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Our take on the CPS & the use of Mobile Phone Data

Our take on the CPS & the use of Mobile Phone Data

This week the internet has been flooded with the news that the CPS intend to roll out a new consent form for victims to hand over their mobile phone as evidence in rape cases. For many this is new information, however as many of you will know, this has been happening to survivors for years. This recent announcement outlines that a standard consent form will be issued across all Police forces to create a more consistent approach to collecting evidence from rape victims. 

The Survivors Trust’s CEO Fay Maxted made a comment.

In 2008 13,096 rapes were reported to the police, by 2018 this number had risen to 53,977 and the figure continues to rise. Over the same period of time, the number of convictions has fallen.  
We clearly have a serious and long-standing problem with how our adversarial criminal justice system responds to cases of rape and sexual assault. Many victims say that the experience of giving evidence in court is like being raped all over again.  
We believe the guidelines requiring victims to agree to their phones and social media accounts being examined has the potential to add a further negative dimension to the reporting and investigation process. It is difficult to understand how this level of scrutiny will improve outcomes for victims. In fact, it is likely to deter many people from reporting.  
How many of us would relish having their personal texts, emails and photos examined in detail? In the past, a victim’s behaviour, clothing and past sexual history have all been used to discredit their evidence. Therefore the potential for text and social media exchanges to be similarly misused in cross examination seems high.  
Too often the focus in rape cases has fallen on the victim rather than the offender. Rather than yet again focusing on information about the victim, we believe rape cases should be heard in specialist sexual violence courts by a panel of judges, with victims given their own legal adviser or advocate to support them through the process.  
We need a step change in how our criminal justice system responds to rape and sexual offences or risk many more sexual offenders evading justice and continuing to pose a threat to society.

This CPS has issued a statement in response to the growing media attention. Here are the main points that they make in defence of the consent form:

  • 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.
  • There is explicit guidance that only material relevant to a particular offence may be pursued, to minimise unnecessary intrusion.
  • 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.
  • 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.
  • 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
  • If consent is not given, other reasonable lines of enquiry will be considered. However, we must also inform them that without the ability to test a reasonable line of enquiry we may not be able to proceed with the case.

Shortly after this announcement, Fay and author-survivor Danielle Downey organised a Facebook Live event discussing the barriers to disclosure, the CPS & mobile phones as evidence. You can watch a recording of that live event below.

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