Justice Gap – Why rape victims’ privacy must be protected from intrusive investigations

Big Brother Watch Team / February 21, 2019

If you’d been the victim of a crime and reported it to the police, you wouldn’t expect to be treated like a suspect. You wouldn’t expect the police to take your phone and download all your messages, photos, videos and internet browsing history – masses of information irrelevant to the crime you’d endured. If they started asking for records of what you got up to at school, or for your counselling records, you might even walk away.

However, this is the reality for many complainants of sexual violence, who are being put under extremely intrusive investigations of their personal and digital lives. Police, pressured by the Crown Prosecution Service, routinely request complainants’ mobile phones, social media accounts, medical records, school records and even counselling records.

When mobile phones are taken from either complainants or suspects, the police’s outdated technology means a disproportionate amount of information is taken by default.

Often a whole copy of the phone is taken, which can then be snooped through and explored: 30,000 pages of deeply personal information spanning texts, emails, online messages, social media accounts, apps, photos and videos. Even when a single message or photo is sought, the police’s antiquated technology only permits the bulk collection of the entire data type, meaning thousands of private messages or photos will be taken. The police can keep all of this information for up to 100 years.

Absurdly, complainants are coerced, under the threat of their investigation being dropped, to sign away their privacy rights and give blanket ‘consent’ to these investigations into their personal lives. But that’s not how consent works under the law. Consent cannot be coerced, ill-informed and non-specific. In this context of all contexts, authorities really should understand the concept of consent.

This avalanche of irrelevant information is overwhelming the police, delaying investigations for up to two years, and severely hampering the criminal justice system.

There are now countless disturbing stories of victims being subjected to these intrusive and lengthy investigations. One woman’s case was dropped when she refused to hand over her mobile phone, despite the historic crimes she reported pre-dating mobile phones. In another case, a police force handed over the entire contents of a victim’s phone to her abuser, despite the victim only giving the phone to police because it contained one single video that supported her case. Meanwhile, the discretion afforded to investigators under the ‘reasonable line of enquiry’ remit resulted in police searching the victim’s phone for information three years prior to the reported rape.

That’s why we launched a campaign, Victims Not Suspects, to protect the privacy and data rights of victims of crime and reform the system to better serve justice.

In fact, we’re not alone.

There is currently a wider effort by a range of authorities including the National Police Chiefs’ Council, the Information Commissioner, and the Victims’ Commissioner, as well as several other rights groups, to modernise police powers to collect complainants’ personal information. These reforms are vital to ensure the system is fair for everyone.

We’re not campaigning to ‘stop the police even obtaining text messages from accusers never mind disclosing them’, as Dr Dennis Eady commented in a recent Justice Gap article. Relevant phone evidence can be incredibly important in a trial. Neither are we advocating the ‘abandoning’ of the right to a fair trial, as Liam Allen claimed in the same article.

The right to a fair trial is a fundamental right central to the rule of law. Suspects are innocent until proven guilty; relevant evidence must be examined and suspects have the right to see any evidence that may undermine the prosecution. But protecting the privacy and data protection rights of complainants doesn’t conflict with suspects’ legal rights – it’s in everyone’s interests. Outdated technology results in unnecessary intrusion on the private lives of victims and suspects alike; investigations dragging on for years prolong turmoil for complainants and suspects alike; and critically, coercing complainants to ‘consent’ to blanket investigations into their private lives obstructs justice, posing a risk to us all.

Police too have voiced concerns that the current treatment of complainants will deter people from reporting. The Chair of the National Police Chiefs Council, Sara Thornton, has said that ‘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’.

In addition, Vera Baird, the victims’ lead for the Association of Police and Crime Commissioners, warned that ‘we need to ensure that complainants are not discouraged from coming forward to report sexual offences by inappropriate “fishing” into personal records, access to which is demanded in no other kind of case’.

The Director of Public Prosecutions, Max Hill QC, has said that ‘while an accused has a right to a fair trial, complainants are entitled to protection from unnecessary and unjustified invasion of their private lives.’ We agree. We want to see these protections.

These excessive digital investigations treat rape victims like suspects, undermine trust in our justice system, and deter victims from bringing offenders to justice. This broken system must be changed.

Griff Ferris, Legal and Policy Officer


Justice Gap: Why rape victims’ privacy must be protected from intrusive investigations