Sexual Assault Victims Could be asked to Hand Phones to Police

Author:
Peter Garsden
Solicitor, Head of Abuse Claims
Date:
07/05/2019

Last month, it was confirmed that people who lodge a rape or sexual assault complaint in England and Wales may be asked by police and prosecutors to hand over their mobile phones - or risk the prosecution not going ahead. Unsurprisingly, this has prompted concerns from some quarters, including our team of expert Abuse Solicitors.

Under the new measure, people making complaints of rape and sexual assault will be handed digital consent forms, so investigating officers can access a person’s messages, emails, social media accounts and photographs. Victims will be able to refuse consent for police to access their data. However, the forms also state that if they don’t give permission, it may “not be possible for the investigation or prosecution to continue”.

So what problems could this new policy potentially create when it comes to reporting rape and sexual assault?

Peter Garsden, Head of Abuse Claims at Simpson Millar, commented, “The practice of searching for the confidential social media history of a victim of abuse is very controversial, and will undoubtedly deter many victims from coming forwards.

“I presume that this rule does not apply to victims of historic abuse, where the events happened long before mobile phones were invented. Unless guidance is clear, in view of the publicity, the inhibitory effect may affect all kinds of abuse cases.

“The examination of the life history of a victim of abuse runs contrary to the protection which is usually given to a vulnerable witness in Court from aggressive and harsh questioning.”

Baroness Newlove, the Victims’ Commissioner for England and Wales, has also raised concerns with giving complainants digital consent forms, warning that victims of sexual violence face "routinely having their personal lives disproportionately investigated".

She argued that victims of abuse should have access to free independent legal advice before signing over their data, with any disputes over disclosure of evidence being arbitrated by Judges.

However, supporters of this latest measure believe it is necessary in the wake of the collapse of several rape and serious sexual assault cases, in which key evidence only emerged late on, and could therefore lead to more convictions.

According to Home Office figures, the proportion of rapes that led to a charge stood at less than 2% by December 2018, compared with 8% for all crimes. However, between December 2015 and December 2018, the number of rapes recorded by police rose by 40% from 29,385 to 41,186.

A legal challenge is already been planned by the Centre for Women’s Justice, which believes the move represents a move “back to the bad old days when victims of rape are being treated as suspects”.

Whether this, combined with the widespread criticism, will lead to a policy change remains to be seen. However, we will be keeping an eye on developments in this area, as we believe the law should support and encourage victims of sexual crimes to come forward and seek justice.

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