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April 30th 2019

Civil Liberties

Lawyer says ‘immediate clarity’ needed over law change under which alleged rape victims may be asked to hand over mobile phones

Andrew Petherbridge

Andrew Petherbridge

Legal Executive, Civil Liberties

Lawyer says ‘immediate clarity’ needed over law change under which alleged rape victims may be asked to hand over mobile phones

A lawyer has called for ‘immediate clarity’ over reports that new policies could see police investigations into rape allegations dropped if complainants fail to hand over their mobile phones for scrutiny.

A lawyer has called for ‘immediate clarity’ over reports that new policies could see police investigations into rape allegations dropped if complainants fail to hand over their mobile phones for scrutiny.

Andrew Petherbridge, Head of Civil Liberties and Human Rights at Hudgell Solicitors, fears messages coming from the National Police Chiefs’ Council (NPCC) and the Crown Prosecution Service (CPS) could lead to ‘genuine victims not reporting serious offences’ for fear of their private lives being ‘subject to unfair and unnecessary intrusion’.

The move follows a number of recent high-profile court cases collapsing due to evidence – including text messages from complainants – coming to light late on. This saw some men spend months on bail and facing court proceedings, with police forces and the prosecution criticised for not disclosing the vital evidence earlier.

Forty-three forces across England and Wales are now being given the option of using consent forms which will enable them to ask for permission from complainants to access their messages, photographs, emails and social media accounts.

This information will then be able to be downloaded and could be shared with their alleged attacker’s legal team under disclosure rules.

Whilst he says he understands the need of police forces to address the issue of accessing key evidence potentially contained on devices such as mobile phones, Mr Petherbridge has concerns over the approach taken.

“There is a real danger here that in some quarters a person’s refusal to hand over their mobile phone as evidence could be interpreted as that they have something to hide,” he said.

“That certainly would be an entirely unfair assumption.

“Imagine an alleged victim of rape handing over their phone which contains many intimate and personal data.

“There is perhaps a danger that incorrect and unjustified assumptions may then be posed around the complainant’s character, rather than focusing the investigation on the accused and the actual evidence in relation to the crime they are said to have committed.

“Such information contained on a phone or social media account may have no relevance to a rape or sexual assault investigation.”

Police have duty to protect wider public and ‘investigate every avenue’ before dropping cases

Max Hill, the Director of Public Prosecutions, has pledged that digital devices will only be looked at when it forms a ‘reasonable line of enquiry’ and that only ‘relevant’ material will go before a court if it meets ‘hard and fast’ rules.

But Mr Petherbridge says that will be a difficult judgement call to make, and clarity is needed on exactly how data taken from phones would be used.

“Police forces have a duty to protect the wider public and, regardless of whether a individual is reluctant to hand over their phone, officers must have investigated every other avenue, from forensics to witnesses, before allowing a potentially dangerous offender to walk free,” he said.

“I think there needs to be immediate clarity brought to this change in approach. People have a right to privacy. I am sure many law-abiding people would not feel comfortable handling over their mobile phones for others to scour through every detail.

“I certainly don’t think it is right to be putting any further pressure on people, who take what is far from an easy step in making such serious allegations, by suggesting a conviction could hang on whether they allow their phones to be checked.

“That simply isn’t right. The only way an investigation should ever be dropped is when police have exhausted all lines of enquiry, and there is no realistic prospect of a conviction and/or where it is not in the public interest to pursue a conviction.

“There needs to be clarity urgently on this matter. There is a real risk here of making genuine complainants feel like they are the suspects of wrong-doing, and it could result in genuine victims not reporting the most serious offences for fear of their private lives being subject to unfair and unnecessary intrusion.

“That is not a place we want to be.”

The digital consent forms can be used for complainants in any criminal investigations but are most likely to be used in rape and sexual assault cases, where complainants often know the suspect.

The forms state that complainants will be given the chance to explain why they don’t want to give consent for police to access data.

However, they warn “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.”

Mr Petherbridge has represented women in human rights actions against police forces for failing to protect them due to errors in investigations, and also in cases where the police have failed to carry out a proper investigation after a matter has been reported to them.

He also represents people wrongly accused, investigated and prosecuted in respect of serious crimes.

He said: “It is a very difficult issue and as lawyers we have represented the wrongly accused and those the police have failed to properly protect.

“I think the issue here remains the disclosure process between the prosecution and defence, which appears to have been the issue in previous cases.

“Evidence which has been available and which would have prevented prosecutions reaching court has been readily available without having to force those making accusations to hand over their phones.

“It appears that the problems have been with procedures, evidence checking and failure to ensure full disclosure.”

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