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15.05.19

Police request access to complainants’ data: A form in a teacup?

A new standard police form requesting agreement to access complainants’ phone data has caused controversy.

The not-very-snappily-titled ‘NPCC Final Consent v-1-2’ form is designed to achieve a consistent system for accessing the electronic devices of victims and witnesses. A copy is available here. This can only be done with that person’s consent. As such, the form does not represent a revolutionary idea. It seems to have been designed to reflect what is already happening. However, it is being widely misunderstood, and those who drafted it are far from blameless in this.

The idea is a simple one, namely that the police are seeking out the truth. If they think that accessing a person’s mobile phone/ device represents a reasonable line of inquiry to reveal the truth, then they will request the person signs one of these forms. If a crime is alleged between two people who were in previously communicating electronically, it is a reasonable inquiry to want to read over those communications. The technology might be new, but the principle is not. For example, police would always ask to see a victim’s personal private diary or medical records where it is relevant to their criminal complaint.

But the devil is in the detail of each request. Questions which are not easily resolved by the NPCC form are:-

1. Under what particular circumstances should police ask for access?
2. How discreet / targeted will that access be?
3. Will the phone’s owner be allowed to be present when access is obtained?
4. Who decides when this access is critical to the investigation/ prosecution? Can that decision itself be challenged?

These questions, by their very nature, are very specific to the facts of each case. One of the limitations of providing a ‘standard form’ is that it appears this request is being rolled out to each and every victim of crime, in particular victims of sex offences. In this way, the desire to achieve consistency has only achieved alarm and mistrust.

There are three levels of analysis. Access is limited to the level which the person has authorised:-

Level 1 – Logical (a cursory look though the handset without specialist equipment)

Level 2 – Logical or physical (can include a copy of the memory chip/ card being taken, and sometimes retrieval of deleted data)

Level 3 – Expert or bespoke methods. The form’s guidance states that these extractions may result in damage to the device or permanent loss of data. Indeed, parts of it read more like small print exclusion clauses than guidance for victims.

But even on Level 1, who decides what is necessary, and why? Are all WhatsApp threads to be read? Are all photos going back six months, or 12 months, to be looked over? All social media postings? Going back over what period? It seems to be the investigating officer who makes all these decisions. This person might be a lowly police constable or trainee detective constable. Can they be trusted? Will they have sufficient training to use this access proportionately? It is a difficult balance. On the one hand, any defence case has to be considered fairly. On the other, the privacy of the complainant must be respected.

The Chief Executive of the College of Police claims that in the past year, around 93,000 ‘police officers and staff’ have been undergone disclosure training (see above link) to ensure they appreciate that providing the defence with timely access to relevant evidence is obligatory. But, as there are only 122,000 police officers in the whole of England and Wales, one suspects that many of those 93,000 were ‘staff’, not police officers. Also, training 93,000 people within one year suggests that on average almost 2,000 were trained per week. So this training may have been rather brief. Indeed, it might be optimistic to believe that there are now 93,000 properly-trained staff able to properly balance decisions of privacy versus disclosure.

Predictably, the NPCC form explains that if evidence of a crime is found on the phone, that data might be retained and investigated by the police. But it then goes on:-

“If your device contains information that may assist in the prevention or detection of crime, or protecting the vulnerable, then the police may process and retain this information on our intelligence management system and/or share that information with relevant parties/ agencies, including other police forces or government agencies including those outside of the UK”

Presumably this means, in theory, certain information on a victim's phone might be passed to any number of bodies including Social Services, HMRC or the FBI. Another 'small print' warning which is less than appealing.

The form goes on to say:

“If you refuse permission to 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. If a prosecution is able to continue then the defence representatives will be told of your refusal and a judge may order disclosure to take place. If this happens, you will be given the opportunity to make representations to the court about the reasons why you object”

In this way, what started off as being a mere request for access to relevant material, now begins to sound rather heavy-handed, as though the victim of a crime is being hauled in front of a Judge and a cabal of ‘defence representatives’ to explain themselves. It is not surprising that victims' groups have found this form so alarming.

Frustratingly, there is little actually wrong with the principles at play here, which are simply ensuring a proper investigation and a fair trial. But, in effect, the victim retains a ‘veto’ on that fair trial, in the sense that without the victim’s cooperation then a fair trial might be impossible - which, of course, means there should be no trial. Again, there is nothing particularly new about this idea. Frequently, fair trials cannot happen without cooperation and disclosure from the victim. This is why victims give their truthful statements in the first place, or undergo medical examinations at 3am, or hand over all their clothes to a total stranger. These are clearly horrible processes which can only happen voluntarily, and which are made no easier by then being asked to give one’s mobile phone and signing up for ‘Level 1 access’. Nevertheless, this may be necessary in any fair system.

At the same time, personal data is precious, and should be guarded with sensitivity. However necessary the police request, a victim's cooperation typically comes down to trust in the investigator, typically a police officer. As the Director of Public Prosecutions Max Hill, QC said when explaining this process, “trust and confidence” are key. Sadly, it seems police will now receive a lot of refusals to sign the access forms, and then a lot of challenges should they then drop the investigation as a result. But this will not be because police are wrong in principle to ask, but because they are not trusted in practice to carry out these inquiries proportionately. All too often, the twin causes behind that lack of trust are austerity and delay. Are there really enough qualified officers to deal with victims’ phones swiftly and proportionately? The public mood is clearly dubious about this, and the use of a 'one size fits all' form doesn't help at all. What officers needs to do is set out, on a case-by-case basis, precisely and discreetly what material from each device they are interested in, and the specific reason they are interested in it.

It is one thing to say “We want to look over your WhatsApp chats, madam”. But it is quite another to say “The suspect has claimed you sent numerous WhatsApps last week declaring your love for him. Do you mind if we check your phone to see if that is true, only you didn’t mention this in your report and we suspect he might be lying.”

The key to gaining trust is being specific on the detail, and well-prepared to answer questions. Never in human history has trust been gained by rolling out a standard form.

 

At Brett Wilson LLP we advise those involved in police investigations and data requests about their rights. For more information, please click here.


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Articles are intended as an introduction to the topic and do not constitute legal advice.


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