Thread by @AdamWagner1

These new forms seeking that people making rape allegations allow police to examine their mobile phones is troubling from a right to privacy perspective

This short thread explains why /1

bbc.co.uk/news/uk-480862…

I understand why police are seeking the phones. And according to the BBC they will only seek relevant information.

But. What other criminal area requires a an alleged *victim* to submit to such a wide ranging search? Rather seems to reverse the burden of proof /2

The major issue I have from a human rights perspective is that any invasion of privacy by a public authority must be *proportionate*, that is you can’t use a hammer to crack a nut. /3

A phone may have relevant info about an alleged crime but it will inevitably have an enormous amount of information which has nothing to do with the allegations - photos, texts, emails...

Why should the police be digging around this? /4

It will inevitably have a chilling affect on people making allegations to the police.

Victims may decide not to go ahead not because of relevant details but because of irrelevant ones. They may also be worried about the police picking up another crimes such as drug use /5

There must be ways of achieving the police’s aim, which is not to miss relevant evidence which could exonerate a defendant, without the alleged victim handing over their entire digital life to the police /6

For example, in ordinary litigation a person’s solicitor handles relevant disclosure, filtering out irrelevant documents in the interests of their client. It is incredibly unorthodox for the police to be doing it for a victim /7

The police may also be in breach of their investigative obligation under article 3 (inhuman and degrading treatment) as they may be making rape investigations too difficult to achieve. I think this sounds like a bad idea and I expect the planned litigation may succeed /8

To respond to a few comments (thank you)

- I accept that in the investigation of a crime (as opposed to a criminal trial) the complainant won't necessarily have lawyers. So it's not the same as 'ordinary' litigation (e.g. civil or criminal trial). But... /9

... this feels like a situation where asymmetry of power between police, holding keys to someone's entire digital life, & complainant is so great - and potential for abuse so real - that it may be necessary to bring a third party in to represent the complainants' interests /10

- On whether this is the police or the CPS requesting the details, I don't know - appreciate that police may be sometimes under pressure from the CPS but the BBC article mostly talks about police investigations /11

Zooming out, I appreciate that given how much valuable evidence there may be in the digital realm, there has to be consideration given on how to bring that to the investigator. But in the GDPR and Article 8 world, it not OK to trawl vast quantities of private data to find it /12

The system as presented in the news sounds like it has the balance wrong - between privacy, need to investigate serious crime & protect both complainants people complained against. It may be that there is a clever solution to be found rather than panicking into bad outcomes /13

Also, on the burden of proof - the burden of proof is not on the victim, it is on the *prosecution* to prove guilt. This does rather sound like treating the victim (or making the victim feel like they are being treated) as a defendant /14

Good responses from perspective of ensuring cases are properly investigated - eg @DghSpanishWelsh.

I do think we are in uncharted territory though as never before have humans recorded practically their entire existence in one place. That record should be jealously guarded /15