Police are taking “excessive amounts of personal data” from victims’ phones, a watchdog has found, amid warnings that rape complainants are dropping out of prosecutions because of the intrusion.
Elizabeth Denham, the information commissioner, found that call logs, photographs, location data and internet browsing history was being extracted, stored and shared “without legal basis” in some cases.
“Current mobile phone extraction practices and rules risk negatively affecting public confidence in our criminal justice system,” Ms Denham said.
“People expect to understand how their personal data is being used, regardless of the legal basis for processing.
“My concern is that an approach that does not seek this engagement risks dissuading citizens from reporting crime, and victims may be deterred from assisting police.”
The report warned of variation between different police forces across England and Wales, leaving them with inconsistent rules for authorising and overseeing data extractions.
It said that for sensitive information to be gathered, it must be “strictly necessary for a law enforcement purpose” and the victim or witness must consent.
But it warned that consent cannot be “freely given” if complainants are being pressured by officers or believe that their refusal will affect how the case is handled.
“During times of high trauma studies show it is unlikely that a victim will, because of trauma, be in a position to make a fully informed, freely given rational decision that amounts to consent,” Ms Denham added.
Several rape victims have reported being told that their attackers would not be caught unless they handed over their phones, and disclosure forms rolled out last year said: “If you refuse permission for the police to investigate, or for the prosecution to disclose material which would enable the defendant to have a fair trial then it may not be possible for the investigation or prosecution to continue.”
Existing data processing forms are to be replaced with new information notices for complainants and witnesses in the coming weeks in light of the information commissioner’s report.
A woman who was raped by a stranger in London previously told The Independent she dropped her case after police demanded access to her mobile phone.
“It made me very angry, it made me feel like I was the one on trial and they were trying to seek out ways it was my fault,” Sarah* said, adding that she was concerned evidence of past one-night stands could be used against her in court.
Another woman who faced the same demand after the Metropolitan Police had identified her attacker using DNA told The Independent the investigation felt like “one intrusion after another”.
Jane* said: “I’m not actually sure I would have gone ahead with the case if I’d known what was part of the process.”
In another case, the Crown Prosecution Service (CPS) demanded to search the phone of a 12-year-old rape victim despite the fact the perpetrator had admitted the crime. The case was delayed for months as a result.
A different woman reported being drugged and then attacked by a group of strangers, but the case was dropped after she refused to hand over seven years of phone data.
In 2019, only 1.5 per cent of more than 55,200 rapes recorded by police in England and Wales were prosecuted.
The most common outcome was listed as “evidential difficulties (victim does not support action)” at 41 per cent, followed by other “evidential difficulties” (14 per cent), and no suspect being identified (8 per cent).
In a report on rape cases published in December, HM CPS Inspectorate found that complainants’ refusal for police to access their phones, social media accounts or personal records played a part in officers taking no further action in several cases even though they were “otherwise fully engaged”.
Some police officers have told victims that the CPS was demanding more evidence following a 2017 scandal over collapsed rape cases, where messages and photos that acquitted suspects were not disclosed.
The CPS has denied any change and said it applies the same legal and ethical code to all crimes.
Digital devices can be demanded from people reporting any crime, but officials admit that the move is more likely for sexual offences because they are often committed with no witnesses or other evidence.
Depending how data is extracted, phones may be given back within hours or kept until the end of criminal proceedings months or years later.
During court cases, victims’ communications and personal material may be passed to the defence team – even if there are protections against it being used in open court.
Claire Waxman, London’s victims commissioner, said current laws were no longer “fit for purpose” because of the explosion in personal data held on phones.
“We still need to understand how these requests from the police and the CPS for excessive personal data is fuelling high levels of victims withdrawing from cases,” she added.
She called for clarity on how police can comply with data protection laws and make “victims to feel confident when reporting a crime that their data will not be used to discredit them and will be handled securely and with respect”.
The information commissioner made a series of recommendations for police and the CPS to improve compliance with data protection laws and “regain some public confidence that may have been lost”.
Ms Denham called for a new code of practice, adding: “The work needed to implement my recommendations must not fall by the wayside.”
In a joint statement, the National Police Chiefs’ Council, CPS and College of Policing said: “Police investigators must balance the need to follow all reasonable lines of enquiry, guaranteeing a fair trial, with the need to respect privacy.
“We thank the Information Commissioner for this detailed and thoughtful report which acknowledges the complexity of this issue, and the growing volumes of data which exist in criminal cases. We will now carefully consider the recommendations of the report.”
*Names have been changed to protect victims’ anonymity