It was announced yesterday that police forces across the UK will now be seeking the consent of complainants to examine their mobile phones where their allegation is one of rape or sexual assault.
In some cases, if they refuse, this may jeopardise the chances of a prosecution. It is unclear as yet how this new request will unfold in practice, however it is an initiative generally welcomed by defence practitioners, certainly those of us who specialise in defending sexual allegations.
Predictably this news has drawn a very mixed response from the public and commentators alike some of whom consider it an outrage that the removal of a phone at a time of extreme stress will cause a person to feel further violated and that this request, if complied with, is an extreme breach of privacy.
It is of note that the DPP, Max Hill, has stated that this request would only be made where examination of the devices was a‘reasonable line of enquiry’. These cases would therefore generally be limited to cases where the parties were known to each other or where there was reason to believe that messages may exist that might legitimately undermine the complainant’s case and/or support the suspect’s defence.
The world has changed very dramatically since the widespread use of smartphones and police investigations have had to adapt to this. That said, any adaptation is hampered by police under resourcing and the downloading and examination by police of even more material will sadly serve to lengthen investigations into sexual allegations that are already woefully slow and protracted. Suspects in these cases can remain under investigation for months, even years before an outcome decision is made. This is traumatic for both the accuser and the accused.
Those commentators expressing discontent at this new development have clearly never practiced in criminal defence. Rape survivor and author Winnie M Li, who undoubtedly does great work in her support of rape victims, is wrong when she says “ all of the information you’re going to acquire from a victim’s phone….. that’s still not going to be evidence about whether or not a rape was committed”. I have defended many clients where the texts we have sought by way of disclosure from a complainant’s phone have been so at odds with the facts given in his/her victim statement that the Crown have dropped the case as, having reviewed the messages, a successful prosecution is no longer viable. The case of Liam Allen thankfully brought this issue very much to public attention.
Surely everybody would agree that it is critically important that a full and thorough investigation takes place and that it is balanced. That is in both the public interest and of course the interest of justice. Suspects routinely have their phones confiscated and examined in all cases involving rape allegations. They too feel their privacy is being invaded and certainly the removal of their phones is greatly inconvenient. Smart phone communication in this era is such an integral part of daily life that communication between or about relevant parties should indeed be reviewed at the investigative stage as opposed to way further down the line at the crown court trial stage.
Some phone interrogations will yield highly relevant information, some will not however an investigation is just that, an investigation, and not as some sections of the press would have you believe, a determined quest to prove a suspect’s guilt.
In the end, the evidence will speak for itself.
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