Monday, April 19

U.K. Police Step Back on Victims’ Data, a Flash Point in Rape Cases

LONDON — The police in England and Wales said on Thursday that they would stop routinely asking victims of crime to allow checks of their electronic devices, such as computers and laptops, after critics said the practice discouraged people from reporting offenses, particularly in sex cases.

Tim De Meyer, a top official for the National Police Chiefs’ Council, said in a statement that the practice needed to be reviewed. “Searches of digital devices should not be automatic and will happen only when the investigating officer or prosecutor considers there to be a need to access information to pursue a reasonable line of inquiry,” he said.

Mr. De Meyer, who is an assistant chief constable of Thames Valley Police, a force in southern England, added that no victim “should feel discouraged from reporting a crime to the police.”

Consent forms to be filled in by complainants were introduced last year, immediately raising privacy concerns, especially regarding the potential to further discourage victims of already underreported offenses, such as sexual assault, from going to the police.

Those fears were underlined in a June report by the Information Commissioner’s Office, an independent government watchdog, on how the police were gathering digital data. The report came out after a legal challenge brought by two women last year who had made rape complaints and who had objected to the downloading of their data. The women had argued that offering such access to their devices was not relevant to their allegations and that the use of the forms was unlawful, discriminatory and intrusive.

The commissioner’s report highlighted concerns that the police were inconsistent in their approach and sometimes cast the net “overly wide” in seeking data. It also warned that demanding consent to comb digital data “should not be viewed as a coercive option” and advised officers to assume that anything held on a mobile phone or other personal device “amounts to sensitive data from the outset.”

Pressure to drop the consent forms grew last month when the Court of Appeal, reviewing two separate rape cases, issued a set of legal principles for data disclosure. The court stated that investigators should not review a witness’s digital data “without good cause” and that the request to inspect such material must, in every case, “have a proper basis.”

“There is a misconception, that is possibly widespread, that certain types of criminal allegations — most particularly those that are sexual in nature — ipso facto result in the right to automatic and unfettered access by investigators to the complainant’s digital information,” Lord Justice Fulford, vice president of the Court of Appeal, said as part of the ruling. “This is assuredly not the case.”

Mr. De Meyer, the National Police Chiefs’ Council official, sent a letter to police forces saying that both the watchdog report and the Court of Appeal judgment made it clear that the consent forms were “not sufficient for their intended purpose.”

The consent forms would be replaced with interim documents that will take into account the watchdog report and the appeal court’s findings, he said. The College of Policing would also produce guidance on investigative practice when mobile phone investigation is needed, he added.

Previously, the police could routinely ask victims and witnesses for access to data such as text messages, emails, contacts, social media records, internet browsing history and more. If complainants refused, the case could be dropped.

Furthermore, if investigators came across something incriminating — even if it was irrelevant to the original case — the accuser could be in jeopardy.

Harriet Wistrich, director of the Center for Women’s Justice, a public interest law firm that represented the two women who mounted the legal challenge, expressed relief that the previous consent forms would no longer be used. She argued that their impact had been to delay rape cases and to discourage victims from coming forward.

Rebecca Hilsenrath, chief executive of the Equality and Human Rights Commission, an independent government body that assisted with the women’s case, said that there were no grounds to support the idea that the extraction forms were necessary to build evidence.

“As they are predominantly applied to survivors of rape or sexual assault, they disproportionately impact on women and act as a discriminatory barrier to justice,” she said in a statement.

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