Access To Complainants' Mobile Phones In Criminal Investigations – Is It Really An Invasion Of Privacy?

It has been widely reported that complainants in cases involving allegations of rape and other sexual offences are being asked to complete consent forms and hand over their mobile phones to the police for the contents to be downloaded and reviewed, or face their complaints being dropped. It is said that two complainants are planning a legal challenge against this policy and that the Information Commissioner's Office is currently investigating.

What some arguably misleading headlines fail to account for is that mobile phone analysis of both a suspect and a complainant can often be ''reasonable lines of enquiry' in any police investigation and such, just like any other form of evidence such as CCTV or clothing, the police have a duty to investigate it. There are many different circumstances in which such a request for a mobile phone may be made by the police, particularly where there is contact between complainants and third parties. Because of the methods in which people communicate nowadays, many 'first accounts' of alleged criminal conduct are made from mobile phones or through social media messaging platforms. This form of evidence is often contemporaneous and valuable in the absence of other corroborative evidence.

The notion that police investigators and prosecutors are giving unfettered access of complainants' mobile downloads to defence lawyers and their clients is simply (and rightly) incorrect. The starting point is the statutory test for disclosure as set out in the Criminal Procedure and Investigations Act 1996, which requires the prosecution to disclose its case on the defence together with any material which might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the defence. This test is highly fact-specific and necessitates the defence to set out its case in detail in the form of a defence statement. This prevents the defence being given the 'keys to the warehouse', i.e. being given unrestricted access to any and all material obtained in the course of an...