New safeguards to be introduced to prevent ‘digital strip search’ of rape victims

Dame Vera Baird QC said it was a “a major breakthrough for rape survivors” after she had campaigned for safeguards to protect victims’ privacy while ensuring fair trial rights.

She said: “Victims of rape are currently faced with an impossible choice: the pursuit of justice or the protection of their privacy.

“It has become practically routine for rape complainants to face intrusive and excessive demands for personal data from their electronic devices, with no relevance to the investigation of the crime in question. Refusal of these demands frequently leads to cases being dropped by prosecutors.

“This has had a chilling effect on victim confidence and many victims are made to feel like they are the ones on trial, with their credibility repeatedly questioned and undermined.”

Under the new law, victims’ mobile phone data will be requested only where a police officer reasonably believes that information stored on the electronic device is relevant to a reasonable line of inquiry. The Bill’s Code of Practice will further specify that requesting any such material must only follow if it is “strictly necessary” in pursuit of that reasonable line of inquiry.

Dame Vera said the Government’s amendments will make it illegal for police to place “undue pressure” on a victim to agree to their phone being searched. Victims must be told what information is being sought and what “reasonable” line of inquiry officers are pursuing so that they can provide informed consent.

Victims must also be informed that declining to consent to hand over their phones will not automatically lead to a police investigation being dropped.

Presently, many rape victims feel compelled to hand over their devices and bow to unreasonable data download demands in order for the investigation to remain active, said the Victims’ Commissioner. The law change does not diminish in any way defendants’ rights to full disclosure of any material, which might undermine the prosecution case or support the defence, she added.

Dame Vera is also calling on the Government to go further in the PCSC Bill and place similar safeguards on the use of what are known as ‘third-party materials’, such as victims’ life-long medical records, therapy and counselling notes and social services records.

These amendments have been tabled in the Lords and Dame Vera said the Government is “very alive to the issues around third-party material”, prompting hopes it will further amend the PCSC Bill.

The Government’s changes to the Bill follow months of close engagement between the Victims’ Commissioner and government ministers, with support for the changes coming from leading police voices and the Information Commissioner. The National Police Chiefs’ Council was consulted on the changes and were content that the law as proposed gives them sufficient powers to investigate, while avoiding unnecessary infringement of the privacy rights of victims, said Dame Vera.

When victims report sexual offences, their personal devices can be subject to extreme and indiscriminate data collection, in which highly personal and sensitive information, such as text messages and photos, are extracted. This material often has no relevance to the offence in question and campaigners say this data is extracted in an apparent search for material to discredit the victim before even beginning to investigate the accused.

This happens only in sex offence cases and has been dubbed ‘digital strip search’ by campaigners.

Victims have sometimes been told the case will be closed if they do not comply, leading to many victims withdrawing as they are uncomfortable handing over private data to authorities, said Dame Vera. For rapes recorded in the year ending March 31, 2021, 42 per cent of victims ended up withdrawing their support. And 2019 analysis by the Victims’ Commissioner found that one in five victims withdrew complaints, at least in part, due to disclosure and privacy concerns.

As well as impacting victim attrition, it is also a factor for victims in whether to report in the first place. The Victims’ Commissioner’s 2020 survey of rape complainants showed that, for some, scrutiny of their personal lives was a consideration in their decision not to report.

Dame Vera said the massive volume of data leading from indiscriminate searches means investigators must sift through sometimes thousands of items, which can lead to extensive delays in processing sexual assault cases. She said the latest Crown Prosecution Service figures indicate that the average time from receiving the case from the police to charging is 170.2 days, more than four times as long as all crime time-frames.

Dame Vera said: “I am grateful to the Government for engaging with my office on this, heeding my concerns and those of others involved on the frontline in rape cases and for recognising that change was needed. These amendments will introduce vital safeguards for rape victims whilst protecting fair trial rights.

“It is crucial that victims are asked to agree to any strictly necessary download of their data, free from pressure or coercion, and that they fully understand what is being sought from them and the implications of providing such information.”

She added that “unjustified police demands” for access to material in the hands of third-party materials are also within her sights. Campaigners say these materials are frequently sought from rape complainants and often appear to be more about undermining the victim’s credibility as a witness than pursuing a ‘reasonable line of inquiry’.

Dame Vera Baird said: “Frontline practitioners tell me of people reporting historic sexual offences from the Seventies and ‘Eighties being asked to hand over their current mobile phones; of victims raped in their thirties being required to consent to childhood social services records to be trawled.

“These speculative searches can have no relevance to the facts of the case and appear to be conducted as a credibility check on the complainant.

“This happens only in rape and sexual assault and in no other kind of case. Complainants need to be protected against these excessive demands in the same way the Government has now agreed to protect them against excessive demands for digital data download.”

The Victims’ Commissioner’s proposed amendments to limit unwarranted police demands for personal information held by third parties are currently tabled in the House of Lords, by the Labour peer Lord Rosser, the Conservative Baroness Newlove, who is the former Victims’ Commissioner, and Lord Anderson, a leading QC and crossbench peer.

The proposed legal safeguards would require that material in the hands of third parties could only be requested by officers in pursuing a “reasonable line of inquiry” and if they suspect that there may be material there that the law requires them to disclose to the defence. There would need to be an audit trail to show when, how and why consent was given by the victim.

Baroness Williams of Trafford, Minister of State told the House of Lords last month that the amendments: “[Highlight] a very important issue around the proportionality of requests for third-party material relevant to a victim.

“This material can be highly sensitive – for example, medical records. We agree that such material should only ever be sought where there is a reasonable line of inquiry, but we are aware that this is not always the case. There are examples where such requests cannot be justified, and this has a detrimental impact on the confidence of victims.

“The Government wholeheartedly agree that there needs to be a consistent approach to ensure that requests for third-party material are made with the victim’s right to privacy in mind and to ensure that the victim is fully informed.”

Writing in The Independent, Labour’s Shadow Minister for Policing and the Fire Service Sarah Jones said: “We have been urging the Government to protect victims, particularly victims of rape and sexual abuse, from painful and often unnecessary intrusion into their lives by the mining of their phone data.

“I can only imagine what it takes for someone just to take those first steps into a police station and recount what happened to them, after they have been raped or abused – not to mention the fear of potentially handing over everything on their phones.

“Analysis by the Victims’ Commissioner showed that one in five victims withdrew their complaints at least in part because of disclosure and privacy concerns. Victims in 21 per cent of cases had concerns about digital downloads: about disclosing GP, hospital, school and employment records, and about a combination of negative press coverage from certain sections of the media.

“We must end the situation where rape victims are forced to choose between justice and their right to privacy. Only 1.5 per cent of recorded rapes lead to a charge and far too many complaints are withdrawn by the victim.”

She added: “These crucial legal changes must drive wider culture change to how victims are treated and improve how rape cases are dealt with. They are a significant step forward for the protection of victims.”