The central point of any accusation and prosecution for the offence of rape is that of consent: did the complainant (victim) give consent to sexual activity or not? On that hinges the case and any possible conviction.
Once again the issue of consent has surfaced in the context of rape and other sexual offences. This time it relates to the issue of asking (some may suggest forcing) complainants (victims) to give consent for the police to trawl through (carefully assimilate) the data contained on the complainants mobile phone and other digital devices. Failure to give this consent may result in the termination of any proceedings. The rationale behind asking for this consent is that important information that relates to the case and upon which crucial decisions (including innocence or guilt) may be determined, could be on the phone and so make it necessary for the police (and CPS) to have access to said phone data in order to proceed with the case. Victims of domestic abuse and violence may also find themselves in a similar position.
That, I must say, all sounds fairly reasonable. We all want as many relevant facts to be available so that a just and fair decision can be arrived at in any criminal proceedings. If there is information available that will help determine whether someone is guilty or innocent of a serious offence then it is surely reasonable to ask that this may be made available to those responsible for making such decisions; ultimately a jury in a court trial.
Well, yes, so far so good. But is this suggestion of asking a victim (complainant) to hand over their phone, possibly for many months ( the guidance suggests that the police “may be able” to offer an alternative phone to the victim), fair and proportionate? In defending the new consent form being rolled out in police forces, Assistant Commissioner Ephgrave of the Metropolitan Police has, reassuringly, suggested that this is not the finished article but a useful step along the way. Yet the premise ( and so the foundation) of the form seems to be to help address the recent and highly damaging problems around disclosure in sexual offence trials which have attracted a lot of attention.
It is certainly the case that disclosure issues can and have made a complete hash of cases and that no one, complainant, defendant, the criminal justice system or us, the public, isn’t impacted by them particularly when it comes to confidence in the system. But the new consent form does not look like the right way to help address this. The problems in the past have been about disclosure – this is not the same as not knowing about or ignorance of available information. The material was there, the police and CPS had it; they just didn’t pass it on. I’m not sure how trawling through a mobile phone addresses this, though accept that it will certainly help gather lots more information.
And that’s another issue. If the police are able to keep the phone for an extended period and give it a thorough examination what happens to the information they glean. The guidance suggests it will be kept and states that if there is any evidence of other criminal activity it may be pursued. Does this help build confidence among victims? Consider a complainant (rape victim) who may have contacts who aren’t always absolute sticklers for obeying every law of the land – and, if being honest, I suspect that could apply to just about all of us. Knowing what is on the phone (the odd text, What’sApp, email) am I going to be relaxed about handing the phone over to the police? Am I, perhaps, not more likely to just forget about it and try to get on with my life? Am I more likely to be denied justice (that sounds clinical and not at all reflective of the trauma involved)?
And what about the perception that the desire to have access to all the data on a phone is but another way of building a picture of the victim that, in truth, should have nothing to do with the case. Remember the days when juries were asked to reflect on whether the short skirt the victim (complainant) was wearing contributed to the offence happening. That helped undermine trust in the criminal justice system and it’s hard to see how this new measure, well intentioned as it is, will help restore said trust.
Asking victims (complainants) to hand over their mobile phones and consent to what some may see as a “fishing trip” isn’t the way to address the problems with disclosure. It is, perhaps, a bit of a sledgehammer approach to what is, obviously, a hugely sensitive area. I’m sure the motives are honourable and that the police and CPS are really trying to help. But it doesn’t look to have got off to a good start. If the criminal justice system is to work it must, as the Director of Public Prosecutions and AC Ephgrave said in their briefing command “trust and confidence”. This approach is, indeed, far from the finished article.
If all this sounds to be but an academic discussion let’s remember what this is really about, indeed, what our criminal justice system is (or should be) about: people. As a rape victim has recently said: “They were the most private details of my life and they were going to be revealed to anyone and everyone involved in the case when all I was trying to do was get justice. Who in their right mind would go ahead with a complaint when this is how they’re being treated?” she said. “People are just going to get away with rape.”
Best intentions are not always enough. We need also to be aware of unintended consequences.