Change needed to stop victims being treated as suspects, data watchdog warns

Information Commissioner John Edwards has called for an immediate end to the criminal justice sector collecting vast swathes of personal information.

30 May 2022

Rape victims are still being asked to hand over their mobile phones as part of “excessive” police scrutiny, nearly a year on from a Government pledge to overhaul how cases are investigated, the data watchdog has warned.

Information Commissioner John Edwards has called for an immediate end to the criminal justice sector collecting vast swathes of information – including phone analysis described as a “digital strip search” – amid concerns that victims of rape and other serious sexual offences continue to be “treated as suspects”.

He said victims’ trauma “can be further amplified” if personal information found during a download of their phone or a trawl through historic medical records is “used in distressing ways”, such as effectively being cross-examined by police about the presence of explicit images unrelated to the alleged crime.

Mr Edwards said: “Our investigation reveals an upsetting picture of how victims of rape and serious sexual assault feel treated. Victims are being treated as suspects, and people feel re-victimised by a system they expect to support them.

“Change is required to rebuild trust that will enable more victims to seek the justice to which they’re entitled.”

The Government announced last summer in its Rape Review that any digital material requested from victims would be “strictly limited” to what was “necessary and proportionate to allow reasonable lines of inquiry into the alleged offence”.

But the latest Information Commissioner’s Office (ICO) report found that victims are “being told to consent to hand over extraordinary amounts of information about their lives, in the immediate aftermath of a life-changing attack”.

Mr Edwards said excessive data searches continue to happen “at a more-than-trivial rate”, affecting a large number of people.

He said: “I think our report comes at a time where there is a move towards a consensus that these procedures need to stop.

“These are institutional and cultural issues which take some time to turn around.”

It comes as campaigners continue to cite low conviction rates for sexual offences, with latest Home Office figures showing just 1.3% of 67,125 rape allegations recorded by police in 2021 leading to prosecution.

The ICO report sets out a number of recommendations, including for the National Police Chiefs’ Council to mandate all constabularies to stop issuing forms to victims indicating general consent to obtain information.

A Crown Prosecution Service spokesman said: “Prosecutors and investigators are asked to carefully consider when it may be necessary to seek a complainant’s personal data.

“Both the law and our guidelines set out clear parameters police and prosecutors must follow when making requests – they must be specific and only sought when necessary.

“Defence should be passed this information only to comply with our legal obligations where information is capable of undermining the prosecution case or assisting the suspect.

“We are working jointly with police and criminal justice partners to get this right and rebuild confidence, by providing early advice to focus the investigation on relevant lines of inquiry and looking at the suspect’s behaviour before, during and after the alleged incident.”

A Home Office spokesman said: “We must ensure that victims and witnesses are confident they will be treated with sensitivity and dignity when reporting crimes and that their rights to privacy are protected.

“That’s why we strengthened the law which covers requests for digital information, to ensure that victims are only asked for their phone where necessary and proportionate, and funded £5 million of new technology for 24 police forces to help meet our rape review commitment that no adult rape victim will be left without a phone for more than 24 hours.

“We will also shortly be launching a public consultation on police requests for personal information, such as medical or education records, to understand more about the problems in this area and to test possible solutions.”

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