Police could be banned from making intrusive searches of rape victims’ phones

Police officer phone search - Monkey Business Images/iStockphoto
Police officer phone search – Monkey Business Images/iStockphoto

Police face new laws that will ban intrusive searches of rape victims’ personal records and phones under a government shake-up to reverse plummeting prosecution rates.

Writing in The Telegraph, Sarah Dines, the safeguarding minister, announced that any police officer investigating rape will be breaking the law if they make “unnecessary” or “disproportionate” requests for a victim’s medical, school or counselling records.

Rape victims will also get a new legal right to be told why and what is being requested, and how it will be used, in order to reduce the number who drop out of prosecutions because of intrusive requests by police.

This came on top of legislation banning invasive searches of victims’ mobile phones or other digital data and gives them a legal right to refuse to hand over devices without fearing police will halt their inquiries.

The moves reflect a major shift in the approach to investigating rape from testing the credibility of a witness to focusing on the past behaviour and actions of the alleged attacker.

Any officers who break the new law, and a code of practice that will set out how the legislation will work in practice, will face fines by the Information Commissioner for invasion of privacy, a legal challenge in the courts and disciplinary action by their police force.

The news came amid a huge increase in reported rapes in the wake of the rape and murder of Sarah Everard, who was kidnapped in 2021 by Wayne Couzens, a serving Metropolitan police officer, in London.

Wayne Couzens Sarah Everard police rape murder victim justice - Metropolitan Police/PA Wire/Family Handout/CPS/PA Wire
Wayne Couzens Sarah Everard police rape murder victim justice – Metropolitan Police/PA Wire/Family Handout/CPS/PA Wire

Sexual offences rose 21 per cent to 196,889 in the year to June 2022, the highest number on record according to the Office for National Statistics. Yet, just 1.5 per cent of rapes and 3.1 per cent of sexual offences resulted in the perpetrator being charged.

More than 50 per cent of victims drop out of cases partly because of intrusive investigations into their past and behaviour, and fears of having to relive the trauma by giving evidence in front of their alleged attacker in court.

Ms Dines said it was “wrong” that victims of some of the most traumatic crimes were having significant amounts of their personal records “unnecessarily” requested.

“It is paramount that investigations focus on the suspect, not on trying to disprove the account of the victim,” she writes below.

“As safeguarding minister, I know that radical change is needed in the way the whole criminal justice system deals with rape cases. Through the Rape Review, we took a long and hard look at the system and committed to making such changes.”

She added: “Access to these [personal] records can be a vital part of an investigation, but it can slow things down. We have also heard concerning reports that these requests can be overly invasive, pertaining to information that is not relevant to the inquiry and that victims do not feel their privacy is being respected. This is unacceptable.

“We will rectify this situation by introducing new legislation that will ensure the police can only request such information when it is necessary, proportionate, and as part of a reasonable line of inquiry.”

The moves were welcomed by Dame Vera Baird, the former Victims’ Commissioner, who warned that rape has been effectively decriminalised by the plunging prosecution rates.

She said that it would refocus investigations away from the victim’s past.

Dame Vera added that ministers should consider giving women automatic rights to legal advice to support them in any disputes over access, and make requests for therapy notes subject to judicial oversight because of their sensitivity, as happens in Australia.

The Government has also backed the national rollout of Operation Soteria to enshrine in police practice the offender-centred approach to investigations, and of pre-trial video recording of victims’ evidence to spare them the trauma of appearing in court.

Police are also committed to returning victims’ phones within 24 hours.

Sarah Dines safeguarding minister - David Woolfall
Sarah Dines safeguarding minister – David Woolfall

Vital new rules will put victims at the heart of the investigation

By Sarah Dines, the minister for safeguarding

Rape and sexual assault are among the most traumatic of crimes, and the impact inflicted on survivors goes far beyond the incident itself. We must not underestimate the psychological stress victims face in the aftermath.

It is vital that we do all we can to ensure justice is delivered. That means swift yet thorough investigations.

It is also paramount that investigations focus on the suspect, not on trying to disprove the account of the victim.

As safeguarding minister, I know that radical change is needed in the way the whole criminal justice system deals with rape cases. Through the Rape Review, we took a long and hard look at the system and committed to making such changes.

One concern raised was around victims’ experiences of how their personal information is used during an investigation, especially their personal records. This is called “third-party material” and can be anything from medical, educational or social service records to counselling notes.

Access to these records can be a vital part of an investigation, but it can slow things down. We have also heard concerning reports that these requests can be overly invasive, pertaining to information that is not relevant to the inquiry and that victims do not feel their privacy is being respected. This is unacceptable.

We will rectify this situation by introducing new legislation that will ensure the police can only request such information when it is necessary, proportionate and as part of a reasonable line of inquiry. Victims will also be told what information is being requested, and why and how it will be used.

This vital legislation will put victims and their needs at the heart of the investigation.

Challenging ‘rape culture’

Of course, we need to go further. This is part of a whole-system response to improving rape investigation outcomes, and we’re already seeing real progress.

After legislating in the Police, Crime, Sentencing and Courts Act to address concerns surrounding data extraction from victims’ devices during investigations, and funding innovative digital forensics solutions for police forces, we are well on the way to ensuring victims are not without a phone for more than 24 hours.

We are also funding the ground-breaking Operation Soteria programme, which promises a radical transformation in the way the police and Crown Prosecution Service approach rape cases. The early adopters have made significant improvements and I look forward to seeing this replicated further across England and Wales.

Another way we are protecting the wellbeing of victims during trials is by offering pre-recorded evidence for rape victims in every Crown Court in England and Wales, sparing them the trauma of testifying during a live trial.

We will also quadruple funding for victim support services to £192 million a year by 2025. This will include money for the recruitment of 1,000 independent sexual violence advisers – individuals who are dedicated to making sure the needs of victims and survivors are met throughout the criminal justice process.

However, this issue goes far wider than the criminal justice system – we need major societal change. This means challenging so-called “rape culture”. It means targeting perpetrators and protecting those who have been victims of these terrible crimes. They include far too many women and girls, but also men and boys.

This won’t happen overnight. But with steely determination, we will deliver the changes needed to fulfil our duties to victims and survivors, and protect the most vulnerable in our society.

Published by anthonyhayble

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