Rape Victims: Disclosure of Evidence

Anna Soubry Excerpts

Monday 29th April 2019 Commons Chamber

[Anna Soubry (Broxtowe) (Change UK)]

(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.

[The Minister for Policing and the Fire Service (Mr Nick Hurd)]

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.

[Anna Soubry]

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?

[Mr Hurd]

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.

My final point comes to the fundamental underlying issue. As the right hon. Lady and everyone in the House knows, we have had a long history of failure in relation to the disclosure system, which sits at the heart of our criminal justice system and public confidence and trust in it. There has to be a response, and the CPS and the police are working closer together than ever before on this. The national disclosure improvement plan, which is now in its second phase, is an extremely credible piece of work, and it fits with that work to try to rebuild confidence in our criminal justice system. She knows that there is a balance to be struck between pursuing reasonable lines of inquiry and protecting privacy, and I believe that the police, with the best of intentions, have tried to strike the right balance, but they are open to improving it if improvement is needed.