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Controversial ‘consent forms’ used in rape and sexual offences cases withdrawn by the police

July 16, 2020 Nic Mainwood

“My experience with the police and CPS was degrading and unlawful. I was raped by a stranger and the police demanded 7 years of irrelevant data from me that predated the rape”

Solicitors for the National Police Chiefs Council have informed the Centre for Women’s Justice (CWJ) that they have written to all chiefs of police across the country to inform them that they will be withdrawing the current digital data extraction forms controversially used in rape and sexual offence cases.[1]  The announcement follows a legal challenge brought by CWJ last year which argued that the use of these forms was unlawful, discriminatory and led to excessive and intrusive disclosure requests.
 
The publication of the guidance issued jointly by the NPCC, the Crown Prosecution Service and the College of Policing in April 2019, caused outcry and concern in Parliament that women who reported rape were essentially being required to hand over all their personal data before an investigation could proceed.
 
The legal challenge brought by two women represented by CWJ, was issued in July 2019, but put on hold pending the publication of a report by the Information Commissioner on ‘Digital Data Extraction’, which was published in June this year. The ICO report followed an 18-month investigation, which reviewed a number of different police forces’ procedures for extraction of mobile phone data and found ‘no evidence’ of police officers considering less intrusive alternatives to mobile phone extraction. The ICO expressed concern that: ‘Considerations of necessity, proportionality and collateral intrusion were not, based on what we saw, sufficiently or routinely documented’

A Court of Appeal judgment, Bater-James and Mohammed v The Queen [2020], that was given shortly after, provided a set of guiding legal principles for a correct lawful and proportionate approach to the disclosure of data from complainants in rape and other sexual offences. 

The Centre for Women’s Justice claim brought on behalf of two women, ‘Courtney’ and ‘Olivia’ ,who had reported rape to the police and objected to them downloading the whole of their personal digital data which, they argued, was not relevant to the allegations they had made. Centre for Women’s Justice have received inquiries from hundreds of other rape victims and frontline service providers raising concerns about the intrusive disclosure requests which were deterring victims from pursuing allegations.

The publication of the ICO report and Court of Appeal judgment, vindicated the legal action brought, confirming the grounds of challenge. The claim, which additionally provided evidence of sex discrimination in the approach taken, was funded by the Equality and Human Rights Commission.

‘Olivia’ said:

“My experience with the police and CPS was degrading and unlawful. I was raped by a stranger and the police demanded 7 years of irrelevant data from me that predated the rape. Infuriatingly, the police and CPS have repeatedly said to the press that they only pursue reasonable lines of enquiry. This is untrue. I hope now that other women won’t be subjected to these unlawful requests.”


 
‘Courtney’ said:  

“I welcome the announcement by the NPCC because for the first time I feel like there is hope that victims of sexual violence will no longer have to make the choice between privacy or justice as I did.  There was nothing consensual about these "consent forms" and it is a relief that the CPS and police have finally accepted that. I approach this announcement with some trepidation, however, as I have been so seriously hurt and let down by the criminal justice system in the past. I am concerned that just doing away with the forms won't necessarily improve practice. I look forward to the day when I may effectively hold my attacker accountable and make our streets more safe".


Harriet Wistrich, director of CWJ said,

“we are relieved that these forms have finally been withdrawn from use, but they should never have been used in the first place. Their effect has been to delay rape cases and deter many victims from coming forward or continuing with their cases. We will work with the defendants to ensure something fair and proportionate is put in its place.”


Silkie Carlo, director of Big Brother Watch, who have provided evidence to support the legal challenge and published ‘Digital Strip search’, said

“This u-turn on digital strip searches is a huge success for our groups, the two women who bravely took on this legal challenge, and the thousands of people who signed our petition. These forms entrenched an intrusive and unlawful policy of digital interrogations that obstructed justice for thousands of people. “


EHRC chief executive office, Rebecca Hilsenrath, said:
 
“Digital data extraction forms are an invasion of privacy at a time when victims of crime are at their most vulnerable. There is no evidence that they are necessary in building a case. 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."

“We are proud to have assisted in the challenge by two brave claimants who brought this issue to the fore with the Centre for Women’s Justice. We welcome the decision from the National Police Chief’s Council and hope it leads to improving confidence in the justice system on the part of survivors of sexual assault.”

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