Police chiefs claim the introduction of written consent forms is a “step forward in the right direction” and will reduce the current confusion in the system.
Max Hill, the Director of Public Prosecutions, said digital devices will only be looked at when it forms a “reasonable line of enquiry” and only “relevant” material will go before a court if it meets “hard and fast” rules. He said he hoped ultimately it would lead to more successful prosecutions for sexual offences.
Under the current legal framework the police have no legal power to seize a phones or digital devices from a complainant.
Giving details of the new system, Assistant Commissioner, Nicholas Ephgrave, the NPCC Lead for Criminal Justice, explained that accusers “have the opportunity if they are uncomfortable with that for whatever reason to say ‘I don’t want that to happen’ and record the reasons why.
“But we also make clear on the form that if that is the position they adopt for whatever reason it may not be possible for a prosecution to proceed.”
Once written permission is given allowing officers to examine and download anything relevant the data, no matter how private or personal, could then be shared with their attacker’s legal team under disclosure rules.
The new forms will not deal with the resourcing issues that senior officers have complained leave police struggling to sift through thousands of messages.
The Centre for Women’s Justice is launching the legal challenge alongside the two alleged victims arguing the consent form discriminates based on sex, breaches the Data Protection Act and the right to privacy.
Harriet Wistrich, founder of the CWJ, said that whilst complainants understand the need for relevant material to be examined it is “disproportionate” for their entire lives to be downloaded.
“We seem to be going back to the bad old days when victims of rape are being treated as suspects,” she said.
Her concerns were backed by Claire Waxman, Victims’ Commissioner for London, and Vera Baird QC, the lead on victims for the Association of Police and Crime Commissioners, who have complained to the ICO about the policy.
Ms Baird said that there is a “public safety issue” that could see serial rapists walk free if victims do not come forward because they don’t want every element of their private life examined.
“This is not consent,” she warned. “This is an authority figure asking you to sign a form as soon as you have finished an interview reliving what is one of the most horrific experiences of your life.”
She said the forms are just part of the problem as police and prosecutors look to harvest third party material, such as school records and medical notes.
Ms Waxman said that she was also “hugely concerned” by the requirement for complainants to “sign away their rights to privacy” in order for the case to proceed.
“We already know that victims who decline to grant access are having their cases dropped at alarming rates, while new Home Office figures show the proportion of rape cases being prosecuted nationally has drop to a low of just 1.7 per cent,” she said.
However, justice campaigners warn that if the accused cannot see all of the evidence pertaining to the case then there is a risk that innocent people will be convicted.
Nigel Evans MP said that the importance of disclosure was highlighted by a number of cases including that of Liam Allen, a student who had the charges against him dropped after messages from his accuser were revealed during his 2017 trial.
“I understand that there may be discomfort into handing this information over,” Mr Evans said. “But that is nothing compared to the pain and torture that those who are wrongfully accused face.”
A spokesman for the ICO said they are looking at “concerns raised around the collection, secure handling and the use of serious sexual crime victims’ personal information” and how that information travels through the system
“These are ongoing investigations and we will be reporting on the outcomes in due course,” she added.
A spokesman for the CPS said: “Mobile telephones should not be examined as a matter of course and we have made that very clear in our guidance to police and to prosecutors. “However, in circumstances when it is necessary – both for gathering evidence and meeting our disclosure obligations – we hope the clearer information we have provided will help complainants give free, specific and informed consent.”