Rape Victims: Disclosure of Evidence

(Urgent Question): To ask the Minister for Policing and the Fire Service whether he will make a statement on requests by the police for victims of rape to provide their mobile phone and other digital devices.

Mr Speaker—[Interruption.] Not now, mother.

There is widespread recognition that disclosure in criminal cases must be improved. As the right hon. Member for Broxtowe (Anna Soubry), whom I still call my friend, knows, disclosure of evidence is crucial for ensuring the public’s confidence in the police and in our criminal justice system. It is important to note that police forces have been using forms to request victims’ consent to review mobile phones in investigations, including sexual assault cases, for some time. What is new is the national form that was introduced today, which attempts to distil current best practice and to replace the individual versions being used by the 43 police forces, to ensure that there is consistency and clarity for complainants. That is the intention of the police.

In considering seeking such consent, the police must consider what is a reasonable line of inquiry and ensure that their approach avoids unnecessary intrusion into a complainant’s personal life. In July 2018, the Director of Public Prosecutions issued advice on investigating communications evidence, making it clear that the examination of the mobile telephones of complainants should not be pursued as a matter of course and that, where it was pursued, the level of extraction should be proportionate.

This Government have made protecting women and girls from violence and supporting victims and survivors of sexual violence a key priority, and it is encouraging that more victims than ever before have had the confidence to come forward. However, it is surely critical that victims are not deterred from seeking justice by a perception of how their personal information is handled. They can and should expect nothing less than that it will be dealt with in a way that is consistent with their right to privacy and with the interests of justice.

This is clearly a complex area, and while disclosure is an important component of the criminal justice system in ensuring a fair trial, the police have acknowledged that the use of personal data in criminal investigations is a source of anxiety. They will continue to work with victim groups and the Information Commissioner’s Office to ensure that their approach to this issue strikes the necessary, if difficult, balance between the requirement for reasonable lines of inquiry and the victim’s right to privacy. I can assure the House that the Government will continue to work with partners in the criminal justice system to deliver the recommendations in the Attorney General’s review designed to improve the efficiency and effectiveness of disclosure.

I thank the Minister for his response. I have indeed read the document to which he refers. Rape is among the most serious and heinous of crimes, carrying a maximum sentence of life imprisonment. Victims of all crimes frequently feel that they are treated more like the accused. For example, they are required to provide fingerprints for the purposes of elimination and asked to give their consent for their medical records to be disclosed, and rape victims have to undergo intimate medical examinations after suffering the most appalling violations. However, it is the way in which we deal with these requests that is critical. What we must not do is issue a blanket demand for the handover of mobile phones and other digital devices and then threaten to discontinue a case if a victim, especially a rape victim, refuses to hand them over.

Will the Minister answer the following questions? Will he withdraw this document, because it is going to deter victims of rape in particular from coming forward? Will he ensure that there is no blanket request for rape victims—or, indeed, any other victims—to hand over phones and other digital devices? Instead, will he ensure that any request of victims—in particular, the victims of rape and other sexual offences—is made only if the investigation, including the account of the accused, has been properly looked at and it is the view of the investigating officer, having considered all the material, that such a request should be made? Will the Minister withdraw any document that states—and condemn all assertions—that cases will be dropped if the victim does not agree to hand over any material or device to the police? Does he agree that those threats are unacceptable?

Will the Minister confirm that it is already the practice of Crown Court judges to ask, at the plea and trial preparation hearing, whether all digital material has been obtained and preserved? Does he agree that if the existing law, guidance and practice directions on disclosure were followed, they would do justice to both the victim and the accused, and that their being followed properly by the police and the Crown Prosecution Service would ensure that further distress and threats to rape victims and other victims of crime would not be necessary?

I thank the right hon. Lady for her questions. She is of course absolutely right to describe rape as a heinous crime. She is also right to remind the House that there is nothing new about requesting personal, highly sensitive information from those alleging the crime. She is also absolutely right that that needs to be done with the utmost sensitivity. She may have a different perspective—views may differ around the House—but I believe that the police have made considerable improvements over recent years in that respect.

I have read the document, and the right hon. Lady has asked me to withdraw it. It is not my document, because the process is led by the police and the Crown Prosecution Service. What I can say to her, concerned as she is about the risk that the process might lead to those alleging rape not coming forward, is that an impact assessment has been carried out and we will take a strong interest in it. It is not a blanket request. As she knows, the police and the CPS proceed on a case-by-case basis. They have a heavy responsibility to pursue reasonable lines of inquiry and to make such a request only when they consider it relevant.

The right hon. Lady referred to the language in the document, and I think she asserted that the police were suggesting that if someone did not hand over their phone it would not be possible for the investigation or prosecution to continue. I may be misrepresenting her, but that is what I heard. Language is important, as she knows, and the document states:

“If you refuse permission for the police to investigate, or for the prosecution to disclose material which could enable the defendant to have a fair trial then it may not be possible for the investigation or prosecution to continue.”

I have discussed that with the police, and they see it as a reasonable statement of fact, but the language used is sensitive and can be discussed with the police and others to see how it may be improved.

Many of us struggle to be away from our mobile phones for half an hour, let alone any longer, so can the Minister reassure me that the police will be sufficiently funded to take phones away from alleged victims for the shortest possible time and to interrogate them with the most up-to-date equipment?

My hon. Friend is entirely right. We all know how attached we, our friends and our children are to the mobile phone. It plays a fundamental role in our lives, and the prospect of being detached from it is genuinely alarming. I can give that undertaking. The police are aware of the need to minimise the length of time that a phone is taken away from someone. At the heart of my hon. Friend’s inquiry is a question about technology, the ability to process information quickly, the requirements of the criminal justice system and improvements to the disclosure process.

I am grateful to you, Mr Speaker, for granting this urgent question, and I commend the right hon. Member for Broxtowe (Anna Soubry) for applying for it.

The latest Home Office figures show that the proportion of reported rapes reaching prosecution is now at 1.7%, which is an appalling statistic. The rate was at 1.9% in January, so clearly the situation is getting even worse. The Minister knows that the issue of disclosure in our criminal justice system has been a running sore for this Government, with hundreds of cases dropped on that basis, and it is not good enough.

The Minister must accept that the Government’s cuts to resources, to the police and to the Crown Prosecution Service have restricted the capacity of those organisations to investigate and sift evidence. The Government need to get disclosure right. Of course we need relevant evidence to be disclosed in all cases, but there is a big difference between that and those who make a complaint of rape having to open up their entire digital life to be picked over.

We cannot have a situation in which complainants are asked to sign consent forms authorising the investigation of their data without limit, with the case not being taken forward if they refuse. I heard what the Minister said about the language on the form itself but if, in practice, that means, “Give us your mobile phone or the case will be dropped,” that is no way to run any criminal investigation and it will deter victims even further from coming forward.

Given the level of concern that has been expressed today, can the Minister confirm that all complainants will be entitled to fully funded, independent legal advice before they sign these consent forms? Can he at least make that pledge today? When are the Government going to accept that more resources are needed for our police and our whole criminal justice system? When will the Minister finally get this issue of disclosure right and stop failing victims?

The hon. Gentleman lets himself down by trying to make cheap political points on this issue, because we are talking about a very serious matter in our criminal justice system and its integrity. He and other Opposition Members know that the problem of disclosure has run for a very long time, going way back into the 1990s, and I would have hoped that there would be cross-party support for what is being done to make radical improvements to that process.

The hon. Gentleman will also know that one of the big game changers in recent decades has been the exponential growth in the volume of digital data and the challenge that that brings to the police. He continues to give the impression that what has been announced today is a new process, but the police have been taking and requesting access to mobile phones for some time. What today represents is a well-intentioned attempt by the police to bring together best practice in a national form so that there is consistent practice across the country and so that consent is as well informed as possible—that is the intention of this form.

I was never a specialist in criminal law, but my time as a barrister taught me that, during litigation or prosecution, both sides come under an ongoing duty of disclosure. That is a vital principle of our justice system, made all the more important in this context where we have seen a number of rape and serious violence cases collapse upon the emergence of subsequent evidence. Does my right hon. Friend agree that what has been proposed is proportionate, reasonable and sensitive, and therefore is not anti-victim but pro-justice?

I believe so. We have to be clear that there is some risk, but there is also a counter-risk, to which my hon. Friend alludes, that continued disclosure failures would lead to more cases, such as that of Liam Allan and others, collapsing at the last moment, which is disastrous for everyone involved. No one should pretend it is easy, but we are very clear, and the House should be very clear, that we need to make material, rapid improvements to the disclosure processes, because they are the heart of the integrity of our criminal justice system.

I think everyone in the House wants to see justice done and the truth established through the investigation of all relevant evidence, but I hope we can also all agree that that cannot and does not justify a general trawl through the private life of any citizen. Investigations in pursuit of information must be evidence-led and targeted. That can involve, as the Minister said, a difficult balance, but the policy, as reported today, gets that balance totally wrong.

There is a world of difference between, on the one hand, seeking to establish whether a particular telephone call was made or a text was sent and, on the other hand, insisting on carte blanche to fish through whatever is on a phone. Has the Minister even assessed whether this policy can be justified under the European convention on human rights or data protection laws? More fundamentally, as Rape Crisis Scotland has argued today, is there not a huge danger that such a policy will put people off reporting rape and sexual violence? Just what measures are in place to protect the privacy of those to whom such requests have been made? Surely there must be a more proportionate and sensible way to support justice and protect privacy at the same time.

I have some sympathy with some of what the hon. Gentleman is saying. One very welcome bit of progress we have made as a society in recent years is in building the confidence and trust of victims of previously hidden crimes, be they domestic violence, sexual violence, rape or modern slavery, to come forward—frankly, I am damned if we are going to go backwards on that. I think the House is united on that. Of course there is some underlying risk, which we will monitor extremely carefully through the impact assessment, but I am serious about the counter-risk. If the police do not get consents and if we really do restrict access to mobile phones in this day and age, we will undermine the process of critical improvement in our disclosure process. As I said, the counter-risk is of cases continuing to collapse at the last minute, which is the worst possible outcome. I am sure that he and I would both wish to avoid it.

The victims of rape are not only those who have had this terrible crime done to them, but people who have been wrongly accused. A young friend of mine was wrongly accused of rape, making his life a misery for months and months; he was bursting into tears and all the rest of it because of the stress. Only through telephone evidence that emerged was it shown that his accuser had been sexting him—this was despite his denials; he had not seen this person for years. So may I just say to the Minister that he should say to the police that this is the right course of action? Of course it has to be proportionate, but, as my hon. Friend the Member for Fareham (Suella Braverman) said, justice has to be done, and that includes for those people who have been accused of rape when in fact they are innocent.

My hon. Friend makes an important point in an extremely impressive way. The whole House is united in wanting to see the country make more progress in prosecuting and convicting for rape in a more effective way, because, as the right hon. Member for Broxtowe (Anna Soubry) says, it is an absolutely heinous crime and there is huge space for us to improve. However, we have to be mindful, not least in the light of very recent highly publicised cases, of the damage when things go wrong, as in the case of Liam Allan, where lives and personal lives are ruined as a result of failures in the disclosure system and cases collapse at the last minute. That is a terrible outcome for absolutely everyone. I impress on the House that underpinning this proposal is a desire of the police to improve the understanding of what they are requesting so that consent is better informed.

I call the Mother of the House, Harriet Harman.

Thank you very much, Mr Speaker. I agree with the way this was put by the right hon. Member for Broxtowe (Anna Soubry) and I agree about just how serious the problem is. Let me tell the House about an email I received this morning from a young woman I know. I did not know she had been sexually assaulted. She said, “Six months ago, I was seriously sexually assaulted by a complete stranger. Two months after the assault, the police demanded full access to my phone, including my Facebook and Instagram passwords, my photos, stretching back to 2011, notes, texts, emails and the full history of 128 WhatsApp groups and individuals’ conversations stretching back over five years. I had no prior or subsequent contact with my attacker. I lie awake at night worrying about the details of private conversations with friends, boyfriends, business contacts, family that are now in the hands of the police. It is a gross intrusion into my privacy and theirs. I feel completely as if I am the one on trial.”

We all know, as the Minister has said, that disclosure is a problem, but we also know that there is massive under-reporting of rape cases. We also know that one of the problems in rape cases is that the victim is attacked in court and put on trial herself. The “Digital device extraction” document that has been issued today says quite simply, “Give us all your devices. We will download and review all the material, including deleted material, so that we can give it to the suspect and use it in the trial”. I know the Minister is committed to justice for victims as well as for defendants—I totally accept his good faith in this matter—so I implore him not to dig in and say that this is a good thing. There is a real problem out there that has been exposed, and he really needs to take action on it.