Access to complainants’ mobile phones in Criminal Investigations – Is it really an invasion of privacy?

BCL’s Paul Morris and David Hardstaff discuss recent reports on digital data requested in investigations.

It has been widely reported that complainants in cases involving allegations of rape and other sexual offences are being asked to complete consent forms and hand over their mobile phones to the police for the contents to be downloaded and reviewed, or face their complaints being dropped. It is said that two complainants are planning a legal challenge against this policy and that the Information Commissioner’s Office is currently investigating.

What some arguably misleading headlines fail to account for is that mobile phone analysis of both a suspect and a complainant can often be ‘‘reasonable lines of enquiry’ in any police investigation and such, just like any other form of evidence such as CCTV or clothing, the police have a duty to investigate it. There are many different circumstances in which such a request for a mobile phone may be made by the police, particularly where there is contact between complainants and third parties. Because of the methods in which people communicate nowadays, many ‘first accounts’ of alleged criminal conduct are made from mobile phones or through social media messaging platforms. This form of evidence is often contemporaneous and valuable in the absence of other corroborative evidence.

The notion that police investigators and prosecutors are giving unfettered access of complainants’ mobile downloads to defence lawyers and their clients is simply (and rightly) incorrect. The starting point is the statutory test for disclosure as set out in the Criminal Procedure and Investigations Act 1996, which requires the prosecution to disclose its case on the defence together with any material which might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the defence. This test is highly fact-specific and necessitates the defence to set out its case in detail in the form of a defence statement. This prevents the defence being given the ‘keys to the warehouse’, i.e. being given unrestricted access to any and all material obtained in the course of an investigation. In addition, particularly stringent protections exist, preventing the cross examination of witnesses in relation to their previous sexual history where it does not pass the test for admissibility in court.

Rape and other sexual offences are some of the most difficult cases to investigate, adjudicate and defend. Incidents usually take place in private settings, between two people and without witnesses or CCTV evidence. Other factors can muddy the waters even further, including intoxication through alcohol and drugs, and pre-existing relationships. Those involved are often known to each other in some way and in 2019, this means that there is a high likelihood of communications evidence which may shed light on the circumstances leading to an alleged offence.

In cases where there can often be so little evidence in addition to the word of the complainant, pointing either to the guilt or innocence of a defendant, it is incumbent on investigators to consider every potentially relevant line of enquiry. In the digital age, the often uncomfortable truth is that our mobile phones can offer an unparalleled insight into our daily lives, including our interactions with others. If we really do believe that a suspect is innocent until proven guilty, they should be afforded the same quality of investigative process as complainants rightly are. The key to this debate is the need to ensure that enquiries are proportionate and justifiable given the facts of the case. It is the responsibility of all involved in the criminal justice system to ensure that this high test is satisfied.

If you’d like to discuss any of the issues raised in this article with one of our solicitors then please get in touch in the strictest confidence.

Paul Morris is a partner at BCL who has extensive experience in complex and serious crime, defending a range of general criminal matters including homicide, sexual offences, blackmail, drugs offences and assault. He has particular experience in crisis and reputation management, advising professionals from the finance, music, medical, sports, political and teaching professions in relation to serious and complex investigations and prosecutions.

David Hardstaff is an associate solicitor at BCL specialising in criminal and regulatory law. He advises individuals and companies in relation to controlled drug licensing and AML/Proceeds of Crime considerations in the context of the domestic and international cannabis market. He has particular experience in advising and representing individuals accused of sexual offences, drugs offences and offences involving violence. He is an experienced police station representative and advocate and represents clients in a broad range of proceedings at the Magistrates’ Court, Crown Court and Court of Appeal.