When Courtney* reported a “sadistic and predatory” sexual attack two and a half years ago, her case was dropped because she refused to allow police to download the full contents of her mobile phone – even though there had been an eyewitness testimony from the night of the assault, and an alleged second victim of the same attacker.
“I think part of the reason I was left so psychologically damaged was the feeling that I had no power in the assault, and then I had no power as a citizen trying to get justice,” she told the New Statesman.
Courtney isn’t the only rape complainant who has been forced to hand over their data to the police. In April, Digital Processing Notices were rolled out across England and Wales. The controversial “consent forms” require complainants of sexual assault to allow police to download and examine the contents of their electronic devices. Any evidence of criminal activity discovered in the digital search, even if unrelated to the rape allegation, might result in prosecution.
The notices effectively nationalise something that was until recently done by individual forces. The Crown Prosecution Service claims that the national policy “seeks to bring consistency” across different police forces. According to Katie Russell, a spokesperson for Rape Crisis England and Wales, the new forms have “entrenched” the practice – and “wholesale” data downloads are becoming “increasingly common and even routine, even where it’s hard to see any ‘reasonable line of enquiry’”.
In an era where technology is an increasingly ubiquitous part of everyday life, the photographs, text messages, internet browsing history and location data stored in our electronic devices contain a wealth of sensitive personal information. This digital trail has never been collated so concretely, or in such volume. Campaigners argue that the download requests amount to a “digital strip search”, which is wider in scope and often more intrusive than its physical equivalent. Data protection group Big Brother Watch recently published a report examining the policy in detail. The group’s director Silkie Carlo has described the practice as a “gross invasion of victims’ privacy and an obstruction of justice”.
The Crown Prosecution Service claims that the orders make clear that “police and prosecutors must only request data in order to follow a reasonable line of enquiry, which means when it forms an essential part of a fair investigation and prosecution”. But Vera Baird, the victims’ commissioner for England and Wales, says the orders put rape complainants in a difficult and stressful situation; unless they sign the entire contents of their mobile phone over to police, they risk seeing no further action on their case. “These are likely to be traumatised people who have gone to the police for help”, Baird said in a press release.
According to campaigners and rape victims, complainants are increasingly being told that if they refuse to comply with data requests, their cases might be dropped. Olivia* told LBC radio that she was asked to hand over her mobile phone to police after reporting being assaulted by a group of strangers. She was willing to hand over data relevant to the attack, but refused when asked for an entire mobile phone download.
“They told me that if I didn’t consent that they may just drop the case and may not proceed with it,” she said. “They have now dropped the case citing one of the reasons being that I have not handed over seven years of my life, which is of complete and utter irrelevance to that one night”, she said.
Courtney said the branding of the notices as “consent forms” was “almost Orwellian”. She explained: “it’s not consent if you are in shock. It’s not consent if justice is being held over your head”. “It’s disgustingly ironic,” she added, that “this group that should understand what consent means, and are dealing with victims of a crime that have been victimised because of a consent issue, are then coercing them to sign these documents at moments when they are often in shock.”
Campaigners think the notices were issued in reaction to a few high-profile rape cases collapsing after evidence was later disclosed showing that the allegations were false. Last year, Liam Allen, who was accused of rape, was acquitted after text messages sent by the complainant were disclosed nearly two years into the investigation.
Yet false allegations are still incredibly rare. The CPS’s most recent figures show that just 0.62 per cent of rape allegations are judged false. Downloading the contents of complainants’ mobile phones is unlikely to reduce this already tiny proportion. As Russell explains, the notices will “inevitably put even greater pressure on police resources and capacity”, leading to “even longer delays in sexual offences cases”.
And new research into London’s rape cases, conducted by the Mayor’s Office for Policing And Crime and the University of fWest London, shows that just 3 per cent of rapes that are reported result in a conviction. The London Rape Review showed that just 6 per cent of rape cases made it to trial. (The report’s sample is taken from before the Digital Processing Notices were introduced, and the real number of withdrawals could now be higher).
Earlier this year, the proportion of reported rapes prosecuted across England and Wales plummeted to 1.7 per cent. Campaigners argue that the processing notices may further deter victims from coming forward if they feel they’re being treated like suspects. By using victims’ mobile phones as character references for their accusations, the police perpetuate pervasive myths that a large number of sexual violence allegations are false. Currently around 85 per cent of rapes go unreported.
Courtney says that speaking out about her experiences with the criminal justice system has helped her feel like she has regained some form of control. She hopes that changes will be made so that the frequently mentioned “reasonable line of enquiry” is applied only in cases where it is actually reasonable.
When she reported her attack to police in 2016, she felt hopeful that there was “a system in place to make victims [feel] comfortable and supported”. Two and a half years later, however, she no longer has this faith. “If it happened to me now, today, would I report it? Probably not.”
*Names have been changed
Grace Morgan is a Danson Foundation intern at the New Statesman.