CPS | Handing over mobile phone data in rape prosecutions

Statement from the Criminal Prosecution Services:

There is widespread media coverage today about how police and prosecutors use information from the mobile phones of people who report rape or other sexual offences.

It is important to correct some serious inaccuracies in the coverage and online, which could deter victims coming forward to report crimes. Sexual offences can have a devastating impact and victims must have confidence that if they report a crime, it will be handled sensitively and fairly by police and prosecutors.

It is not true that complainants in rape cases must automatically hand over personal data on their digital devices or run the risk of the prosecution being dropped. Mobile phone data, or social media activity, will only be considered by the police when relevant to an individual case.

However, for an investigation to proceed and be fair for both complainant and suspect, all reasonable lines of enquiry must be pursued. This is not new and the policy has not changed – mobile devices will not be needed in every case – but when they are, there is explicit guidance that only material relevant to a particular offence may be pursued, to minimise unnecessary intrusion. This applies to all offences and is not restricted to allegations of sexual offending.

It has also been wrongly suggested that phone data will be handed over indiscriminately to lawyers representing the suspect, so that it can be used unfairly to discredit complainants. This is absolutely not the case, and there is clear legal guidance in place to ensure that private information which does not assist the defence or undermine the prosecution is not disclosed to the defence.

Even where material must be disclosed, there are further legal safeguards before it can be used in the course of any trial.

The new consent forms being rolled out by police are intended to achieve a consistency of approach nationally, so complainants are not treated differently in different forces. They replace those which were already been used in some forces. They are designed to bring clarity around the process and to give victims an understanding of how their data might be used so they can have confidence to come forward and support a prosecution.

Background

• These forms are not specifically for sexual assault complainants – they are used in any investigation where digital devices may be examined
• The forensic tools used by many forces mean that they will extract more data than is required for examination. We are clear this does not mean all data should be examined
• The form makes clear investigators should respect individual rights to privacy and not go beyond reasonable lines of enquiry. They set out what they consider reasonable in the context of the allegation and why. These requests must not be purely speculative
• However, in circumstances when it is necessary – both for gathering evidence and meeting our disclosure obligations – we hope the clearer information we have provided will help complainants give free, specific and informed consent
• Strong safeguards are in place to prevent complainants being cross-examined on irrelevant sexual history. Section 41 of the Youth Justice and Criminal Evidence Act 1999 places significant restrictions on the admissibility of questions at court relating to a complainant’s sexual history which includes material gathered from digital devices
• Our prosecutors will continue to robustly oppose defence applications to adduce sexual history evidence whenever it is appropriate to do so
• We have launched a new training course covering the operation of the Section 41 provisions which is mandatory for all CPS rape and serious sexual offences (RASSO) prosecutors and advocates and available to members of the external Bar. In addition we have launched updated and improved legal guidance for prosecutors
• We continue to work with victim groups and the Information Comissioner’s Office to ensure our approach offers the necessary balance between the requirement for reasonable lines of inquiry and the complainant’s right to privacy.