Yesterday’s news that victims of rape and sexual assault in England and Wales are among those who could be required to hand over their phones for scrutiny as a precondition for getting justice is a very worrying development.
It is hardly going to encourage people to come forward if they have to allow Police to trawl through their entire public and private social media and many will fear that material which is entirely unrelated to the offence could be used in evidence. You also need to take into consideration that messages sent could be used to imply consent that simply was not there at the time the offence was committed.
Victims fear that giving defence lawyers access to their data will simply mean that they will face the sort of character assassinations in court that women who dared to wear short skirts in public used to get.
There is nothing about a person’s clothing or behaviour that ever justifies rape. End of.
What has been interesting is that many of the usual media suspects have published articles opposing this policy.
An anonymous writer int he Guardian describe her experience.
Even though some time had elapsed between the assault and my reporting of it, there was evidence that the police acknowledged as compelling. Despite this, my case was dropped not because of an unlikely prospect of conviction, but because I refused to hand over my mobile phone to be downloaded in its entirety.
I consider that request to be a gross violation of my human rights. What is on my phone is private and irrelevant to the crime that was committed. But I know that it has the potential to be used to humiliate and discredit me on the stand. It will be the digital version of the “short skirt”. This is why I have started a legal case against the government with a team from the Centre for Women’s Justice, including Harriet Wistrich. This has the potential to change how victims of sexual assault are treated when they report incidents to the police and will encourage more to do so in the knowledge they are protected.
The way I have been treated by the Crown Prosecution Service has affected me deeply. In the years of dealing with intrusive requests from the police, such as asking for my counselling or medical records,
It has always been difficult for people who have been raped or sexually assaulted to get justice. There simply isn’t enough anger and willingness to rectify this around. The conviction rate is terrible and fewer cases are being taken to court as this Guardian report from last September shows. The message that sends to victims does not inspire their confidence in the system.
In the Commons yesterday, Ed Davey expressed his concern that the move would deter victims from coming forward, asking Minister Nick Hurd::
In September last year, the Government published, with great fanfare, the victims strategy, but it is very hard to believe that those who wrote the document published today have read the Government’s own policy for victims. Given the huge number of women and men who have experienced sexual violence and are not reporting it—according to the Office for National Statistics, 87% of people suffering sexual violence do not report it—is it not vital that we ensure that nothing is done to prevent people from coming forward, that this document is reviewed, and that the Minister takes personal responsibility for ensuring that it is reviewed in the light of the Government’s strategy and what the House has said clearly today?
Liberal Democrats should strongly oppose these shifts in policy and encouraging action that will give people confidence to report these horrendous, life-changing crimes.
* Caron Lindsay is Editor of Liberal Democrat Voice and blogs at Caron's Musings. You can find her on Bluesky at caronmlindsay.bsky.social
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The first tenet of our legal systems is that an accused person is innocent until proven guilty.
With such emotive crimes as child abuse and murder, together with most sexual crimes it is becoming increasingly difficult to ensure that the focus is on a fair trial, either resulting in a safe conviction or aquittal (leading to the innocent person being able to continue with their lives as if their character had not been questioned).
There have always been, and no doubt always will be, those people who for what ever reason (revenge, mental illness, jealousy etc) decide to make false claims of a crime being perpetrated. In the era before instant mass communication (pre-internet) these people would be less of a menace to society in general and with reporting restrictions being more effective, the character and livelihoods of the wrongly accused were not trashed forever. “it is the few that spoil it for the many” is a very apt saying.
As with the death penalty, a liberal democracy should also look to protect the innocent victims of a false allegation that would effectively result in a similarly final judgement if found guilty. There are many cases coming to light from the 19th and 20th centuries of people being executed for murders that they never could have committed, or of those whose convictions were based on really flimsy evidence.
I understand how harrowing it must be for anyone who has been violated to have the courage to report the crime to the police, and then to have to undergo medical exams etc.
These same people though must accept that if they unwittingly accuse an innocent person, that that person is also a victim, and will be treated far worse than they themselves will be during the ongoing legal processes, possibly not only losing their freedom, but their job, family and home too.
Should we subject victims of crime to more pressure, of course not. We do have to ensure though that no one is convicted of a crime they have not committed.
Ultimately, if the wrong person is convicted, or the conviction is deemed unsafe, It is the victim themselves that may have to suffer more if their case has to be re-opened or a new trial undertaken.
It is now a fundamental principle in English and Scottish law that all evidence has to be made available to the defence. The prosecution is not allowed to pick and choose what evidence to present before the court, and what to keep hidden. The question of messages on phones and computers etc is particularly relevant if the accuser and the accused have a long standing relationship.
In 2017 student Liam Allen was within hours of being convicted on serious rape charges, which would probably had led to a long prison sentence, when “57,000 texts” were released to his defence team at a late stage in the procedings. There was also a late change in prosecution counsel. The new counsel agreed to disclose evidence which had previously been withheld.
These texts showed Liam’s total innocence, showing the alleged victim had pestered him for “casual sex” but had become angry with Liam when he declined to take the relationship further than she had wished.
https://www.bbc.co.uk/news/uk-england-42873618
Following on from my previous remarks about Liam Allan, I might add that he hasn’t let his wrongful accusation go without making his experience widely known. The change in the rules re phones, tablets and texts is a direct result of his campaigning and needs to be understood with his case in mind.
As David Webberley and we all acknowledge, it is harrowing for victims of rape. It is at least as equally harrowing for victims of miscarriage of justice. There does need to a sensible balance struck between the rights of the accuser and rights of the accused.
If anyone would like to discuss the details of Liam’s case with him in person I can recommend the next public meeting of Innovation of Justice, and at which I may be speaking myself. But on a different topic and nothing to do with economic theory 🙂
https://www.eventbrite.co.uk/e/innovation-of-justice-london-tickets-48516808079
I have no idea of the numbers of false accusations of rape per year as against the numbers of men and women who do not report a rape because of the fear of going through a harrowing court case, but given the publicity that the 2017 case generated I believe that one case against hundreds is probably near the mark.
If people are raped and then don’t report it from fear of how they will be treated that is just as much of a miscarriage of justice as someone falsely accusing a person of rape.
At the moment I believe the balance of justice is too much in favour of the rapist, in fact it always has been the case. Since my teenage years I’ve been aware that women are judged by their clothes, their sexual history and the amount they drink and are found to be at fault if they have been raped, unless their behaviour resembles a nun. I thought it was getting better but the 2017 case seems to have influenced police practice more than it should have done. People shouldn’t have to hand over their phone unless there is a specific reason for doing so.
If we really want to do something to address the appalling levels of rape and assault, we need to address seriously the reasons why fewer than 10% of cases are prosecuted.
And the immediate leap by (male) contributors to “innocent until proven guilty” and “allegations might be false” is surely part of problem.
The first step always has to be to believe the victims. They too are innocent until proved guilty, and the assumption that they are the ones who are lying is even more of a failure of natural justice.
The number of false allegations is *tiny*.
Because it is so small, there is little evidence. A figure of 3-4% has been suggested.
A CPS report from 2013 states:
“between January 2011 and May 2012…there were 5,651 prosecutions for rape, and 35
prosecutions for making false allegations of rape”
https://www.cps.gov.uk/sites/default/files/documents/legal_guidance/perverting-course-of-justice-march-2013.pdf#page=6
And that figure of five thousand prosecutions vastly understates the problem:
The ONS report “Crime in England and Wales: year ending December 2018”
https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bulletins/crimeinenglandandwales/yearendingdecember2018#toc
states there were 57,600 cases of rape, and a further 102,140 other sexual offences.
Fewer than 10% of these will go to trial. Not because the allegations were false, but because victims were too traumatised by the process, and too scorned by the public – including back-seat lawyers with their shouts or “innocent until proved guilty”.
Caron is absolutely correct here – this suggestion is a terrible intrusion on people who are already victims.
*I* would not want my phone and computer to be seized by the police and scraped for every last flirtatious remark, doubly so knowing that the police will then by law share everything with the lawyers for an attacker.
We must do something to address a culture where nearly sixty thousand rapes happen and people react with “thy might be lying, you know”.
We should be ashamed.
“Rape victims should not have to hand over phones to get justice”
The corollary to that is that the ‘police shouldn’t pursue all reasonable courses of inquiry including those that might identify evidence which could acquit as well as convict’
And that is equally problematic.
DIsclosure is not the same as admissible evidence. The entirity of a phones content wouldn’t be disclosed to a defendant. And there are very very significant rules about cross-examining a victim on past sexual history for example.
There is also an ongoing issue about access to past medical records. But that isn’t consistent across all police forces. See – https://www.theguardian.com/society/2018/sep/25/revealed-uk-police-demanding-access-data-potential-rape-victims.
This is a policy thing for particular forces which people can change – would be a good campaign for LIb Dems to run if they did run campaigns any more.
I was raped. I didn’t report. What would be the point? There were no witnesses. I was in a relationship with the person. It was a hidden, dark thing in a hidden, dark room. It was a person taking away my right to bodily autonomy, and nobody saw him do it, and who would believe me if I told them?
This is the reality for most people who are raped: it’s someone they know, it happens behind closed doors, it can’t be proved. So why bother reporting?
And if you do report (about 10% of people who are raped do) and the prosecution goes ahead (about 10% of reports), and you get a conviction (less than half of prosecutions)… you’ll still get people like the two commenters above saying “well of course we can’t REALLY know what happened, and false allegations, you know…”
What’s the point in going through all that trauma, just to be publicly scorned?
This “you must hand over your phone” guideline is just the icing on the cake.
Caron lets do a thought experiment and suppose that a close male relative of yours is accused of rape. He is required to hand over his mobile phone to the Police but his accuser or to use what appears to be your preferred term victim is allowed to withold her mobile phone from examination. This that justice?
Why is it there are always so many men willing to stand up for the right of a man accused of rape to be presumed innocent until proven guilty – when not one of those men is ever willing to stand up for the right of the woman raped and declare her to be presumed innocent – and therefore telling the exact truth – until she is charged with a crime?
I understand why so many people are instinctively hostile to this idea. However the reality is that, after last years miscarriages of justice, any defence lawyer worth his salt only has to stand up in court and say “I believe that there may be messages on the young ladies phone which support my clients case”. If, assuming that is plausible, the woman involved refuses to hand over the phone, the judge may well throw the case out.
In my judgement the police are trying to avoid cases collapsing half way through by making sure all the possible evidence is out there before the case comes to trial. they are not in the business of harassing victims.
From what I’ve heard from the various discussions on this topic, the real issue is the threat contained in the new information access consent, which otherwise seems to be simply about bringing police access to personal information of rape victims into line with access rights they already have in other criminal cases.
I think the real question is if you are a victim of a crime and you refuse to help police with their enquiries and thus knowingly potentially withholding evidence, what does this say about how seriously you actually regard the crime and want the person you think did it, convicted.
Given the evidence from Liam Allen’s trial, we can expect any defence counsel to ask for disclosure and then question why there has been none, remember you may have the right to remain silent, but it may be used against you…
There are people (predominantly men, but not always) who can imagine themselves being accused of rape, but can’t imagine themselves being raped. These people tend to be very vocal about the rights of the accused, because that is who they identify with: “how would I feel if I were falsely accused of rape?” And to be fair, it’s true, a person should not be convicted without good evidence.
But nor should the immediate, reflexive, and irrevocable accusation of liar be levelled at someone who says they’ve been raped. As Richard says, this is also an injustice. And if the people who can easily imagine themselves being falsely accused had just a little more imagination they might see this too. Because, of course, when those who are seen as unlikely to be raped – big, strong, manly men get raped too – they are the ones who suffer from the culture of disbelief most of all.
@Jane Carnall,
“Why is it there are always so many men willing to stand up for the right of a man accused of rape…….”
We need a system which keeps people like Liam Allan out of jail but puts real rapists into jail. No system can ever be perfect and so you do have to decide whether it is better that it errs on the side of innocence of guilt.
The law does recognise its own imperfection in what is known as Blackstone’s ratio which says It is better that ten guilty persons escape than that one innocent suffer. I doubt those who are arguing against evidence based justice, on this posting, as they are, will see it quite like that though. And evidence is evidence. It doesn’t matter on whose mobile phone it is held. If it helps get the right result then it should be of prime importance.
Call me old fashioned if you like, but I’ll stand up for anyone, man or woman, to be judged rationally on the evidence alone. We can’t hound someone just because we think they possibly are guilty of something. Remember Colin Stagg and the Rachel Nickell case? How close was he to being locked away for life?
https://matthewhamlenisinnocent.wordpress.com/2017/06/04/the-rachel-nickell-case/
Surely as with much , it is about a balance.
We rarely utilise the phrase , “balance of powers.” We do say “speak truth to power.”
These two are the essence of much in Liberal democracy as we should know it.
Our spokespeople are not consistent as Liberals, or democrats. Fine, neither are the editors or contributors here. Neither am I.
But are we not therefore better to celebrate rather than denigrate, the centre ground, and let us , therefore more, often, meet there.
It is about balance of power and speaking truth to power.
Innocent until proven guilty is fundamental. Victims rights are fundamental.
But an accuser is the same as the accused until proof is proven.
We must throw away this really.
Professionalism means detailed examination of that which Sir Ed tells us is why he, unlike me, loathes mandatory sentences, hear the facts of the case.
It might be the texts help the accuser, or the accused, but those texts are facts of the case, those texts not, are not to be used.
If one case is improved at the expense of many, that is awful. But we are not socialists, for the many, not the few, we are Liberals , for each ad every one of us.
I do understand and empathise with Jennie. She might too have been helped by texts if they proved aggressive attitudes of her attacker, and would say that because there was no real obvious evidence, such, when found, might be the evidence for benefit, often, of the victim.
Should read, we mustn’t throw away this really!
The new policy is misguided because it does not solve the problem it purports to solve.
The collapse of recent rape cases was due to the fact that evidence freely given and available to the police and CPS was not disclosed to the defence.
It is clear that a lot of people commenting on this do not understand how disclosure works in a legal context. Both sides, prosecution and defence, have a right to request disclosure of material evidence. The recent failures of the CPS were due to the fact that it did not get round to complying with disclosure requests from the defence. This is most likely because it is hugely underfunded.
I seriously doubt that allowing police blanket access to complainants’ phones – resulting in the police having to trawl through much more evidence, which may simply sit in evidence locker or on a memory stick somewhere rather than being actually disclosed to the defence – will improve the problem identified. Instead, trials will be much slower, or the police will simply not get round to disclosing information found on complainant’s phones by the time of the trial.
The whole thing is not helped by the fact that the CPS have utterly cocked up the presentation of the new approach, and there has been poor reporting all around.
Reporting rape is already difficult enough without people having to hand personal correspondences over to the police. One of the problems with this crime is the way defence cases can basically indulge in casting moral judgements on character of the accuser. I think this bad legal ruling.
None of the people whining “What about the mennnnzzz?!!!!Eleventy” above have actually explained how having a victim’s phone would actually help even in the (risibly small number of) cases of false accusation. Anything other than the accuser actually saying in so many words “I plan to make a false accusation of rape against this person” is useless — while, for example, the accuser and accused having had a flirty relationship might well be used by the defence to cast doubt on any accusations, it’s not like it’s unknown for people to have flirty relationships that turn bad and lead to rape. Other than just flat-out saying “I am going to deliberately make a false accusation”, the chances of there being anything on an accuser’s phone to prove or disprove their story are minimal.
But on the other hand, this would mean the rapist (who may well conduct his own defence, especially in these times of Legal Aid cuts) having access to every aspect of his victim’s life, and being able to violate the victim perhaps even more horribly than the original crime.
Not to mention that if there’s evidence of any *other* crime on the phone — for example the victim arranging to buy some dope from a friend — that will stop the victim coming forward altogether.
I absolutely believe in the principle of “innocent until proven guilty”. I don’t see how violating a victim a second time, in case they’re not only in the tiny, single-digit-percentage, group who make false accusations, but also in what must be the single-digit-percentage portion of that group who admit in writing to making such false accusations, can possibly have anything to do with justice.
Big Brother Watch has a lot of resources on this at https://bigbrotherwatch.org.uk/all-campaigns/victims-not-suspects/
In the meantime, I’m sure the men above will all be very happy to post their passwords and the answers to all their security questions here, so we can all look through all their emails, texts, bank records, and web browsing history. After all, they have nothing to hide, so they must have nothing to fear…
@Chris Lee – “The new policy is misguided because it does not solve the problem it purports to solve.”
But it does solve the problem it purports to solve!
“But police and prosecutors say the forms can plug a gap in the law which says complainants and witnesses cannot be forced to disclose relevant content from phones, laptops, tablets or smart watches. … The digital consent forms can be used in any criminal investigations…”
So the issue being addressed is a grey area in the law as it currently stands, namely the police need (explicit) consent to access some sources of personal digital information. I don’t know at what point the digital information was ‘discovered’ in the Liam Allan case, but I suspect that if the police had had access to the data during their investigation, they may have advised the CPS that there was no case to answer and thus there would have not been a court case…
Andrew
You refer to the now rather overdone, what about the men, though on here nobody said or even suggested that as is sometimes so.
You ask why nobody suggested how the access to said phones might help. I did and shall here.
A phone is a good way of revealing a phoney. This could be accused or accuser. You refer to rapist and victim but neither are accurate until found to be but the phone can help.
The example of the 2017 case is not as important as imagining the following.
Suppose a phone contains abusive texts by the tens on the day of the rape, yes, imagining the accused is guilty, suddenly he appears it. Suppose the rape was by someone who claims he never met the accuser. Suppose the phone from messages reveals that to be a blatant lie.Suggesting it might never be useful doesn’t make that the case.
We need according to most Liberals , evidence, as Sir Ed often says, the facts of the case.
Texts are facts. They can reveal who said what and that can aid either in a search for guilt or innocence.
“So the issue being addressed is a grey area in the law as it currently stands, namely the police need (explicit) consent to access some sources of personal digital information.”
That’s not “a grey area”, that’s protecting people’s privacy.
“I don’t know at what point the digital information was ‘discovered’ in the Liam Allan case, but I suspect that if the police had had access to the data during their investigation, they may have advised the CPS that there was no case to answer and thus there would have not been a court case…”
Five minutes on Google would show you that this is not the case, that the data in that particular case was handed over by the accuser voluntarily, and that the problem was that the police missed crucial evidence while reading through *fifty thousand text messages* trying to find a needle in a haystack.
Which is, of course, yet another problem with this — a pragmatic rather than a principled one. The police are far from united in wanting these powers, as many point out that the amount of data they get from victims’ phones is so huge it can take literally *years* to sort through it, delaying the trials.
Roland
it just adds an extra intrusive layer questioning on anyone reporting a potential crime. Give us access to your private conversations and we will decide if you are a credible victim.
I’m sorry but this rings of people trying to throw legal loopholes around arguments about consent. It truly is a very regressive ruling.
There are so many incorrect statements in the above post and comments concerning the actual law that I don’t have time to pick through them all.
But here are some good sources of legal commentary on this issue
CPS
https://www.cps.gov.uk/cps/news/handing-over-mobile-phone-data-rape-prosecutions
Thread from the Indy’s Correspondent
https://twitter.com/lizziedearden/status/1122772747979980800
The always excellent Secret Barrister
https://twitter.com/BarristerSecret/status/1122823927804227586
Who also points out that all MPs were sent his book which included a chapter on disclosure problems
https://twitter.com/BarristerSecret/status/1123160396758601730
But I come back to the point no-one has really addressed. The police have a duty to follow all reasonable lines of inquiry. If you don’t want them to do that – and you can do that for a whole bunch of objectively good motives – then you are starting down a very very dark road. There are good reasons why the police do this. They have the expertise to do it – and they largely have the powers to do that. If they don’t trying to get evidence for a defendant will fall on them – and they don’t have the resources of the state (even less so in these legal aid limited times). The criminal justice system is all about balance – and a huge imbalance is the power of the investigating state vs the power of the defendant.
This has wider consequences for all alleged crimes and it is depressing that some liberals don’t seem to understand or respect the principle of our justice system. This is not about men v women and nor is it about how many people are convicted of this or that crime, it’s about seeking justice – and justice in a civilised democracy should mean making sure any accusations of criminal activity are thoroughly investigated before someone is convicted of a crime. Anyone – man or woman – can end up the dock accused of something they didn’t do. The courts should be allowed to present whatever evidence they seek fit to ensure justice is done. I find some of the comments from so-called liberals above thoroughly depressing. Yes the principle of innocent til proven guilty is absolutely paramount whether it be a man or woman in the dock. It’s 2019, not medieval Britain.
Ashley 1st May ’19 – 8:13am
This has wider consequences for all alleged crimes and it is depressing that some liberals don’t seem to understand or respect the principle of our justice system…..
@ Ashley: you can’t expect many posters on a generalist site like this to have specialist understanding of legal procedures surrounding disclosure, much lessthe current rules regarding digital disclosure.
I believe there is a quite wide underlying disquiet amongst the general public, ie non-legal experts – about the failure of the legal system to bring more than a tiny precentage of rapists to trial. The system does seem stacked against accusers. This needs to change.
In many cases, such as the attack described by Jenny, it’s because the very nature of the crime means there will be two competing viewpoints, without witnesses. and the justice system cannot in such circumstances find guilty without reasonable doubt.
However, in others, there have been failings in attitude from pólice and CPS who have too readily dismissed cases as too difficult to pursue.
Handing over the accuser’s mobile phones will be critical in a small number of cases, such as Liam Allan’s. There should be nothing controversial about that, given the numerous safeguards to use of digital contents.
@Andrew – That’s not “a grey area”, that’s protecting people’s privacy.
Heard of GDPR?
Suspect the police are ensuring that there is a record of positive consent being given, given they don’t have any explicit right to gain access without consent. Ie. the police are are not getting any new ‘powers’.
@Glenn – it just adds an extra intrusive layer questioning on anyone reporting a potential crime.
What? It clarifies the extent to which the police can simply take a look at personal information and gives an opportunity for the person reporting a crime to have their rights explained to them, they may wish to consult a solicitor before signing…
Remember as this is the police, they do have to explain the potential consequences of signing and not signing the consent.
It truly is a very regressive ruling.
Its not a ruling, the Police are just following the intent of GDPR…
@Richard Flowers,
“The first step always has to be to believe the victims”
I would say the first step, whatever the crime, should always be to look at the evidence.
@ Andrew Hickey,
“Five minutes on Google would show you that this is not the case, that the data in that particular case was handed over by the accuser voluntarily, and that the problem was that the police missed crucial evidence while reading through *fifty thousand text messages* trying to find a needle in a haystack.”
I don’t think “missed” is the right word. The police had been through the phone, picking out the messages that were useful to them and the CPS. Fortunately the CPS barristers, who were appointed at the last moment, were more principled and insisted on the entire contents being made available to the defence. We’ll never know just what the original legal team would have done on the day, but Liam Allan is very thankful that fate intervened in the way it did.
It’s never going to be possible to fully balance the rights of assumed victims with the presumption of innocence, and while it is inevitable there will be some rapists who get off with it, or innocent men who are wrong convicted, I’m worried that some responses seem a bit glib about accepting it.
It is entirely reasonable and rational that many victims of assault (male or female) already feel humiliated enough by the experience that they don’t want to expose themselves any further. However, so long as it’s handled correctly, I’m not convinced that fear of further humiliation trumps the right of the accused to a fair trial.
I followed the Secret Barrister’s twitter thread with interest and its apparent that most media writers and therefore regular commentators don’t understand how or in which circumstances a phone might be requested or the data used, which isn’t helpful. IMO, that’s the bit that needs scrutiny.
The other thing that needs working on is the idea that wearing a short skirt or the text message equivalent might means you shouldn’t be taken seriously. However, that doesn’t mean it’s unreasonable for the police to check what you were wearing at the time, or to bag it up as evidence for review.