New procedures introduced in England and Wales ask victims of rape and sexual assault to hand over their devices and digital accounts to police or risk prosecution not going ahead

New consent forms have been rolled out across 43 police forces in England and Wales. Available to use for victims of any crimes, it is thought it will primarily be used in conjunction with cases alleging rape or sexual assault. The forms ask permission for police to access private information (including emails, text messages, app data, photographs and videos) from the victims' devices (smartphones, smartwatches, laptops).

Victims of crime will risk prosecution not being able to proceed if they refuse permission, it has been revealed. The introduction of consent forms regarding digital activities follows a series of serious sexual assault cases collapsing in 2017, as crucial evidence emerged during the trials.

Numerous victim support and digital watch groups have raised concerns. Privacy campaign group Big Brother Watch has compared new procedures to a “digital strip search” that “treats rape victims like suspects”. Many have expressed concern that this could further deter victims and witnesses from reporting crimes.

This new move attempts to close a gap in the law which says victims and witnesses cannot be forced to hand over their devices. While complainants and witnesses will not be legally required to hand over their devices, the form itself states that:

“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.”

Fears victims of crime will not come forward

The Centre for Women’s Justice has expressed concern that this move may dissuade victims from speaking up and reporting crimes. Using a woman referred to as Olivia (who recently reported a rape to police) as an example, Olivia expressed her concerns and misgivings about granting permission for police to view her digital data.

“The data on my phone stretches back seven years and the police want to download it and keep it on file for a century. My phone documents many of the most personal moments in my life, and the thought of strangers combing through it, to try to use it against me, makes me feel like I’m being violated once again.”

While police and prosecutors have reassured victims that only materials relevant to the potential prosecution will be collected, forms state that information regarding separate criminal offences may be retained and investigated.

Legal challenges planned

The Centre for Women’s Justice has said that legal challenges against the consent form are expected to be brought by at least two women who have been told that their cases could collapse if they do not cooperate with requests for personal data. Fears that victims may see excessive disclosure requests from police have been raised.

The organisation’s director, Harriet Wistrich, explained:

“Most complainants fully understand why disclosure of communications with the defendant is fair and reasonable, but what is not clear is why their past history (including any past sexual history) should be up for grabs. We seem to be going back to the bad old days where victims of rape are being treated as suspects.”

Big Brother Watch, The Centre for Women’s Justice, End Violence Against Women, Liberty, the Association of Police and Crime Commissioners (APPC) victims lead Vera Baird, Jess Phillips MP, and Caroline Lucas MP have all called for reforms of policies that result in the digital investigation of rape victims.

The policy requires victims of rape to agree to mass data downloads from their phones or may result in full copies of their phone data being taken (even if only a single message or photograph is relevant).

Big Brother Watch has called it an “abject failure to protect victims’ privacy.” Griff Ferris, Legal and Policy Officer at Big Brother Watch, said:

“There has been an abject failure to protect victims’ privacy rights from spurious investigations, with police forcing victims into signing away their privacy and data protection rights. No victim should have to make a choice between privacy rights and justice.

“Treating rape victims like suspects delays investigations and trials, deters victims from reporting serious crims and ultimately obstructs justice. We urge the police and the CPS to take action to protect victims of rape from these excessive digital investigations. ”

Sara Thornton, The Chair of the National Police Chiefs Council, said: “We cannot allow people to be put off reporting to us because they fear intrusion into their lives and private information that’s not relevant to the crime being shared in court.”

How will it work?

Digital consent forms can now be used for victims of any criminal investigation, but are expected to mostly be used in cases of rape and sexual assault where complainants often know the suspect.

Victims of crime who refuse to give their consent will be given the chance to explain why consent is being refused. However, the consent forms state that “it may not be possible for the investigation or prosecution to continue” if permission is refused. This has raised major concerns over the impact this could have on victims of crime coming forward and seeking justice.

Rape and sexual assault in England and Wales

The Crime Survey for England and Wales revealed that 20% of women and 4% of men have experienced some kind of sexual assault since the age of 16. That is the equivalent of 3.4 million women and 631,000 men according to Rape Crisis. 3.1% of women (510,000) and 0.8% of men (138,000) aged 16-59 have experienced a sexual assault within the past year.

Despite the number of reported rapes increasing by 15% year on year, prosecution saw a 23.1% fall during the same period.

It is thought only 15% of sexual violence experiences are reported to the police, despite approximately 90% of those who have been raped knowing the perpetrator prior to the event. The low numbers of reports to police are thought to be due to a complex range of reasons, including fear of further violence, fear that they may not be believed, or fear that their behaviour or personal life may be brought into question.

Research from Amnesty International UK in 2005 revealed a quarter (26%) of the public believe women are partially responsible for being raped if they wear sexy or revealing clothing, and a third of people believe women who flirt are at least partially responsible for being raped.

In 2018, it was revealed that rape prosecutions within the UK have plummeted despite a rise in the number of instances reported to the police. Last year saw the lowest rate of rape cases being charged by the Crown Prosecution Service (CPS) in over a decade. Year on year prosecution fell by 23.1%, despite the number of reported rapes increasing by 15% within the same period.

Conviction rates for rape are far lower than other crimes. According to Rape Crisis UK, just 5.7% of reported rape cases result in the conviction of the perpetrator.

Why now?

The disclosure of complainants’ digital information is thought to help uncover evidence that can assist prosecution and defence teams at an earlier stage. The issue came to light when multiple court cases were halted due to evidence not being shared with defence solicitors, such as in the case of student Liam Allen whose charges were dropped when evidence emerged during the course of his trial. The Metropolitan Police has apologised for a series of errors handling the case.

New policies raise the questions: would you willingly hand over your devices if you were the victim of a crime, or would you have cause to hesitate? Should we be making victims choose between their privacy and justice? We would love to hear your thoughts.

If you have been affected by any of the issues mentioned within this article, help and support is available. The NHS offers free advice and help for those affected by rape and sexual assault.

Rape Crisis is a national organisation offering support and counselling for those affected by rape and sexual assault. Victim Support offers confidential free services to anyone who has been raped or sexually assaulted recently or in the past, regardless of if you have told police or others about what happened.

Survivors UK offer emotional support for male victims of sexual abuse and rape through their chat or SMS services.