Sometimes it’s right for the police to examine complainants’ phones. It’s called investigation.

Jeremy Corbyn, Shami Chakrabarti and Harriet Harman all have difficulties with the idea of complainants in rape cases being asked to hand over their mobile phones as part of the police investigation. Mr Corbyn has described it as a “disturbing move.”

It is nothing of the sort.

No change in the law has taken place. Instead, rightly stung by a series of recent cases in which evidence from mobile phones suggesting innocence was withheld from the defence until the last minute, the National Police Chiefs Council and the Crown Prosecution Service have agreed a standard form to give to complainants for use when investigating sexual offences.

It deals with those cases – not every case – in which the police believe that a complainant’s mobile phone should be examined as part of an investigation into a sexual offence.

Rape allegations almost always relate to incidents which took place in private. Without any independent witnesses juries can be left trying to decide who is telling the truth based upon little more than whether the complainant or the defendant looked the more plausible or shifty. Since most human beings are hopeless at spotting liars, this is a task fraught with the danger of producing the wrong verdict.

The smart-phone goes some small way towards solving this problem. Amongst the vast quantities of information stored, not just text messages, but photographs, videos, voice recordings, social media conversations and information about locations and timings, there is often material which may be relevant in a rape investigation.

That is why when a man is arrested for rape, seizure of his mobile phone is almost automatic. It will be carefully examined – with particular attention paid to embarrassing pictures and anything touching on his sex life – and it often throws an entirely different light on his account. Sometimes it is damning, sometimes it exonerates him, often it is equivocal.

It is highly invasive of his privacy, but that is in the nature of a criminal investigation. Whilst still innocent in law, a rape suspect loses all his privacy. If the police are doing their job properly, and considering all reasonable lines of inquiry, his home, his body, especially his genitals, and his phone are all searched for evidence. Nobody suggests for a moment that his right to privacy should trump the right of the complainant to have her complaint fully investigated.

She too inevitably surrenders much of her privacy when she makes a complaint. If the allegation she is making is of a recent rape, she too will probably be asked to undergo a forensic medical examination. However sensitively it is done, it is a ghastly process, but often an investigation cannot proceed without it.

Sometimes examination of her phone is equally, or even more, necessary for a fair investigation.

Yet for some reason, to say that the complainant’s phone should be scrutinised is considered by many a heresy: it is “deterring victims from coming forward,” it is exposing victims to a “digital strip search.” As Shami Chakrabarti put it:

Women, who are the overwhelming majority of rape victims, are already discriminated against in judicial system. A trawl through their social media only reinforces the idea they are in the dock.”

Her reference to “the dock” is revealing. The dock is where defendants sit during an English or Welsh criminal trial; it is not where a witness’s evidence is judged. A defendant’s evidence, like that of his accusers, is judged when he is in the witness box. It is the same witness box for both sides (albeit often replaced these days by a video link for complainants in sexual cases). Judges instruct jurors that they should “assess the witnesses for prosecution and defence by exactly the same fair standard.”

Lady Chakrabarti seems to be saying, on the contrary, there should be one standard for the man in the dock, and a different, more forgiving, standard for his accuser. She is happy that the man in the dock should have his phone investigated, yet appalled that the same thing should happen to his accuser. That is not a call for justice but for prejudice.

Most fair-minded people are pleased that we still have a system in which it is permissible for an accused person to say that he is innocent, and that his accuser is a liar; and a system in which the job of the police is – however imperfectly carried out in practice – at least in theory that of an impartial investigator.

Investigation, to coin a phrase, means investigation. It does not mean “believing the victim” and investigating only things that are likely to support her account.

There certainly are serious privacy issues that the police need to bear in mind. It is not all investigations in which mobile phone evidence is needed. There need be, and there is not, any question of a blanket requirement for complainants to surrender their phones.

Nor should there be, and there is not, any question of a complainant’s phone simply being handed over to the defence; all that will be disclosed is material that might legitimately undermine the prosecution case or support that of the defence. If we want rape trials to be fair it is very hard to see what is wrong with that.

 

(This piece originally appeared in the Spectator Coffee House blog on 30th April 2019)

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

18 thoughts on “Sometimes it’s right for the police to examine complainants’ phones. It’s called investigation.”

  1. The police don’t need to confiscate anybody’s phone, SIM card and all, preventing the suspect or the complainant from even calling a friend and asking for a lift home after any interview, and otherwise disrupting either witness’s life. Still less do the police need to stick that phone into a cupboard for months and years on end, as has happened, not only to phones, but also to every single computer found on searched premises. The police can simply borrow the phone for the few seconds or minutes it takes to take a back-up of the data on the phone. The back-up can be perused at leisure, and later emailed to the defence, if necessary.

    1. According to Section 22 (4) of the Police And Criminal Evidence Act 1984, the Police are bound to make a copy of the contents of the device. Case law would determine that a reasonable time for the police to do this would be 3 months.

        1. Sounds like you were just backing up some messages. The police need to obtain a full physical or logical extraction of a device, otherwise, they risk missing vital evidence through being selective.

          For a modern smartphone, that exercise is measured in hours.

  2. Well that would be all well and good if the Police force and CPS had any record of credibility in dealing with sexual assault victims but they don’t.

    https://www.cps.gov.uk/sites/default/files/documents/publications/dame_elish_angiolini_rape_review_2015.pdf

    https://www.ucl.ac.uk/criminal-law/news/2018/feb/welcome-metropolitan-police-failure

    https://news.sky.com/story/met-police-under-urgent-review-over-forensics-mishandling-11364101

    https://www.justiceinspectorates.gov.uk/hmicfrs/wp-content/uploads/crime-recording-making-the-victim-count.pdf

    https://www.telegraph.co.uk/news/uknews/law-and-order/10211978/Rape-victims-let-down-by-CPS-says-watchdog.html

    https://www.telegraph.co.uk/news/2018/07/12/policeand-prosecution-lawyers-fail-correctly-disclose-evidence/

    I would suggest that the correct way forward is that if the police have reasonable grounds to think that relevant material is on a complainants electronic devices they ask nicely and then go and get a search warrant if refused, from a judge mind, not a senior officer or Blue-rinser. A bureaucratic process to effectively demand access to devices will inevitably be operated in a way to deter victims from complaining. The police may complain that it makes life difficult and they have to work harder. But it’s the same as when they whine about PACE compliance… it’s a self-inflicted wound….

  3. As someone who had there mobile investigated, by forensics and club handed plod, I was confident that it would prove my innocence. It took that lack of evidence on my USB’s sticks, back-up drive and 2 computers to demonstrate thay had nothing against me. My new (puchased by me) top of the range phone was destroyed (by ‘accident’) when it was sent away, 2 days after seizure, under some bizarre event. It’s destination was determined under the auspices of the ‘Proceeds of Crime Act 2002’! They hadn’t realised that I was neither subject to prosecution or parked in front a judge. So, god (and they) only know how they came to their decision about my mobile phone destruction! Heyo, I was compensated with a cheque (but no return of the holiday snaps of my late father, whilst we were holidaying in Jersey).

    Any person who makes a claim/allegation of a serious offence, should have no difficulty in hand over their phone, unless they have something to hide.

    1. “Any person who makes a claim/allegation of a serious offence, should have no difficulty in hand over their phone, unless they have something to hide.”

      And that is about as close to idiocy as you can get.

  4. If someone claims they have been raped, and someone claims it was consensual, and there is no other evidence than each persons words. I can’t see why a reasonable person would think it was ok to examine a phone of one party, but not the others. Had the complainant in the Liam Allan case not had her phone examined, he may have been convicted. Some might argue it is better that the odd innocent person is sent to jail for many years and put on the sex offenders register for life, in order to prevent victims having to have their phones examined. Personally I think that is an extreme position to hold.

    In many cases we shouldn’t be deciding which person is the victim at such an early stage. And by labelling one person as a victim, and only examining the accused’s phone introduces bias. As such this inevitably leads to unsafe convictions.

    I do think there should be some agreement that when the device is examined, that the police will not look or even act upon evidence that is unrelated to the crime being investigated. For example text evidence of drug dealing, indeed illegal indecent images, should be ignored as it is not directly relevant to an accusation of rape. Such assurances would be one way to not deter victims from coming forward, can’t see that happening though.

  5. “I do think there should be some agreement that when the device is examined, that the police will not look or even act upon evidence that is unrelated to the crime being investigated. For example text evidence of drug dealing, indeed illegal indecent images, should be ignored as it is not directly relevant to an accusation of rape. ”

    Let’s take your arguement to another level. Where a ligitimate warrant, to search a premise of someone who is alleged to be (say) distributing class ‘A’ drugs, are Police officers to ignore the odd illegally held firearm, that is found, but not listed on the search warrant? Are we then expecting the Police to not add this ‘possession of a firearm without a licence’ to the charges for the purpose of prosecution? Are the Police then expected to ignore the weapons find? If someone is doing something illegal or in possession of something that breaches laws, surely it is illegal and the defendants should be prosecuted, even if something is found ‘accidently’.

    1. Valid points, my argument is flawed. Although I would imagine some would consider that guns would be related to drug dealing, and considered more serious than the actual dealing though. My concerns are they start looking for less serious things than the original complaint, and not just accidentkt find, but look for easy convictions. Someone accused of rape happens to have a photo of bestiality. They don’t bother pursuing the rape, but go for the image offense as it’s easier to prosecute.

  6. “Jeremy Corbyn, Shami Chakrabarti and Harriet Harman”: I’m a bit puzzled. Harman, OK: she used to act for a paedophile group so she might be supposed to know something about sex crimes and the law.

    But the other two are famous mainly as anti-semitism denialists – what bearing does that have on rape?

  7. Every time I’ve seen this subject raised on television by those championing victims’ privacy, not one of them has mentioned the practice of examining a rape victim’s vagina for traces of semen. Presumably because mentioning it would contextualise the practice of examining a phone for evidence in a way that might undermine their argument.

    1. “Intimate examinations take place when a person makes a complaint to the police of rape or sexual assault. After you have been interviewed by a specially trained officer called a ‘SOLO’ (sexual offences liaison officer), you will have the opportunity to have a medical examination.

      Consent is the key word here. If you prefer, you can ask for a female examiner – and we will do our best to provide one. If this is not possible – you can ask for a female nurse chaperone. This is what I would advise. You can also bring someone you trust in with you – your mum, your friend, your support worker. That is ok too. The order of the day is to get this examination done as efficiently and quickly as possible.

      The doctor, who is called a forensic physician (FP), will already have been briefed by the SOLO. This means that you do not have to repeat your story. The FP will go through what consent actually means in this type of examination – this is to prepare you for the legal process. You can withdraw your consent at any time during this process – you will not offend anyone. We will all be in complete support of you from start to finish.”

      http://edinburghrapecrisis.wixsite.com/ercc/single-post/2017/04/20/What-happens-at-a-forensic-medical-examination-following-a-rape-or-sexual-assault

      So in this case there are multiple repeated chances to decline and the absolute certainty that it is not a police officer doing the examining.

  8. Thank you to Barrister Blogger for posting this. I find it shocking how the whole of the mainstream media are presenting this story in a completely one sided way. The MSM position seems to be that as rape convictions are low we should do whatever to increase the stats.

  9. “Sometimes examination of her phone is equally, or even more, necessary for a fair investigation”. It would be helpful to explain when such examinations are necessary and to what extent the contents are revealed to a defendant. Is there scope for seeking an order from the court before the victim’s phone can be taken and copied, or is it a decision always made by prosecutors and police?

    If a woman is sexually assaulted by a stranger, is the examination of her phone necessary simply to see whether she texts the assailant afterwards to thank him? Or texts a friend to say “I had a lovely time last night, met a stranger who did some nice things to me”? If there are no such texts on the phone, will it be regarded as valuable defence material if she has spoken about other sexual experiences or flirted with other people? How about if there are important messages on the phone, such as discussions with loved ones who have died, and the victim wants an assurance that these messages of sentimental value will not be deleted? Can such an assurance be reliably given?

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