical notes.

‘The police are really saying, “if you don’t let us do this, the CPS [Crown Prosecution Service] won’t prosecute,”’ she said. With the new consent forms, victims are asked to hand over all of their digital material. But police say this does not mean all data will be examined. All information recovered in the course of a criminal investigation will be stored by officers.

The criminal justice system came under the spotlight last year after a string of defendants had charges of rape and serious sexual assault against them dropped when material emerged as they went on trial.

Among the most high-profile was that of 22-year-old student Liam Allan, who had 12 rape and sexual assault charges against him dropped after the discovery of messages showing the claimant pestered him for ‘casual sex’.

Yesterday, Scotland Yard Assistant Commissioner Nicholas Ephgrave, of the National Police Chiefs’ Council (NPCC), said he recognised the ‘inconvenient’ and ‘awkward’ nature of handing a phone to police which may be held for months. ‘I wouldn’t relish that myself,’ he admitted. ‘It will certainly be awkward for some people to know other people are looking at material on their phones that they didn’t anticipate being seen by anyone other than the people they sent it to.’

Last year, 47 prosecutions for rape or serious sexual offences were abandoned due to issues with disclosure of material.

Separate Home Office data shows just 1.7 per cent of rapes resulted in a charge or summons last year, compared to 3.3 per cent in 2017.

Campaigners say the 57,600 rapes recorded by police in 2018 are only a fraction of the real figure as many victims do not report assaults.

Griff Ferris, of Big Brother Watch, said: ‘The CPS is insisting on digital strip searches of victims that are unnecessary and violate their rights.’ The Information Commissioner’s Office has launched an investigation into use of data extraction technology on phones.

A CPS spokesman said: ‘ We understand that how personal data is used can be a source of anxiety and have developed the new forms to provide clear and consistent information on this.

‘Mobile telephones should not be examined as a matter of course. However, in circumstances when it is necessary – both for gathering evidence and meeting our disclosure obligations – we hope the clearer information we have provided will help complainants give free, specific and informed consent.’

‘Basically going back to the old days’

THERE can be few things more traumatic and damaging for a man than being falsely accused of rape.

So the recent string of miscarriages of justice, where rape cases were thrown out because critical material had either been overlooked or withheld from the defence, has brought shame on the Crown Prosecution Service.

Most egregious was the case of 22-yearold Liam Allan, who had rape and sexual assault charges against him dropped after the emergence of messages from the alleged victim pestering him for casual sex.

He was acquitted – but not before enduring two Kafkaesque years of mental torture. So it’s right that the CPS should act to avoid such travesties happening in future. The problem is that their plan for doing that throws up a host of deeply disturbing questions.

Rape victims must now hand over their mobile phones to police, or risk their case being dropped. This means officers trawling through their entire digital lives, poring over pictures, texts and emails.

It would then be up to them to decide what was ‘relevant’ – and what to share with lawyers for the alleged rapist. This could include sexual history and intimate photographs from years before.

Quite apart from the appalling breach of privacy, victims are effectively being made to prove their innocence. They are being treated like suspects.

Many rape victims are already too scared, too vulnerable or too embarrassed to come forward. This gross intrusion is another huge impediment to reporting their ordeal.

It’s reasonable to ask them to hand over any relevant texts or other information. And to warn that failure to do so could lead to charges of perverting the course of justice.

But forcing them to open up their personal lives to the prying eyes of strangers – and potentially to their rapist – is simply wrong. Little wonder that campaigners have likened it to ‘a digital strip-search’.

And how troubling for British justice that victims should be forced to prove they weren’t somehow to blame for being raped.