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Police and Crown Prosecution Service abandon consultation meeting on rape victims' phones

6 Jul 2019

Police chiefs and the Crown Prosecution Service (CPS) cancelled a long-awaited meeting fixed for Friday afternoon (5th July 2019) to consult with victims' groups around demands for rape victims' mobile phones, just three hours before it was due to begin.

The meeting was offered in the wake of a national outcry against a controversial new policy announced in April

Victims' representatives and rights campaigners from 13 stakeholder groups across the country including Rape Crisis, the Victims' Commissioner, the Centre for Women’s Justice, End Violence Against Women Coalition and Big Brother Watch were en-route to the Crown Prosecution Service's Westminster office when emails arrived scrapping the long-awaited meeting.

The Crown Prosecution Service cancelled the meeting, with just three hours’ notice, after receiving a letter before action from the Centre for Women's Justice the previous day.

In April the National Police Chiefs' Council (NPCC), the Crown Prosecution Service (CPS) and National College of Policing (NPC) launched the new 'Digital Device Extraction and Digital Processing Notice' to all police forces, which requires rape victims hand in their phones for full data downloads. Rather than seeking consent for specified digital evidence, the new policy asks complainants to confirm they understand their devices may be subject to unlimited data searches. Victims are told that if they do not consent, their case may not continue, and that if evidence of any other crime is found on their phone, this will be investigated.

Campaigners have warned police that excessive demands for victims' data are unlawful and are "obstructing justice" by leading to cases being dropped. 

In a detailed letter before action sent to the three agencies responsible for the ‘extraction policy’, the Centre for Women’s Justice demands the policy should be withdrawn now because it is unlawful on grounds that such requests are disproportionate, they discriminate against women and are incompatible with fundamental rights of privacy and protection of personal data.

This new policy was released despite detailed objections to it by campaign groups including Rape Crisis, the Centre for Women's Justice, and the End Violence Against Women (EVAW) Coalition,  and the former Victims' Commissioner.

Katie Russell from Rape Crisis England & Wales said:

“The last-minute cancellation of this long-awaited meeting is extremely disappointing.  Rape Crisis received a letter from the Crown Prosecution Service, National Police Chiefs’ Council and College of Policing at the beginning of May assuring us of their desire to meet and work together with us and other expert stakeholders to develop their approach to digital evidence gathering going forward. Such a meeting has so far not taken place.

“As a result, our very serious concerns about current digital evidence gathering practice and the ‘consent form’ remain. Use of the word ‘consent’ here implies free choice about whether or not to sign, when in practice the only choice being offered is between handing over huge volumes of personal data with little clarity as to how it will be used, or having the investigation into a serious violent crime against you dropped.

“When criminal justice outcomes for victims and survivors of all forms of sexual violence and abuse are so desperately low, we have to question whether the routine gathering and storage of all their personal data, much of which will inevitably be completely irrelevant to the allegations in question, is justifiable, proportionate or in the interests of justice, particularly when it has the potential to feel punitive and put people off reporting."

Silkie Carlo, Director of Big Brother Watch said: 

“There is a massive failure within our justice system and yet it seems the very people who are supposed to protect it are not willing to listen. We've told them our concerns before and we were prepared to explain them again today, but the doors have been shut in our faces. 

“The fact is that victims of crime are being forced to choose between their privacy and justice. Police are now seeing phones and data as digital character references and victims' private lives as open to scrutiny.

“This goes far beyond reasonable investigations and towards intrusive fishing expeditions. This policy sets a dangerous precedent for how data and devices are used in the criminal justice system and must be urgently reformed."

Victims' Commissioner Dame Vera Baird QC said:

"The National Police Chiefs' Council and CPS published this digital download ‘consent’ form in April, despite the strong disagreement of experienced rape support organisations, Police and Crime Commissioners and my predecessor.

The instructions attached to it make clear that if there is no consent to - at a minimum - the extraction of all data except deleted material the case may not proceed. This is wholly disproportionate.

Practice both before and since this form was published has been to demand this material and abandon cases if there is hesitation, this is so even where the allegation is that the complainant was raped by a stranger and there will be no relevant material.

That the Centre for Women’s Justice has, in a bid to protect complainants, sent a legal letter is surely a huge additional reason why police and CPS should be re-engaging with the stakeholders to look for a reasonable and proportionate solution."

Harriet Wistrich from the Centre for Women’s Justice said:

“It should have been no surprise  that CWJ were preparing legal action since we have made it clear from the outset we regard the policy as unlawful.  We have been in correspondence with the NPCC since mid May regarding the action and provided full details of our objections in the letter before claim prior to the consultation meeting.  Having announced an urgent consultation following the national outcry, it is highly concerning that this should have been cancelled just hours before it was due to take place.  If it was felt inappropriate to meet with CWJ, there is no reason why other organisations were also cancelled”