Why I will continue to seek disclosure from mobile phones

This week has seen a vast amount media attention being given to consent forms being given to complainants for the examination of their phones. Benjamin Knight questions why the coverage was so misleading.

In late 2017, there was a media storm over disclosure in criminal proceedings. Liam Allan’s case was one that astonished many people but there were several other stories that horrified our already punch-drunk nation. This week phones have been at the heart of the disclosure argument.

Why is it then, that formalising a practice that has taken place since mobile phones appeared has caused such outrage in the press? Is there an agenda? Is it some skewed type of virtue-signalling? Or is it just a rank misunderstanding of what our justice system is there to do?

43 police forces in England and Wales have been handed the new forms. This form is the result of a meeting of minds between the National Police Chiefs Council and the Crown Prosecution Service. They have attempted to create a safe system that ensures that data protection/GDPR is complied with and that crucial evidence is not missed.

The complaint being made

I was going to quote a few of the many campaigner voices on this but the complaint being raised can be summarised thusly: “Victims” are being treated like suspects; having their intimate lives trawled and this may lead “victims” not to come forward.

Now, I realise that some will find objectionable that I have placed inverted commas around “victims”. But this is not a qualitative assessment. It is highlighting where the problem with the whole discussion has its roots. We must simply acknowledge that, until there is either an admission or a finding of guilt against an offender, he is a suspect or a defendant. And until that point, the person making the allegation is a complainant. Not a “victim”.

This analysis requires a necessary separation in the mind between the justice system and personal opinion. If somebody alleges a rape, a private individual is absolutely entitled to adopt the default position of belief. Indeed, the police forces of England and Wales have been training their detectives to adopt a position of belief from the moment of the allegation being made.

Where an allegation is made formally, personal belief must be put aside. It’s as simple as that. It’s a matter of evidence-gathering and investigation. There are checklists. There are standard procedures where there may be forensic evidence still available. Investigation is sometimes very intrusive, but it is crucial to the purposes of justice.

What many forget is that, as we pile on safeguards and assurances to complainants, we have done nothing to make the other side of this investigation less intrusive.

The Complainant

To take an example, after alleging that a rape has taken place very recently, the complainant will be asked to undertake an intimate medical examination. They will be asked a lot of questions about what happened. The detail sought will be considerable. They may be asked about other sexual activity that has taken place recently and recent sexual practices. These pieces of information are nothing to do with morality or judgement, they are to make sure that any forensic evidence gathered will have value and cannot simply be written off by the defendant at some later stage.

There will be a “soft interview”. That is to say, the Complainant will be interviewed in a comfortable room, equipped with near-hidden cameras. They will not be challenged in their interview – merely asked for more detail wherever possible. They will be helped to achieve the best evidence that they can at an early stage, when events are freshest in their minds but where they are in a “safe space” sort of environment. The type of questions asked are designed to avoid any suggestion of disbelief.

That process is not pleasant. It is forcing the complainant, if truthful, to relive an appalling violation in front of a stranger.

After that, they are told how things may proceed and this is where things often go wrong.

Instead of having a regular stream of updates from Witness Services, they often hear nothing for quite a long time. They are sometimes nudged by police to make sure that they are still cooperative with the proceedings. This is often, I have observed, heavy-handed and even threatening. Some officers seem to think that being aggressive after the initial complaint has been made will keep the witness (as that is what they have become) within their control.

The truth is that this aggressive approach is sometimes what makes complainants stop cooperating. This is not exclusive to rape cases. I have had first-hand accounts of this in many types of cases, from thefts through to murders.

It is often during this phase that the request will land for the mobile telephone of the complainant. I will examine those requests below, but it is important to identify when such evidence is likely to be sought. I acknowledge that the request may come much sooner but that is usually where there is an obvious line of investigation at that early stage. Whenever the request is made, it is only ever made when there is a legitimate reason to do so.

I should add that many police officers try to explain why they are asking the complainant for their phone, but I have heard some worryingly inaccurate explanations given. I consider that much of this is due to the lack of police training regarding what actually happens to a case, after it a charge is laid. That training has now become all but non-existent. Many police officer will also go for years before they actually see a trial.

The suspect/defendant

A knock on the door at 5pm. The family might be in. They might not. Uniformed officers have pulled up outside and the curtains are twitching.

“Mr Bloggs, I am arresting you on suspicion of rape. You do not have to say anything…”

There may be some reassuring words. There may be an assurance that “it’ll probably not come to anything, mate.” “We just need to have a bit of a chat and then we should be able to get you on your way.”

Or maybe it’s an interview by appointment. These are not unusual.

Upon arrival at the police station, the above reassurances are often given. An extra line that is often thrown-in is, “You can have the duty, mate, but they are busy so you may be stuck in a cell for a little while. It’s absolutely your right but, like I said, we probably just need a chat and we can get you out of here.”

These lines are so clichéd that I hear them multiple times per month.

Next up is the DNA swabbing. Fingernails. Mouth. Penis (in this scenario).

There is then an interview. Not in a room with sofas and tissues and a hot drink, but in a room that is empty but for an audio recording device, a table, four plastic chairs, and panic alarm.

The questions are challenging. They are accusatory. They are intrusive. They do question previous sexual history.

Importantly, the suspect’s mobile phone is taken from them. Their clothes are taken from them. Access to their social media and emails are demanded by officers. Failing to provide access to their mobile phone is a separate criminal offence. They have absolutely no privacy, despite having been convicted of nothing.

In addition, they are frequently teenage boys being asked about their masturbation or sexual exploits by female officers and, in many cases, in front of their mum or dad.

A “lucky” suspect may be charged or released without charge pretty quickly thereafter. The majority will not know their fate for much, much longer. They are “released under investigation”. They put their lives on hold whilst, so far as they or their solicitors can tell, literally nothing is happening. They do not know if the friends or family they mentioned in interview are about to be asked questions about whether they can assist the investigation as to whether their friend/son/brother/father raped somebody. They are in limbo.

Don’t forget, the complainant is also in limbo at this stage and their life is also on hold. However, they face uncertainty. They face anguish. They do not face the great unknown of being remanded in custody or looking down the wrong end of a long prison sentence after being called a rapist in a public court with the press naming them from the first time they appear – even though they are not convicted of anything.

Treating the complainant as a suspect

You see then problem with the false comparisons being made between the experience and rights of a complainant and those of the suspect?

In truth, the suspect loses a stack of rights. They lose their dignity. They are placed in extreme fear because they know that the system is broken now as never before and, even if it works, their name in Google will always come up with their arrest on suspicion of rape. All of that having done nothing wrong.

What if they are guilty though? After all, until recently, the public were being told that false allegations are almost non-existent. That is turning out to be rather less accurate than had been thought but false allegations are certainly less common than truthful and brave disclosures.

If the suspect is guilty of the offence and is not for admitting their wrongdoing, they may deserve the intrusion. After all, they violated somebody. It is almost poetic justice that they be violated by the State in this way. So screams the court of public opinion, at least.

But the problem is that, unless the rapist admits his guilt, there must not be an assumption that they deserve any less dignity at this stage than the complainant. It is through equality at arms and in treatment that we preserve the rule of law in that good, law-abiding people may sleep soundly at night in the knowledge that when a bad guy gets locked-up, that’s exactly what ought to have happened.

Think about the alternative. If our system did not presume innocence until admitted or proven otherwise, we would not know that the right people were behind bars. It’s as simple as that. We know that we are safe, if we abide by the law. We are safe from false allegation because of investigations. And we are safe from rapists, murderers, burglars and assorted villains because we have put them away.

That last paragraph is the answer to the question asked of lawyers on a weekly basis all the way from law school to retirement from the Bar. “How do you represent somebody you know is guilty?” Truthfully, because I know that everybody needs to be represented to ensure that the innocent go free and that the guilty are punished justly and proportionately for what they have done – no more no less. We do the dirty work, so you don’t have to.

What has this got to do with phones?

If we take the above as a starting-point for the discussion around police asking complainants for mobile telephone, the whole thing hopefully becomes rather less objectionable.

In truth, mobile telephones are involved in almost every criminal case in the Crown Court. They are featured, alongside the likes of Facebook, in huge numbers of cases in magistrates’ courts. That is because they are a voluntary window into the life of a person.

What can an investigator obtain from a mobile telephone and to what end?

An investigator looking into any allegation at all (i.e. not just rape) will be interested in anything that may be relevant to the offence. Examples from just my last 6 months include: photographs of stolen goods/guns/drugs/large amounts of cash; text messages about supplying drugs/travelling to or from the location of an alleged offence; messages on various platforms regarding sexual role-playing; indecent images and/or extreme pornography; call records; location history; emails and other communications showing that party A is linked in some way to party B.

As time passes and technology is integrated yet further into our lives, expect that list to grow considerably.

Not all information from a phone is of interest, of course. Peoples’ lives are, almost by definition, pretty mundane. Even the lives of serious criminals are littered with phone calls about picking up groceries or elderly relatives’ birthdays.

When it comes to defendants’ phones, extraction reports (as they are called) will include vast amounts of data. I can genuinely say that the majority of phone reports I have received from defendants’ devices contain photos of them in various states of undress etc. It is white noise by this stage. But that doesn’t stop defendants being aware of their life having become an open book to anybody who has seen the extracted data.

When it comes to the phones of complainants, the situation is rather different. The only people seeing the content of phones that they hand over, after having been given the choice denied to the suspect, are the person performing the data extraction and a police officer. That is how it is supposed to be and, these days, I am told that this is exactly as it is.

Only if and when content from that device is reasonably considered by the police or the courts to undermine the prosecution case in some relevant and material way or to support the stated defence case in some relevant and material way, the relevant sections will be disclosed to the defence.

Accordingly, when a complainant is asked for their phone, the limit to the invasion into their digital life is that a techie doing multiple extractions per day and a police officer will see the content. They will only be looking for something of material relevance and usually only if the defence has explicitly asked for a particular check to be made. Then, only things that are properly disclosable will be handed over to the defence. Even that can be avoided if a further statement is taken to confirm that piece of information.

That is it.

There is no scandal here. There is no invasion beyond what is inevitable and allows a system to work to the benefit of society.

When it goes wrong

When investigation and disclosure fail, justice fails. Above, I referred to the 2017 cases that received media attention but there are countless examples of failed investigations and disclosure in every court in the land on a weekly basis. This is not hyperbole. Anybody who has read The Secret Barrister’s book will know the sort of thing. Anybody who has been through the defence side of this system will know too. As will various police officers and prosecution lawyers and their instructed counsel.

Largely, the public does not care. Only when it is them do they suddenly become outraged at the injustice of it all. They are right to be enraged but it’s a shame that it takes being accused of something to get irate.

Any criminal lawyer will be able to tell you a raft of anecdotes about cases where phone evidence either potted their client or exonerated them.

I was tempted to end this article with one such anecdote, but they are now so abundant as to be trite.

The press furore

The tone of the articles in the press and segments on the radio have been to the effect that people must hand over their phones or the rapist will not face justice. This is, to be frank, dangerously misleading and nonsensical.

If a complainant refuses to hand over their phone, so be it. There may be questions asked as a result of their failure to do so. The CPS is unlikely to refuse charge simply because of it, however.

The suggestion has been made that the presence of material that shows the complainant and the defendant having friendly conversations, or even videos of them having sex, will somehow stop a prosecution. This is also nonsense. If there is material that shows that, at the time of or shortly after the alleged rape the communications or other content are inconsistent with the details of the complaint made, that will be disclosed – as well it should be.

Finally, suggestions that the defendant will use the content of the phone as a method of controlling or continuing to exert power upon his “victim” are also ill-founded as he will not have the means so to do.

In fact, the presence of more defendants not able to afford legal aid “contributions” and so facing court alone slightly increases the risk to the complainant in terms of disclosure of their phone materials. Maybe the public could think on that too?

The real worry about this news story

For me, the real worry is that telling the public that victims are being forced to hand over their phone contents to their rapists (as that is what has been implied or stated expressly this week) is exactly the sort of lies and misinformation that will lead truthful complainants not to come forward.

Those who are spouting-off about the system from a place of little to no knowledge but who feel the need to adopt a tribal position and to tell the world how much they are on the side of victims are doing very real, tangible and obscene damage to their adopted cause.

As is very often the way, what is needed is information and calm. As is also common, what has appeared is irrationality, tribalism, pungent views, and redundant rage.

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