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

[Applesandroses]

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.

But in this case its the suspects phone that's needed not the victims. My point was that proof of consent is unlikely to be found in any meaningful way on the victims phone.

Of course the point of consent can be withdrawn at any point and at that point it becomes rape.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 understand the point here. However, I just don't understand why such high numbers of rape and sexual assault victims are being asked for their phones, when the above scenario is unlikely to be that common, and why the suspects cannot prove this themselves using their own phone records.

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?

I agree that if there is evidence that could exonerate a suspect then that evidence should be examined. However the ICO, who are impartial, and the public are putting forward the view that the victims phones are being requested to frequently, almost as a matter of course, in rape and sexual assault cases, when the likelihood of there being proof of innocence for the suspect on them is very low.

Additionally, the independent investigations are finding that suspects phones are not looked at as often, or kept.

Which feels like the Police are taking the phones of rape and sexual assault victims to find/discount evidence on because its easier than taking the phones of suspects. Especially when you add in the victims who have been told that if they refuse consent (not because there is evidence that would dismiss their case but because when you have been violated having someone further violate your privacy can be a step too far) cases are being dropped, despite the official stance being that refusal to hand your phone over shouldn't be sufficient for the case to not be investigated and carried forward to court.

Therefore, it can feel like and look like, the police cannot be bothered to investigate rape and sexual assault cases and therefore they are asking for victims phones knowing that a lot of them wont want to hand that over, and then telling them if they don't they will drop the case, rather than looking at the suspects phone first.

[TheTonEffect]

Re the seizure of victim's and suspect's phones - the suspect is likely to delete anything incriminatory from his phone. Although you can sometimes recover deleted data it's not a certainty as the phone will overwrite the old deleted files with new ones after a certain point. That can be a reason why victims are also asked to provide their phones - to provide the evidence. Services like WhatsApp are encrypted so you cannot request the messages from the company.

[Felix125]

Sandcastles24
So what don't I get?
And how would you look to improve things for an impartial trial?

Thelnebriati
So, contact UC and explain that the phone they have is not available for a while - but another phone is. There are also support agencies, victim support who can assist with this.

TheTonEffect
I totally agree with you
But, what is the alternative to 'innocent until proven guilty' though?

[Applesandroses]

@TheTonEffect

Re the seizure of victim's and suspect's phones - the suspect is likely to delete anything incriminatory from his phone. Although you can sometimes recover deleted data it's not a certainty as the phone will overwrite the old deleted files with new ones after a certain point. That can be a reason why victims are also asked to provide their phones - to provide the evidence. Services like WhatsApp are encrypted so you cannot request the messages from the company.

Yes, but the problem is that victims aren't also asked to provide their phones, in many cases the suspect isn't asked to provide their phone at all, even when, in the scenarios @Felix125 is describing, it can be used to exonerate them.

So the burden of proving the assault is put on the victim, and the burden of exonerating the suspect is put on the victim, leaving it appear as if the only person actually being investigated is the victim themselves.

[Felix125]

Applesandroses
But in this case its the suspects phone that's needed not the victims. My point was that proof of consent is unlikely to be found in any meaningful way on the victims phone.
The point of consent is not in dispute here - what the defence will try and do is show that the victim is not a trustworthy witness to the jury. And one way they can do that is when the victim states that they have had no relationship, conversation etc etc prior to the offence. But the suspect states that's not the case, they have been in a relationship for sometime.

So the defence will try and show to the jury that they are lying by presenting evidence on the victims phone. You can just use the suspects phone to show a conversation, but the victim only has to say that "there is nothing on my phone like that". But that won't be enough for a jury - just to take their word. You need to able to attribute the phone to them.

If the police don't try and look at the victim's phone - the defence will argue that the police have failed to investigate and are trying to fit their client up. The case will be thrown out and the police will be blamed for failing another victim.

I just don't understand why such high numbers of rape and sexual assault victims are being asked for their phones
I don't think its that high - I've never seized any phones from victim of rapes & sexual offences that I can recall. Even harassment we often don't need the victim's phone depending on what the nature of the case is.

despite the official stance being that refusal to hand your phone over shouldn't be sufficient for the case to not be investigated and carried forward to court.
It won't be sufficient for the investigation not to progress, but we will have the issue at court if that is the defendants defence alibi. And it might be a case that there is a low likelihood of evidence on the victim's phone to back up the suspects claim - but if we don't look, the defence will argue the police are withholding evidence which will cast doubt on the victim's account.

And I don't think there is a correlation for police and prosecutions to write off rape investigations at source if the victim will not disclose their phone. The suspect's phones are easy to seize as themselves and their homes are subject to searches under PACE following their arrest.

[sawdustformypony]

@Felix125 , Thanks for your input in explaining the law and police procedure.
As far as I can see, you understand the issues very well.

One aspect of all this that puzzles me is why the need to take the phone away from the complainants for more than a couple of hours. A backup of data from a phone over the internet doesn't take very long - , so what's the problem doing a download at the police station?

[Felix125]

Yes, but the problem is that victims aren't also asked to provide their phones, in many cases the suspect isn't asked to provide their phone at all, even when, in the scenarios @Felix125 is describing, it can be used to exonerate them.

So the burden of proving the assault is put on the victim, and the burden of exonerating the suspect is put on the victim, leaving it appear as if the only person actually being investigated is the victim themselves.

The suspect's phone will be seized from them if its part of the case - its an easy thing to do and you have specific powers under PACE to do it. The burden is also placed on the suspect to give an account and whatever account they give (alibi's) must be investigated.

Its not up to the victim to prove anything - the evidence is gathered and presented to a jury to make a decision.

[Felix125]

sawdustformypony
We can - but it will take everything off your phone. RIPA basically states we can't do this as any information has to be proportionate, necessary etc etc. You also have the issue that all of that is disclosable to the defence - so if the victim does have private information on there, the defence (and hence the suspect) will find it out.

You basically send the phone away and say - I want this phone downloading to show the following lines of evidence and nothing else. This is proportionate because of xyz and its necessary because of abc. Its a huge document you have to go through and it often gets kicked back for adjustments.

[Applesandroses]

I think the issue here @Felix125 is what your force do and what other forces do is not always consistent, understandably as there are many forces across the UK.

So whilst you do not routinely take victims phones or refuse to prosecute without seeing it, what the ICO have found and other victims are reporting is:

The ICO’s investigation found that police data extraction practices vary across the country, with excessive amounts of personal data often being extracted and stored without an appropriate basis in existing data protection law.

And I don't think there is a correlation for police and prosecutions to write off rape investigations at source if the victim will not disclose their phone

But a direct correlation between the two has specifically been found. Again this may vary by force but it doesn't mean its not an issue.

[Felix125]

Applesandroses
I agree, there are inconsistencies across the country, not as massive as they use to be and CPS tend to work to specific charging standards now. But they do occur.

You have to take into account errors & mistakes which happen too - sometimes genuine, sometimes not.

When the ICO mention data protection laws as to the extraction of information - is this more the storage of such data as apposed to the initial download?

Also, initial response to rape investigations will focus on the forensic side of things - scenes, victims first account, medical examination, suspect's arrest and his medical examination. The extraction of information from the victim's & suspect's phone will be later down the line after the suspect is interviewed.

Its not very often that a rape allegation will be written off at source without some sort of investigation - and I think it will be a rarity that its written off because a victim will not hand over their phone at the start of the enquiry.

[sawdustformypony]

We can - but it will take everything off your phone. RIPA basically states we can't do this as any information has to be proportionate, necessary etc etc. You also have the issue that all of that is disclosable to the defence - so if the victim does have private information on there, the defence (and hence the suspect) will find it out.

You basically send the phone away and say - I want this phone downloading to show the following lines of evidence and nothing else. This is proportionate because of xyz and its necessary because of abc. Its a huge document you have to go through and it often gets kicked back for adjustments.

So essentially, its merely a question of when the data is sifted between that which would either support the defence / undermine the prosecution case and that which should not be disclosed. If RIPA permitted it, then a copy could be made and then the phone returned to the complainant almost in the time it takes to drink a cup of tea.

[Felix125]

sawdustformypony
Not really - its has to be sent away to an independent body which downloads it. That way, when it goes to court, for example - the download will show that there is no evidence on the victim's phone to show any kind of relationship between them and the suspect. The phone can be shown to be attributed to the victim and cell site data can be used to determine where it was in relation to the victim.

The defence can't then argue that the police have only disclosed the information it wants - as its independent and disclosable.

The images/texts/messages/phone logs/voice mails or whatever they are - then have to be downloaded in a specific way so they can be exhibited. You also need statements from the people who are downloading it to exhibit them. And every app uses slightly different firmware.

Once this is done, it gets sent back. It will take longer than a cup of tea unfortunately - especially if someone spends their life on their phone texting etc. and there is millions of texts to go through.

They will be as quick as they can - but if an urgent job comes in, such as a suicidal missing from home where we need to 'ping' their phone to find their location - it knocks everything back a bit.

[sawdustformypony]

Felix125

I'm still not persuaded that it is vital for the original phone to be send away. It's part of the Police's job to retrieve and secure all manner of evidence in an investigation. They must be expected and trusted to do this. It can't be an unreasonable suggestion that a procedure be devised whereby trained investigating officers /civilian staff simply copy data from one device to another and then send that second device off in a secure evidence bag to the independent body. It may need dedicated software/hardware, but again that's not a huge problem . The officer concerned can then make a statement to be included in standard disclosure confirming that he or she followed the correct procedure. When the copying is being made, the defendant's police station representative could be present to witness the procedure.

If at the plea and directions hearing (or whatever they are called these days), the defence seek to raise concerns of anomalies in the procedure, I'd have thought, they would need good grounds to do so, before bothering the court with it. If the above procedure were followed to the letter, then that would minimise such applications.

[ScrollingLeaves]

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.

But Felix 125 you hear that a victim’s whole life is used, and used against them to discredit them, not just the specific part. Not anything proportional.

And I heard of a victim attacked by a stranger having their telephoned seized and their whole life examined.

[Felix125]

sawdustformypony
Its a possibility - I'm not that technically minded - but I think you will still have issues attributing the phone to the victim, Also, you will need a like for like device to copy onto and will it upload all the data from the phone. Will the victim's phone have links to its cloud or Facebook accounts accessible via the phone - not sure to be honest.

I guess it will have a cost & resources implication too - the whole process will be speeded up if there was more resources for us to use. But at present, we can only use what we have got.


ScrollingLeaves
It will depend on what the defendant has said in their interview or maybe a witness account may have said something similar. The victim provides a statement saying that they were attacked by a stranger and they have no idea who they were - but in interview the suspect states that they have know each other for years and were having an affair. He has deleted the messages off his phone as he didn't want his wife to know - but they may be still on the victim's phone.

[EmbarrassingHadrosaurus]

Interesting to see that some people have a sense of what it takes to begin addressing women's concerns.

Crisis-hit Met Police is taken into SPECIAL MEASURES: Britain's largest force is ordered to improve after Wayne Couzens' murder of Sarah Everard, the strip search of Child Q and Charing Cross scandals laid bare string of failures

• Today's news is a humiliation for the Met Police, which is now officially ranked among Britain's failing forces
• Move follows a wave of scandals under the leadership of Dame Cressida Dick, who stepped down in February

• The Met will now be put under enhanced scrutiny and required to come up with an 'improvement programme'

www.dailymail.co.uk/news/article-10961487/Met-Police-placed-SPECIAL-MEASURES-catalogue-scandals.html

[ScrollingLeaves]

Felix125 You make it sound like it is all so considered and necessary. But we know full well that what was going on was not reasonable or proportional.

www.bbc.co.uk/news/uk-49072302

^Another said police demanded seven years of phone data after she reported being drugged and raped by a group of strangers.
"My phone documents many of the most personal moments in my life and the thought of strangers combing through it, to try to use it against me, makes me feel like I'm being violated once again," she said.^

A woman who reported historic abuse that took place before the mobile phone era had her case dropped when she refused consent to search her current phone, the report says.

In another case, the Crown Prosecution Service demanded to search the phone of a 12-year-old rape victim - even though the perpetrator had admitted the crime. The case was delayed for months as a result.

[Felix125]

ScrollingLeaves
I'm not saying its easy for someone to do this, but if its raised as a defence - what can we do instead? The article does not stipulate any case where the phones were examined having not been raised as a defence by the suspect.

If its an historic report also - depending on what the dates of the offence are - they may need to look back at several years. But only necessary data will be disclosed to prove or disprove the defence.

One of the reasons why the phone is sent away for downloading so that an independent person will look through it and only disclose back to police & CPS what is needed - so it can be passed as a defence disclosure.

The 12 year old victim (it doesn't mention the age of the suspect, they may also be a similar age) - even if a crime is admitted - his defence can still stipulate a relationship between them which might be used by the defence in mitigation. This is then used for sentencing reviews.

Like I say - I'm not saying its easy and I have not seized a victim's phone yet that I can recall, but I'm not sure what the alternative is if such a defence is raised. The police & CPS are working on the side of the prosecution, but the prosecution has to be safe with all the evidence gathered and disclosed to a court/jury.

[EmbarrassingHadrosaurus]

I'm not saying its easy and I have not seized a victim's phone yet that I can recall, but I'm not sure what the alternative is if such a defence is raised.

To be fair, I thought you lacked any actual experience, based on your responses, but it didn't affect the confidence with which you asserted your preferred reality rather than read/accept the ICO report or recommendations.

In other news, after the news about the Met, this is unsurprising. Especially when one considers the level of denial involved at every level.

Three more police forces are in 'special measures': One in seven are now failing as the shocking crisis in policing is laid bare

• Three more police forces are being monitored due to poor performance
• Watchdog won't explain why police not performing or for how long
• Scotland Yard castigated for ‘systemic’ blunders by the police watchdog
• Six out of 43 police forces in England and Wales are under performing

www.dailymail.co.uk/news/article-10966957/Three-police-forces-special-measures-One-seven-failing.html

[Felix125]

EmbarrassingHadrosaurus
And do I have to a accept the report, when its doesn't detail the reasons why the phones were being seized?

Their recommendation that things need to change, citing the form that states.....‘Please authorise us to access any information we want’ when that form doesn't exists. Doesn't really give you any confidence that their recommendation is based on anything. Its not a case of me having a preferred reality.

But if you're going to fully investigate something as serious as a rape - you have to investigate the defence being offered by the suspect.

What would you prefer us to do in these cases?

[eurochick]

@sawdustformypony in civil case disclosure it is very common to take an image of someone's device and then search that for disclosable material. That doesn't solve the invasiveness issue, but it would at least stop victims being without their phones for months on end with consequences for benefits, etc.

[Unescorted]

My dad was raped by someone she met at a nightclub. The police took her phone and looked through all of her SM, messages and photos. She had only ever spoken to the rapist.

At no point did anyone explain why it was necessary to search her phone and question her about unrelated material they found. Top tip when reporting a rape do not refer to your best mate as your crackhead whore twin even in jest in historic texts.

If she had known how intrusive the reporting process was going to be she would not have reported it in the first place.

[Unescorted]

Dad = DD

[Charley50]

It seems to many women that this practice is designed to put rape victims on the back foot and limit the amount of rapes ending in convictions.

[Namenic]

@Felix125 - thank you for your insight into the procedures that need to be followed. Agree with @TheTonEffect about it being a result of the innocent until proven guilty feature of our justice system (which is a positive, but means that some guilty people will go free).

I think it is likely that money can be invested in a better system for downloading information that will result in less disruption for victims but also provide good quality evidence. Perhaps what we need is a locked-box service where all the material is downloaded but inaccessible unless specific applications are made. So - you can do all the formatting of the material (so it is presentable in court after the download).

@Felix125 - does the victims’ phone need to be wiped when a download of data is made? Perhaps we could think of a way to download data without this happening (eg only download messages up to x date).