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Rape Crisis supports call for urgent reform of digital evidence gathering from victims

23 Jul 2019

Campaigners are calling on the National Police Chiefs’ Council to urgently revise a policy that requires victims of crime to hand in their phones for mass data downloads.

Big Brother Watch is today (23rd July 2019) launching a new report in parliament claiming the policy is unlawful and needs urgent reform.

The report claims the digital searches are “highly likely to infringe victims’ data protection and privacy rights” and are “causing major delays to investigations”.

New forms called ‘Digital Processing Notices’ were rolled out  across police forces in England and Wales in April 2019. The forms are used to notify victims of crime, most commonly victims of sexual offences, that police will download large amounts of data from their phones.

Although police may seek specific evidence the forms tell victims that, as a minimum, they need to download “almost all of the data you could see if you were to turn on the device and browse through it”.

The police form states that the allegations may not be investigated or prosecuted if they refuse, but that if the case does continue, “defence representatives will be told of your refusal”.

The new forms also warn victims that if evidence is found on their phones relating to other criminal offences, they will be investigated. This has caused victims to fear that they may be investigated for minor offences, or that they may incriminate their friends or family by handing over their phones to the police.

Rape Crisis, campaigning groups and MPs have warned that the policy is deterring rape victims from going forward to police. After groups raised concerns, the Information Commissioner’s Office (ICO) launched a high-priority investigation into the issue which is ongoing.

Rape Crisis has today supported ten human rights organisations in renewed calls for police chiefs to urgently revise the policy.

The call is also backed by Vera Baird QC, the Victims’ Commissioner for England and Wales and Jess Phillips MP. They will speak at the report launch in parliament this evening, alongside Rape Crisis England & Wales and other guests.

This morning, Big Brother Watch delivered a petition of 35,000 signatures to the Policing Minister and CPS, calling for the policy to be changed.

Katie Russell, national spokesperson for Rape Crisis England & Wales said:

"Our specialist Independent Sexual Violence Advocates (ISVAs) across the Rape Crisis network are reporting that full downloads of all victims' mobile data - most of it often completely irrelevant to the case under investigation - is increasingly becoming routine.

Victims and survivors too often tell us they end up feeling like the ones under investigation, especially when their rapist is rarely subjected to the same intensive level of scrutiny or invasion of privacy.

There's no doubt this practice already puts victims and survivors off reporting to the police and will continue to do so unless it's urgently reformed.

When less than 20% of those who are raped, sexually assaulted or sexually abused currently report to the police, and the criminal justice system so often fails those that do, this treatment of victims and survivors is not proportionate, in the interests of justice or acceptable."

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.

“Understandably, many victims are refusing to be violated in this way. But no victim should have to make a choice between their privacy and justice.

“The digital interrogation policy doesn’t allow victims to give police relevant pieces of evidence without feeling like their private lives will be put on trial. This disproportionate approach bears none of the basic qualities required by data protection or human rights law, and it’s staggering that the policy is yet to be revoked. Police chiefs must urgently retract the policy and devise a more competent, proportionate and lawful approach.”

Dame Vera Baird, Victims’ Commissioner for England and Wales, 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.

“Brave and public spirited enough to contemplate giving the most intimate evidence at court, many are discouraged by what looks like scrutiny of whether they are suitable or worthy.

“As Victims’ Commissioner I will work to get dignity and respect for victims which means an end to this incomprehensible intrusion into their privacy.”

Harriet Wistrich, 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 under prosecuted crime.

“The case law clearly establishes that the police should conduct only ‘reasonable lines of inquiry’ into the complainant: that should be reviewing data directly relevant to the offence they are investigating. 

“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.”