Rape victims and mobile phones
On 30 April 2019, the front page of The Times reported “Rape cases being dropped amid fears of ‘digital strip search’”. The Daily Mail’s told readers the new form was a “LICENCE TO LET RAPISTS GO FREE.”
On 29 April 2019, the media widely reported the roll out of police consent forms for complainants of rape and other sexual assaults. By the day’s end, the CPS had published a lengthy clarification trying to better explain the form. This was not as widely reported.
MPs and victim’s campaign groups have weighed in and the series of high-profile rape trials that collapsed last year (47 cases were abandoned) due to the failure of police and prosecutors to make relevant evidence available to the defence appear largely forgotten.
Legal practitioners facing the realities of disclosure in these kinds of cases cannot help but feel exasperated by the crass black-and-white reporting and ill-informed comments of law-makers who ought to know better. Some key points cannot be overstated. Here are just a few:
The “new” form does not represent a “blanket” policy that permits the defence unfettered access to a complainant’s mobile phone. It is designed to achieve a consistent national approach, so complainants are not treated differently by different police forces.
Under a subheading “What happens if I refuse consent for the police to access my data or information held about me?” the form states: “If you do not provide consent for the police to access data from your device you will be given the opportunity to explain why. 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. If a prosecution is able to continue then the defence representatives will be told of your refusal and a judge may order disclosure to take place. If this happens, you will be given the opportunity to make representations to the court about the reasons why you object.” This is not “new” in that in essence it is simply making clear the reality of the current position. It is hard to conceive therefore how this could reasonably be construed as a potential deterrent to complainants in the future.
Police investigators and prosecuting lawyers have a statutory duty to investigate all “reasonable lines of enquiry”. This is not new and is enshrined in the Criminal Procedure and Investigations Act. This means that the police have a legal duty to pursue lines of inquiry which lead away from a suspect as well as towards that suspect.
Data from mobile phones is unlikely to be relevant in every sexual assault case: e.g. opportunistic offences committed against strangers or allegations of an historic nature. As most sex cases depend on a jury’s assessment of the credibility of the person making the allegation and the credibility of person defending the allegation, material which bears on credibility must be relevant and must be examined by investigators.
Phone data is not indiscriminately handed over to defence lawyers. Clear rules ensure that private information which does not assist the defence or undermine the prosecution is not disclosed to the defence. The defence cannot carry out “fishing expeditions” or trawls. The defence is entitled to ask whether there has been a review of communications, images and social media activity that undermines the prosecution case. If there has not, then such a review should be pursued by the police.
Strong safeguards prevent complainants being cross-examined on irrelevant matters including their sexual history that could have been gleaned from their mobile phones. But rape investigations pose particular challenges for the police; in 90 per cent of cases the complainant and defendant know each other. Invariably it will be one person’s word against another’s with minimal corroborative independent evidence of any kind.
A defendant cannot stop police seizing and downloading the contents of their mobile phones. Relevant material that assist the prosecution case will be served as evidence in the case. Relevant material that assist the defence case ought to be disclosed to the defence. Where the defendant has cause to believe that there may be content that might assist – e.g. communication by text, WhatsApp, Facebook etc – the defence will not know about that exchange unless the police and prosecutors look for it, find it and disclose it.
In short, despite the reporting and comment to the contrary, the “new” consent forms are not all that new or significant and stringent statutory safeguards still preserve the fairness of the system – to both complainants and the accused. It is hoped that police and prosecutors redouble their efforts to ensure the disclosure reforms initiated in 2018 are not blown off course in 2019 by this adverse publicity.