UK investigators told to stop mass collection of personal data in rape cases

[EmbarrassingHadrosaurus]

This is good news if it's enforced. Digital stripsearching (as it's known) plus a deep dive into the complainants' personal records and information has been an open injustice for far too long.

UK investigators told to stop mass collection of personal data in rape cases

Information commissioner says indiscriminate gathering of details is undermining trust in justice system
…
In a report, published on Tuesday, the ICO says the current approach is undermining trust and confidence in the criminal justice system and re-victimising complainants, who can be subjected to a far greater level of interrogation about their personal information than the suspects they accuse.

John Edwards, the UK information commissioner, said: “We’ve got to this position now that when somebody fronts up and makes a complaint about serious sexual assault, they have a form stuck in front of them saying: ‘Please authorise us to access any information we want’ and they [the police or prosecutors] are just not exercising the thoughtfulness and discipline we would expect and they’re going off on these quite wide fishing expeditions.

“We think these practices are widespread and they need to change and we’ve sort of put some stakes in the ground for investigators so that they understand what the limits are of their ability to investigate. What we’re saying is: ‘Here are the rules and if you don’t comply with those, we will come back with an enforcement hat on.’”

www.theguardian.com/society/2022/may/31/uk-investigators-told-to-stop-mass-collection-of-personal-data-in-rape-cases

Plus I dont think this happens in any other sort of case does it like a mugging or robbery?

So in that case I do not understand why you disagree with the ICO recommendation that requests for data must be:

• rooted in an identifiable investigative requirement ( ie a reasonable line of
enquiry); and
• specific in scope.

Or should we not scrutinise the victim's account at any point during the investigation?

Are you the police? are you really that dim that you literally don't understand what we are saying here?
How long do you take the accused's phone for?

ProudThrilledHappy

They would only look at your phone if it is relevant to the case - not just as a matter of course

bellac11

You would have to do this pre-charge.
This would be part of the lines of enquiry that CPS will base their decision on.
I can't see how or why you can do it post charge.

From an investigation point of view - if the suspect raises a point that there is evidence on the victim's phone which is crucial to their defence - and the victim refuses to have this information disclosed - how would a jury see it?
If you were being accused of a crime and raised this as a defence, would you expect the police to examine this line of enquiry?

It does happen in other cases, so long as its proportionate & relevant.
Harassment, malicious communications, thefts, burglaries, possession with intent to supply etc etc

Brefugee

The accused's phone can be kept for the duration of the investigation & court trial if its seized as an evidential exhibit.

The victim's phone a lot less time (depending on the nature of the evidence on it)

I'm not dim - I am pointing out that the notion that this form that states.....‘Please authorise us to access any information we want’ really doesn't exist.

And on average how long are victim's phones held? longer than 24 hours? I'm not handing it in. It is not up to a victim to prove how squeaky clean she is.

What other crimes do you do this for? (and again: you seem to lack any comprehension as to WHY people object)

So ignoring the bit about the form, as that has been mentioned several times that the guardians wording.

If you agree that looking at a victims phone should be reasonable, proportional, not a fishing expedition and as quick as possible.

And an independent commission by the ICO has found that that is not always the case, why would you disagree with the ICOs findings.

Because the only reason I can think of is because you want the leeway that some officers are taking, according to the ICO's investigation, in taking longer with a phone than needed, getting more information than is required or relevant etc.

If you only want what is proportional, and necessary then I am at a loss for any other reason why you would disagree with the findings.

So if you are accused of a crime, arrested and interviewed - and in your interview you state that there is messages on the victims phone which would exonerate you. How would you want the police to act?

Would it be ok to state that we are not allowed to look into the victim's phone records, so you're going to be charged & convicted of the crime?

Or do you want the police to look at all lines of enquiry for an impartial investigation?

Yes - it will take longer than 24 hours as it subject to RIPA applications, but it won't be held any longer than is required.

Other crimes - as stated above, harassment, malicious communications, thefts, burglaries, possession with intent to supply, frauds, stalking, CCB, slavery, MFH's etc etc

Harassment, malicious communications, thefts, burglaries, possession with intent to supply etc etc
Some of those I can see why needing a persons phone is required, but burglary? You need the victims phone because they were burgled? Why ? Theres no kind of investigation these days. We call the police and are given a crime number so we can claim on insurance. The end.

I'm not dim - I am pointing out that the notion that this form that states.....‘Please authorise us to access any information we want’ really doesn't exist
It's now been pointed out multiple times it was the wording in the article. But frankly it may as well exist. Once victims of rape and sexual assault are told to hand over probably their only way to contact help and support I would bet 90% plus discontinue trying to get justice.

Also saying it wont be held longer than necessary isnt overly helpful. Is that a day, a week or two years?

well we do have an excellent demonstration here of why i simply do not trust the police.

Felix125
I was wondering whether the alleged perpetrator’s phone and background is thoroughly searched too; and all aspects of details found, including from before the alleged crime, allowed to be considered potential evidence which could be brought up in court?

This is a genuine question.

Medical, social services and school records etc

Terfydactyl
Crimes like burglaries needing to view the IP's phone. If the suspect brings up a defence which requires you to examine it. Otherwise you're looking at failing to investigate.

A few examples - Suspect is alleged to have entered his ex-partners house and removed items. Victim states that they had split up months ago, have had no contact with each other and there is nothing now in the house which is his. His defence is that there are lots of items in the house which are his and had been agreed to remain there whilst he sorts another flat out. There have been numerous messages from the victim to the suspect which have become angry and are now threatening to sell/destroy his things. He turns up to get them and uses a key to enter.

Suspect is found in the garage by the family of the victim. Victim states that she doesn't know who he is and has no lawful reason to be there. Suspect's defence is that they have been having a relationship for many months and messages on the victims phone will show that. He has no access to a phone and has been using his friends to contact her.

No lawful reason for fingerprints of the suspect to be found on the outside windows of a property. Victim states they have no idea who this person is. Suspect raises a defence that he is their window cleaner and sent them a message from his friends phone to say he was coming over that day.

Teacher has an inappropriate relationship with one of her pupils and promises gifts in exchange. She reneges on this and so the pupil takes the items from her house which she promises him. She reports the burglary and denies any form of relationship between them. Pupil is arrested but has deleted any phone messages of his phone in case his parents see them. He does state that she might have messages on her phone inviting him round and will show the time frame of their relationship and what she was doing.

Its not the case that 90% discontinue the case. We don't leave victim's high and dry without a phone and provide them with another if we need to take theirs. Its not very often in any cases that we take the victim's phone. The vast majority of sexual offences I deal with I haven't taken the phones of the victim.

Length of time it takes to hold the phone - we can't give a definite time as other cases come in which jostle the queue around (high risk missing from homes for example will take priority as its an ongoing incident). Should we employ more officers to work behind the scenes on phone down loads? I would say yes, as it will speed things up - but most of the public want more officers on the streets and not behind desks.

Brefugee
You never gave a response to this one. If you don't trust the police what do you want us to do here?

So if you are accused of a crime, arrested and interviewed - and in your interview you state that there is messages on the victims phone which would exonerate you. How would you want the police to act?

Would it be ok to state that we are not allowed to look into the victim's phone records, so you're going to be charged & convicted of the crime? Or the victim will not allow us access to their phone so you're going to be charged & convicted?

Or do you want the police to look at all lines of enquiry for an impartial investigation?

ScrollingLeaves
It has to be specific to the crime and subject to a RIPA application. These applications are heavily scrutinised for proportionality, necessity and collateral intrusion - and often get kicked back to us for adjustments.

If its relevant to the case, then yes it will be examined to show any relationship before the offence - phone traffic, GPS, cell site data, who its attributed to etc etc. Also, if on the basis of an application other offences are seen, they will be investigated to.

For example - if we are looking for harassing messages which show a course of conduct and on looking at these messages, they start to fall into malicious communications, then these will be exhibited for that offence.

Much the same as screen savers or backgrounds of phones which commit offences. We might not be looking for images, but if the image is there as soon as the phone is turned on and its illegal, we can't simply ignore it.

This thread is very depressing.

Felix125 - you are full of arguments why the police and CPS are only looking at phones to be fair to the accused. It is not disputed that there are legitimate reasons for scrutiny.

What you are completely missing and utterly insensitive to is the complete crap fest of system status quo. You may not have the answer but how can you not see it is broken when victims are more afraid of the trauma of reporting horrific crimes than they are desperate to get justice and even more significantly prevent the perpetrators from doing it again.

Would it be right of you are the victim of a horrendous violent assault and when you reported the crime. The police treated you with suspicion that you are lying. Asked for your phone which is your live and wouldn't tell you how long they were going to take it for because they might have more important things to do. Then let the person who hurt you go uncharged because enough need your phone

@Felix125
Crimes like burglaries needing to view the IP's phone

I dont know what IP means?

The rest, how could you know how many women abandon their potential case because they are told to hand over their phone? What kind of phone is provided? Is it made clear a phone will be provided? Who pays for the contract of both phones? Are victims allowed time to transfer all the numbers etc from their phone to the new phone? So many questions but I have to go to work now, I'll be back later with more

Sandcastles24
So, whats the alternative?
What would you like to see?

We believe the victim throughout and if any defence is raised by the suspect, we ignore it?

If the suspect states that evidence exists which will exonerate them, we should just ignore it?

The victim provides a statement and stands on oath to say that they have not contacted the suspect in any way shape or form in the last 2 years - yet their phone is full of messages to & from the suspect in that time - do we simply ignore that? Does the jury not get to hear that particular chain of evidence?

If we and the courts and going to believe the victim, is there not an element that the victim should not lie to the investigation? Or do you think its acceptable that the victim may not be telling the full truth - and we just gloss over the bits which are missing.

How do you want the police to investigate it? And how would this encourage more victims to pursue things through the court?

Asked for your phone which is your live and wouldn't tell you how long they were going to take it for because they might have more important things to do. Then let the person who hurt you go uncharged because enough need your phone
Whats the alternative here then? Don't look at the phone and just assume that the victim is telling the truth and suspect is lying?

A person is innocent until proven guilty and you need to examine all lines of enquiry to prove the offence. This also includes to examine any lines of defence.

Yes, there should be a quicker turn around for phone downloads. What we could do is just download everything off the phone and hand the phone straight back. But the laws of RIPA and proportionality & necessity won't allow us to do that - so it takes time to do it.

Yes - I accept that it's highly traumatic for the victim to endure the whole process. But in terms of impartiality in the investigation - what would you like to see that is different?

Terfydactyl
IP = Injured Party

There will be figures there to show how many abandon their case. The crime enquiry and CPS returns show why the case is being dropped and if its solely linked to the phone not being downloaded.

The phone provided is normally a cheap phone for the victim to use as an emergency replacement - usually pay-as-you-go. Most of these phones go 'missing' so there will be a cost implication to consider. Bare in mind though that the IP gets their phone back once the download is complete.

Yes, they can transfer their contacts.

@Felix125

If you agree that looking at a victims phone should be reasonable, proportional, not a fishing expedition and as quick as possible.

And an independent commission by the ICO has found that that is not always the case, why would you disagree with the ICOs proposals?

So if the victim has to pay their phone contract and for credit on a pay as you go phone possibly for months what you are effectively saying is that poor women can be raped and the offenders won't be prosecuted.

A few examples - Suspect is alleged to have entered his ex-partners house and removed items. Victim states that they had split up months ago, have had no contact with each other and there is nothing now in the house which is his. His defence is that there are lots of items in the house which are his and had been agreed to remain there whilst he sorts another flat out. There have been numerous messages from the victim to the suspect which have become angry and are now threatening to sell/destroy his things. He turns up to get them and uses a key to enter.
Suspect is found in the garage by the family of the victim. Victim states that she doesn't know who he is and has no lawful reason to be there. Suspect's defence is that they have been having a relationship for many months and messages on the victims phone will show that. He has no access to a phone and has been using his friends to contact her.

Why can't the friends phone be examined, as it would be quicker as they would, you would assume, be happy to show exactly where that one text was and wouldn't need lots of other data examined.

No lawful reason for fingerprints of the suspect to be found on the outside windows of a property. Victim states they have no idea who this person is. Suspect raises a defence that he is their window cleaner and sent them a message from his friends phone to say he was coming over that day.

Why can't the friends phone be examined, as above

Teacher has an inappropriate relationship with one of her pupils and promises gifts in exchange. She reneges on this and so the pupil takes the items from her house which she promises him. She reports the burglary and denies any form of relationship between them. Pupil is arrested but has deleted any phone messages of his phone in case his parents see them. He does state that she might have messages on her phone inviting him round and will show the time frame of their relationship and what she was doing.

I mean the victim looks rather like a suspect in this instance so I think the lines are more blurred here.

But regardless these are all burglaries, which I understand was the point of the question.

What I struggle to understand is how someone can have a rape defence on their phone as a matter of course. Evidence of a relationship, consent to sex prior to meeting up etc are all utterly irrelevant unless we have gone back in time and things like marital rape etc are now allowed again. I can withdraw my consent at any point of the sexual encounter and any messages prior to that are irrelevant. Unless the sexual encounter was filmed (rare) then what evidence is being looked for?

Women who's UC is linked to their phone can't afford to hand it over. They could easily end up with benefit sanctions.

Applesandroses
Its the notion that we can just access anything we want, when we want i don't agree with.

Friend's Phone
We can use his friend's phone - if he discloses who the friend is - but we still need to attribute where the messages are going to the IP. For example the victim can states that they have sold their phone ages ago - so they had not received any messages at all. His phone is the one-way traffic, to dismiss his defence, you need to show that the IP's phone has not received it.

And we can't just ignore his defence line and it will have to be examined. A competent defence lawyer will argue that the police have failed to investigate by not examining his clients defence line.

The teacher example - is still reported as a burglary and needs to be examined.

Use of phones & technology
This is happening more & more in rape cases - the suspect will record the encounter on their phone (usually leaves their phone on record in their pocket, cabinet top). And they do this to prove the point of consent was gained. Usually one-night-stands etc. Its not done for any perverse reason, just a 'back covering exercise' for want of a better phrase.

Of course the point of consent can be withdrawn at any point and at that point it becomes rape. But the role of the defence (not the police or CPS) is to cast doubt on the victim's account. So if the defence hears that under oath the victim states that there was no relationship at all prior to the offence, but the defendant states that phone records suggest otherwise - the defence will jump on it and expect it to be investigated to the benefit of their client.

I don't know how as a society & judiciary we are going to get past this - unless you make a rule that the defence can't use evidence to cast doubt on the victim? But are we then not having an open & impartial investigation?

The victim doesn't pay for the phone top up - we do (so long as its not way over the top to the victims needs). And no, I'm not saying that poor women/men can be raped and the offenders won't be prosecuted. I work on the prosecution side of the law - but I put the victim's first followed by the investigation. But the investigation has to be done thoroughly otherwise any defence barrister will tear it apart.

Thelnebriati
They won't put sanctions on them if its part of an investigation - and there will be ways round this.

I have fully been in support of the police and the difficulties in prosecuting cases due to lack of evidence.
The comments on this thread have made me rethink that.
Felix just doesn't get it!
I really hope he isn't working on this type of case

I think the way rape is investigated is symptomatic of the "innocent until proven guilty" justice system we have. It is the same for all criminal offences that often the victim is put out of pocket or the process feels unnecessarily intrusive. Unfortunately, it is even more so for rape because of the nature of the crime, that it is usually between two people who know each other (therefore evidence is naturally going to be on both parties' phones), and that no one else is present for the event. As the issue is often one of consent, there are no forensics or other evidence to use. Sometimes literally the only evidence is the victim's account and anything contextual on the mobile phones. It's the same for domestic abuse. That's why theyre both such awful crimes to experience and also so difficult to investigate and prove.

They won't put sanctions on them if its part of an investigation - and there will be ways round this.
I think what you mean is, if they are sanctioned, it can be put right afterwards.

I'm looking at it from the woman's point of view. She's told to hand over her phone, she knows that dealing with UC is a hassle and a risk. So it doesn't surprise me many women back out of making an allegation at that point.