Crown Prosecution Service: Rape and Sexual Offences

Baroness Gale Excerpts

Tuesday 23rd July 2019 Lords Chamber

[Baroness Gale (Lab)]

My Lords, I thank my noble friend Baroness Chakrabarti for bringing forward this important debate, and all the Peers who have spoken, showing the wealth of experience we have around the House in this field, providing detailed explanations of the problems involved in cases of rape, and suggesting what needs to be done to improve the situation.

The Crown Prosecution Service report of 26 September 2018 said that compared to the previous year, rape case referrals to the CPS from the police had fallen by 9.1%, and there had also been a big drop—23%—in the number of rape cases brought by the CPS. A number of noble Lords have commented on how low the conviction rate is in rape cases.

In April, the National Police Chiefs Council, the Crown Prosecution Service and the National College of Policing launched the new digital device extraction and digital processing notice to all police forces. This required rape victims to hand in their phones for full data download. A number of noble Lords have spoken about the difficulties and concerns this is bringing about. Rather than seek consent for specific digital evidence, the new policy asks complainants to confirm that they understand that their devices may be subjected to unlimited data searches. Victims are told that if they do not consent their case may not continue, and that if evidence of any other crime is found on the phone it will be investigated. The noble Baroness, Lady Newlove, spelled out quite clearly the effects of that.

Campaigners have warned police that excessive demands for victims’ data are unlawful and are obstructing justice by leading to cases being dropped. This new policy was released despite many objections by campaigning groups, including Rape Crisis, the Centre for Women’s Justice and the End Violence Against Women coalition.

The new Victims Commissioner, Dame Vera Baird, noted recently that the National Police Chiefs Council and the CPS had published this digital download consent form in April despite the strong disagreement of experienced rape support organisations, police and crime commissioners, and my predecessor. The instructions attached to it make it clear that if there is no consent to—as a minimum—the extraction of all data, except deleted material, the case may not proceed. Dame Vera said that this was wholly disproportionate. Why are the organisations that are complaining about this not listened to? When someone with the status of Dame Vera Baird makes remarks like this, with all her experience, surely the Government—and all those concerned—should listen.

The Guardian was mentioned earlier in the debate, and it has published quite a lot about these recent cases. One article showed that extremely intrusive requests for permission to access all electronic devices and personal records, including health, social services and school records, are routinely made by some police forces to those who report rape even before they begin the investigation. Does the Minister agree that this cannot be right? Women’s organisations are concerned that knowledge of such a level of intrusion and scrutiny induces profound anxiety for many rape victims who are thinking about reporting, and they could be put off because of it.

While preparing for this debate, I listened to a podcast about Rebecca—which is not her real name. She was raped at knifepoint and held prisoner for two days by her boyfriend, a man who was known by the police to be violent. Despite the evidence of violence against Rebecca, the CPS dropped the case, saying that WhatsApp messages that she had sent to placate her attacker could be misinterpreted by the jury. In another case, Gina—also not her real name—was raped repeatedly by her husband, but the case was dropped again because the CPS felt that the jury might not understand the dynamics of coercive and controlling relationships. That certainly does not encourage victims of rape to come forward.

The new national consent forms authorising detectives to search texts, images and call data are proving controversial. Indeed, a campaign to challenge the controversial “digital processing notices” was launched today in Parliament by 10 campaigning organisations. They allege that such notices are highly likely to infringe victims’ data protection and privacy rights and cause delays to investigations, as police and prosecutors have warned that, in some cases, if victims do not allow the contents of their phone to be downloaded, they may not be able to pursue an investigation.

The director of Big Brother Watch said:

“These digital strip searches”—


that term has been used several times in this debate, because I think that is what it feels like—

“are a gross invasion of victims’ privacy and an obstruction of justice. Our phones contain emails, social media accounts, app data, photos, browsing history and so much more. These phone downloads can even exceed the information gathered from a police property raid”.

Dame Vera Baird said:

“Unless they sign the entire contents of their mobile phone over to police search, rape complainants risk no further action on their case. These are likely to be traumatised people who have gone to the police for help.”


What are the Minister’s views are on such an invasion of privacy?

Harriet Wistrich, the director of the Centre for Women’s Justice, has said that her organisation is,

“preparing a legal action on the basis these consent forms are unlawful as they discriminate against women—who are the … majority of rape victims—as well as a violation of the right to privacy, and of data protection principles”.

Although this has been a really good debate that has highlighted some very worrying problems, the justice system should be there to support victims. This new measure of using digital devices to obtain evidence brings great worries to victims. All support and encouragement should be for victims who have had the courage to come forward and report the crime. They should have every right to object to the use of their personal data where it is not relevant to the case and not be told that, if they do not do so, it may not be possible to proceed with their case.

Much has been done in recent years to encourage victims of rape to come forward to receive justice and to ensure that the perpetrator is brought to justice. I hope the Minister will be able to reassure us that he will look at this matter, bearing in mind all the comments that have been made. Something must be wrong if so many have raised all the difficulties. I ask the Minister to look at this matter again and I look forward to hearing what he has to say.