Police demands for access to rape victims' phones 'unlawful'

Owen Bowcott Legal affairs correspondent
Photograph: Yui Mok/PA

Police and Crown Prosecution Service requests to download the contents of victims’ mobile phones amount to a “digital strip search” and are unlawful, according to a coalition of 10 civil liberties organisations.

Launching a campaign challenging controversial “digital processing notices” introduced for police in England and Wales earlier this year, the alliance alleges that they are are “highly likely to infringe victims’ data protection and privacy rights” and cause delays to investigations.

The 10 campaign groups are Big Brother Watch, Amnesty International, the Centre for Women’s Justice, End Violence Against Women, the Fawcett Society, Justice, Liberty, Privacy International, Southall Black Sisters and the Survivors Trust.

Police and prosecutors have warned that in some cases, if victims do not allow the contents of their phones to be downloaded, they may not be able to pursue investigations.

The new approach was introduced following the collapse of series of rape trials – including that of Liam Allen - in which defendants were only belatedly granted disclosure of phone messages that undermined the accusations against them.

Prosecutors insist that just because material is downloaded, it does not mean it will all be examined.

The director of public prosecutions, Max Hill QC, insists that there has been no policy change and that legal safeguards restricting use of private information will be upheld.

Section 41 of the Youth Justice and Criminal Evidence Act 1999, for example, places limits on the admissibility of questions at court relating to a complainant’s sexual history, including material gathered from digital devices.

Hill said earlier this year: “We are not interested in someone’s mobile device just because they have one … It’s [about] having a conversation to take them through [the process] if there’s material on a device which forms a reasonable line of inquiry. There are some pretty hard and fast rules about the circumstances in which private information ends up in the hands of a public court.”

But victims’ groups and some MPs fear that the policy is deterring rape victims from going to the police. The Information Commissioner’s Office (ICO) has launched an investigation into the issue.

Their call is also backed by Vera Baird QC, the Victims’ Commissioner for England and Wales, and the Labour MP Jess Phillips. They will speak at a rally in parliament on Tuesday evening alongside the shadow attorney general, Shami Chakrabarti.

Silkie Carlo, director of Big Brother Watch, said: “These digital strip searches are a gross invasion of victims’ privacy and an obstruction of justice. Our phones contain emails, social media accounts, app data, photos, browsing history and so much more. These phone downloads can even exceed the information gathered from a police property raid.”

Baird said: “Big Brother Watch has done a detailed analysis. It confirms that, uniquely in rape cases, more demands for the content of digital devices are made of complainants than can lawfully be made of defendants.

“Unless they sign the entire contents of their mobile phone over to police search, rape complainants risk no further action on their case. These are likely to be traumatised people who have gone to the police for help.”

Harriet Wistrich, the director of the Centre for Women’s Justice, said: “Many women are fearful of reporting rape for a variety of reasons, including the fear they will be disbelieved or judged. The requirement to hand over the whole of their data history is an additional disincentive to a massively underprosecuted crime.

“We are preparing a legal action on the basis these consent forms are unlawful as they discriminate against women – who are the vast majority of rape victims – as well as a violation of the right to privacy, and of data protection principles.”