The National Police Chiefs Council and Crown Prosecution Service are introducing standardised consent forms for allowing access to phones and other devices because, they say, the approach to explaining why a complainant or witness's digital device has to be seized and its contents analysed has so far been inconsistent.
Chief Constable Nick Ephgrave, NPCC lead for criminal justice, told a media briefing that the form will explain in detail why access is required and makes clear that the individual will have an opportunity to explain why they do not want to hand over their device. However, Ephgrave said, 'if that's the position they adopt it may not be possible for a prosecution to proceed'.
Max Hill QC, director of public prosecutions, said it was important that prosecutors and police investigators do not speculate their way through a case. 'We're driving out speculation. The thinking must be articulate and the emphasis on reasonable lines of enquiry,' he said.
Ephgrave said the forms 'have not been welcomed by everyone' and senior chiefs are 'listening to those who think it's too heavy handed, restrictive or putting people off reporting crime'.
The Centre for Women's Justice says it is preparing a legal challenge amid concerns that excessive disclosure requests are being made of women reporting rape and sexual assault.
The centre acknowledges that the forms will bring consistency to the practices of different police forces, but says the approach being taken is unlawful. It argues that the forms will primarily apply to victims of rape, sexual assault and domestic abuse, rather than other criminal offences. It also says the new policy violates the Data Protection Act 2018 and article 8 of the European Convention on Human Rights (right to privacy).
Solicitor Harriet Wistrich, the centre's director, said rape complainants are routinely asked to provide their mobile phone data when reporting a crime. 'Most complainants fully understand why disclosure of communications with the defendant is fair and reasonable, but what is not clear is why their past history (including any past sexual history) should be up for grabs. We seem to be going back to the bad old days when victims of rape are being treated as suspects.'
The centre is working on the challenge with Big Brother Watch, a civil liberties and privacy group.
Griff Ferris, Big Brother Watch's legal and policy officer said: 'The CPS is insisting on digital strip searches of victims that are unnecessary and violate their rights. Police investigators are drowning in irrelevant phone and social media data about victims' private lives that often predate the reported crime by years.
'Treating rape victims like suspects in this way delays investigations and trials, prolongs distress for both victims and suspects, deters victims from reporting and obstructs justice. These excessive digital trawls set an alarming precedent for the criminal justice system.'