England: Obtaining rape complainants’ mobile phone data is ‘common sense’

England: Obtaining rape complainants' mobile phone data is 'common sense'

Looking at the mobile phone data of rape complainants is “common sense”, essential for a fair trial and does not alter the existing statutory regime, lawyers have said.

Jerry Hayes, a former Conservative MP and barrister, said the rules were clear and that “the police are not entitled to trawl through all calls and social media as a matter of course”.

Mr Hayes was reacting to an outcry over new police forms that must be signed by people reporting rape and which allow detectives to seize data from their electronic devices.

Failure to hand over the data mean the cases could be dropped and two women are undertaking a legal challenge to the introduction of the forms.

“Asking a complainant’s permission to interrogate their phones and social media is common sense and in the interests of a fair trial,” Mr Hayes said.

He told The Times that “warning that failing to co-operate might lead to the abandonment of a trial is pretty basic”.

He said: “The defence would ask for disclosure and if it is refused, alarm bells would start to ring.”

Paul Morris, of BCL Solicitors, said the new forms did not change the statutory test for disclosure as enshrined in the Criminal Procedure and Investigations Act 1996.

The act requires the prosecution to disclose its case to the defence along with any material capable of undermining the prosecution’s case or assisting that of the defence.

Richard Atkinson, co-chairman of the Criminal Law Committee of the Law Society, said there was much “misinformation” about the new forms.

“Being up front about the need for proper disclosure is important,” he said.

“People need to understand that the data will only be disclosed to the defendant if it meets the disclosure test of assisting the defence case or undermining the prosecution.”

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