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Information Commissioner calls for end of 'excessive' data demands

Forces must reduce the amount of data collected for rape investigations, a watchdog has said.

Demands for ‘excessive’ personal information for prosecutions in rape and sexual assault cases must be rejected, the Information Commissioner has warned.

Being asked to consent to handing over extraordinary amounts of information about their lives in the immediate aftermath of a life-changing attack is unreasonable, the Information Commissioner’s Office has ruled.

The call is published in a formal opinion by the ICO which informs the sector how to use victims' personal data in compliance with data protection laws.

Currently, police in England and Wales ask survivors to consent to a ‘Stafford statement’ which gives investigators access to information including school records, medical histories and social service records.

The UK Information Commissioner expects this practice to stop immediately.

John Edwards, UK Information Commissioner, said: “Victims are being treated as suspects, and people feel revictimised by a system they expect to support them.

“Change is required to rebuild trust that will enable more victims to seek the justice to which they’re entitled.”

The demand adds to pressure on officers who have already been told by the government that they must increase the number of successful prosecutions.

And the CPS is under pressure to implement demands from the Attorney-General to get evidence to support a charge earlier.

A CPS spokesperson said: “We are working jointly with police and criminal justice partners to get this right and rebuild confidence, by providing early advice to focus the investigation on relevant lines of enquiry and looking at the suspect’s behaviour before, during and after the alleged incident.”

But the ICO said the burden was falling unequally on survivors.

Campaigners have highlighted how mobile phones are being taken for months at a time for analysis. But other disclosure issues are also being raised.

Demands for information are controversial; officers can even demand notes from therapy sessions if they believe it is relevant which mental health experts have warned would destroy the crucial understanding between client and therapist.

Mr Edwards said: “This Opinion isn’t about data protection and data processing, it is about relationships, trust, human rights and human dignity.”

Ministers were told they must now step in and change the law to limit what information can be handed over.

The Victims’ Commissioner for England and Wales, Dame Vera Baird QC, said: “I am pleased we now have the authority of this key report to add to my own calls on the Crown Prosecution Service and the police to immediately stop the excessive and over-intrusive requests for personal data. The government must now legislate to limit the pursuit of third-party material in the Victims’ Bill.”

She added: “Excessive intrusion into irrelevant and deeply personal data of rape complainants has become habitual in the justice system, despite my and others’ vocal protests over many years.

"Commissioner Edwards cites the deep personal impact this can have on rape complainants and I share his view that this has played a crucial role in the collapse of rape prosecutions.”

The CPS has already refreshed RASSO legal guidance on when it is reasonable to make requests for personal data such as mobile phone downloads following the rapid growth in digital evidence.

A CPS spokesperson said: “Prosecutors and investigators are asked to carefully consider when it may be necessary to seek a complainant’s personal data.

“Both the law and our guidelines set out clear parameters police and prosecutors must follow when making requests - they must be specific and only sought when necessary. Defence should be passed this information only to comply with our legal obligations where information is capable of undermining the prosecution case or assisting the suspect.”

Police chiefs said they had already been aware of the issues raised by the commissioner and were implementing recommendations. 

The National Police Chiefs' Council also urged officers to check updates on best practice that have been issued.

Assistant Chief Constable Timothy De Meyer, National Police Chiefs’ Council Lead for Disclosure, said: “In September 2021, we launched the Digital Processing Notices (DPNs) and the College of Policing also produced Authorised Professional Practice that set out the approach forces should take when seeking to access personal data on the devices of victims and witnesses. 

"These notices put into practice a Court of Appeal judgment and were produced after careful consultation with victims groups. The NPCC has also been consulting with the ICO, Victims Commissioner, Crown Prosecution Service (CPS) and other stakeholders to produce Third Party Material Information Notices," he said.

"These notices will address the recommendations in the ICO opinion and will enable a fair and consistent approach to third party material across forces. The notices are due to go out for wider stakeholder consultation in June.

“Policing recognises that more must be done to see the response to rape and sexual offences improve. We are committed to this and are working closer than ever with the CPS and partners across the Criminal Justice System.”

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