Victims face choice of 'giving up privacy' or 'being raped with impunity' as they are told to hand over phones

A woman who alleges she was sexually assaulted by someone she knew said her case is being closed after she refused to hand over her phone to police.

The woman, whose identity ITV News is protecting, said she faced "giving up her privacy, to get justice" or maintaining that privacy but she could "be raped with impunity."

Rape victims are being told they must give their mobile phones to police or risk prosecutions against their attackers not going ahead.

The woman told ITV News: "I couldn't believe this was actually a thing, what relevance is this and I just thought an intelligent, government or legal system would weigh the need for an entire cellphone, with the need for victims to feel safe coming forward."

  • ITV News Correspondent Rachel Younger explains the why this is such a divisive policy

Consent forms, which ask permission to access messages, photographs, emails and social media accounts, have been rolled out across the 43 forces in England and Wales.

The move is part of the response to the disclosure scandal, which rocked confidence in the criminal justice system when a string of rape and serious sexual assault cases collapsed after crucial evidence emerged at the last minute.

However privacy campaigners attacked the demand, decrying it as a "digital strip searches of victims".

Shadow Attorney General Shami Chakrabarti warned "trawling through their entire intimate life" will put victims off from coming forward.

Police and prosecutors say the 'digital consent' forms are an attempt to plug a gap in the law, which cannot force complainants or witnesses to disclose their phones, laptops, tablets and smart watches.

The forms are most likely to be used in rape and sexual assault cases, where complainants often know the suspect.

How do police and prosecutors justify the move?

CPS Director of Public Prosecutions Max Hill says only ‘relevant’ material will go to court Credit: Home Office/PA

Max Hill, the Director of Public Prosecutions, said digital devices will only be looked at when it forms a “reasonable line of enquiry” and only “relevant” material will go before a court if it meets “hard and fast” rules.

“If there’s material on a device, let’s say a mobile phone, which forms a reasonable line of enquiry, but doesn’t undermine the prosecution case and doesn’t support any known defence case, then it won’t be disclosed,” he said.

Why are they making the demand now?

The regime came under sharp focus from the end of 2017 after a string of defendants, including student Liam Allan, then 22, had charges of rape and serious sexual assault against them dropped when critical material emerged as they went on trial.

In the lead-up to trials, police and prosecutors are required to hand over relevant material that can undermine the prosecution case or assist the defence.

Liam Allan’s trial collapsed after crucial evidence emerged Credit: David Mirzoeff/PA

Sam Armstrong also had charges against him dropped when new evidence emerged as they went on trial.

He told ITV News: "Something that should have been solved overnight, rumbled on and on for months and caused me enormous damage, that's wrong and I really hope this change today means that it doesn't happen to a lot of young men in the future."

What do critics object to about the new forms?

Shadow Attorney General Shami Chakrabarti spoke out against the move, calling for a "targeted approach" instead.

"If there is a blanket practice of taking the mobile phones of rape complainants and trawling their entire intimate life by taking these phones, this will put women - and it is mostly women - off coming forward," she said.

"The better, more proportionate, approach would be to do targeted searches of some people's phones in the cases where that would be relevant."

Privacy campaign group Big Brother Watch said “treating rape victims like suspects” could deter people from reporting crimes.

Griff Ferris, legal and policy officer at Big Brother Watch, said urgent reform is needed so victims do not “have to choose between their privacy and justice”.

Northumbria Police and Crime Commissioner Dame Vera Baird said the forms are just part of the problem as police and prosecutors look to harvest third party material, such as school records and medical notes.

“The police are really saying, ‘if you don’t let us do this, the CPS won’t prosecute,’” she said.

“It is a real concern that people will be put off making a complaint in the first place if it’s widely thought they are going to have to hand over lots of personal data – everyone lives on their phones, particularly teenagers.”

How have the police responded to the criticism?

Scotland Yard’s assistant commissioner admitted he 'wouldn't relish' handing over his phone. Credit: PA

Scotland Yard’s Assistant Commissioner Nicholas Ephgrave said he recognised the “inconvenient” and “awkward” nature of handing devices to police and admitted: “I wouldn’t relish that myself.”

He added: “People who have been victimised and subjected to serious sexual assaults, for example, that’s an awful thing to happen to them and you don’t wish to make it worse by making their lives really difficult.

“But to pursue the offender, the way the law is constructed, we do have these obligations."