Victims of Rape to be Asked to Hand Over Digital Devices in UK

[Chance]

From BBC News:

Victims of crimes, including those alleging rape, are to be asked to hand their phones over to police - or risk prosecutions not going ahead.

Consent forms asking for permission to access information including emails, messages and photographs have been rolled out in England and Wales.

It comes after a number of rape and serious sexual assault cases collapsed after crucial evidence emerged.

Victim Support said the move could stop victims coming forward.

But police and prosecutors say the forms are an attempt to plug a gap in the law which says complainants and witnesses cannot be forced to disclose relevant content from phones, laptops, tablets or smart watches.

Director of Public Prosecutions Max Hill said such digital information would only be looked at where it forms a "reasonable" line of inquiry, with only relevant material going before a court if it meets stringent rules.

The digital consent forms can be used for complainants in any criminal investigations but are most likely to be used in rape and sexual assault cases, where complainants often know the suspect and there may be crucial evidence in their communication before or after the alleged incident.

The forms state that victims will be given the chance to explain why they don't want to give consent for police to access data.

But they are also told: "If you refuse permission for the police to investigate, or for the prosecution to disclose material which would enable the defendant to have a fair trial then it may not be possible for the investigation or prosecution to continue."

What are the parallels to this in American law enforcement? You can get a warrant to search any relevant devices, right?

[LittleLebowski]

"asked"

[TAZ]

Interesting. Are the brits experiencing a rash of fake rape claims?

[CleverNickname]

Interesting. Are the brits experiencing a rash of fake rape claims?

It comes after a number of rape and serious sexual assault cases collapsed after crucial evidence emerged

It seems so.

[TGS]

What are the parallels to this in American law enforcement? You can get a warrant to search any relevant devices, right?

No parallel. We can only get a warrant if we can articulate there's something we want and we can articulate it's on that phone/computer/server.

We can still ask otherwise (regardless of whether we can articulate what we want is on the device), but if the complainant refuses a consensual search we can't purposely hold that against them and refuse to proceed, as it's your 4th Amendment right to refuse a consensual search.

[okie john]

"asked"

I think that being “asked” in Britain may have a good deal more weight than it does here.


Okie John

[HCM]

No parallel. We can only get a warrant if we can articulate there's something we want and we can articulate it's on that phone/computer/server.

We can still ask otherwise (regardless of whether we can articulate what we want is on the device), but if the complainant refuses a consensual search we can't purposely hold that against them and refuse to proceed, as it's your 4th Amendment right to refuse a consensual search.

This^.

Another reminder that British are subjects, not citizens.

[TGS]

Another reminder that British are subjects, not citizens.

There's a coworker/close friend of mine that is married to a subject of the Queen, and never fails to remind her of that reality when the opportunity presents itself.

[Chance]

More info from another BBC article from January of 2018:

The number of prosecutions in England and Wales that collapsed because of a failure by police or prosecutors to disclose evidence increased by 70% in the last two years, the BBC can reveal.

Last year, 916 people had charges dropped over a failure to disclose evidence - up from 537 in 2014-15.

It comes after recent collapsed rape cases highlighted a failure to share evidence with defence solicitors.

The Crown Prosecution Service said the justice system had "systemic" problems.

In the lead up to criminal trials, police and prosecutors have a duty to disclose evidence that might either assist the defence case or undermine the prosecution's.

However, the recent collapse of several rape cases has heightened concerns that evidence is not being disclosed early enough, and that the rules are not being followed.

....

Over a four-year period, the number of completed prosecutions fell by almost 150,000 cases - from more than 736,000 in 2013-14 to just over 588,000 in 2016-17.

....

A CPS spokesperson said the number of dropped cases due to evidence disclosure failures represented just 0.15% of the total number of prosecutions.

[Rex G]

Some scattered thoughts, from a now-retired southern USA big-city PD LEO:

Any digital device that is present, at a crime scene, during the incident, is a potential source of evidence. It can be seized, with a warrant, or subpoenaed by any entity with that power.

I saw the “consent to search” procedures, and the paper form, regarding digital evidence, that came into use shortly before I retired from a USA big-city PD. One may think that he/she is sharing just the evidence with police, but that is not exactly what the language of the form indicates. A “consent to search” is, in effect, consent to see all of the images, video, and audio, on the device.

I knew the rules of evidence and procedures for extracting video/audio evidence from a digital device. That device goes to a digital forensic lab, where EVERYTHING on that device is subject to being seen by the technician(s). That is why I NEVER used a personal mobile phone to record/photograph ANYTHING that could be considered evidence. Any and every image captured at a crime scene was “creating” evidence, and, by policy, had to be properly uploaded before I left work, for the day.

We all know that technicians diligently protect images that they are collecting; right? I know that I had to watch out for colleagues standing behind me, with camera phones, while I was examining and uploading my evidentiary/forensic/crime scene images. (I was the “camera/picture/print unit” for my division, on night shift, in addition to my patrol duties.)

The prosecution is expected to disclose all potentially exculpatory evidence to the defense. Right? Well, that includes any evidence that may have been captured by ANY device, to which the prosecution had access. I believe this is what is at issue in the UK situation. The prosecution wants to see all of the complainant’s cards.

Think of this scenario: The police/prosecution has/have asserted that it/they has/have done a proper disclosure, afeter having done a diligent investigation, yet someone is able to hack the complainant’s device, and find exculpatory evidence, or, evidence that the complainant has made a false report.

E.T.A.: I am not a lawyer; just a retired LEO, who is typing while tired and retired.