Jeremy Corbyn, Shami Chakrabarti and Harriet Harman all have difficulties with the idea of complainants in rape cases being asked to hand over their mobile phones as part of a police investigation. Corbyn has described it as a ‘disturbing move’.
It is nothing of the sort.
No change in the law has taken place. Instead, rightly stung by a series of recent cases in which evidence from mobile phones suggesting innocence was withheld from the defence until the last minute, the National Police Chiefs Council and the Crown Prosecution Service have agreed on a standard form to give to complainants when investigating sexual offences.
It deals with those cases – not every case – in which the police believe that a complainant’s mobile phone should be examined as part of an investigation into a sexual offence.
Rape allegations almost always relate to incidents which took place in private. Without any independent witnesses, juries can be left trying to decide who is telling the truth based upon little more than whether the complainant or the defendant looked more plausible or shifty. Since most human beings are hopeless at spotting liars, this is a task fraught with the danger of producing the wrong verdict.
The smart-phone goes some small way towards solving this problem. Amongst the vast quantities of information stored, not just text messages, but photographs, videos, voice recordings, social media conversations and information about locations and timings, there is often material which may be relevant in a rape investigation.
That is why when a man is arrested for rape, seizure of his mobile phone is almost automatic. It will be carefully examined – with particular attention paid to embarrassing pictures and anything touching on his sex life – and it often throws an entirely different light on his account. Sometimes it is damning, sometimes it exonerates him, often it is equivocal.
It is highly invasive of his privacy, but that is in the nature of a criminal investigation. Whilst still innocent in law, a rape suspect loses all his privacy. If the police are doing their job properly, and considering all reasonable lines of inquiry, his home, his body, especially his genitals, and his phone are all searched for evidence. Nobody suggests for a moment that his right to privacy should trump the right of the complainant to have her complaint fully investigated.
She too inevitably surrenders much of her privacy when she makes a complaint. If the allegation she is making is of a recent rape, she too will probably be asked to undergo a forensic medical examination. However sensitively it is done, it is a ghastly process, but often an investigation cannot proceed without it.
Sometimes examination of her phone is equally, or even more, necessary for a fair investigation.
Yet for some reason, to say that the complainant’s phone should be scrutinised is considered by many a heresy: it is ‘deterring victims from coming forward,’ it is exposing victims to a ‘digital strip search’. As Shami Chakrabarti put it:
‘Women, who are the overwhelming majority of rape victims, are already discriminated against in judicial system. A trawl through their social media only reinforces the idea they are in the dock.’
Her reference to ‘the dock’ is revealing. The dock is where defendants sit during an English or Welsh criminal trial; it is not where a witness’s evidence is judged. A defendant’s evidence, like that of his accusers, is judged when he is in the witness box. It is the same witness box for both sides (albeit often replaced these days by a video link for complainants in sexual cases). Judges instruct jurors that they should ‘assess the witnesses for prosecution and defence by exactly the same fair standard.’
Lady Chakrabarti seems to be saying, on the contrary, there should be one standard for the man in the dock, and a different, more forgiving, standard for his accuser. She is happy that the man in the dock should have his phone investigated, yet appalled that the same thing should happen to his accuser. That is not a call for justice, but for prejudice.
Most fair-minded people are pleased that we still have a system in which it is possible for an accused person to say that he is innocent, and that his accuser is a liar; and a system in which the job of the police is – however imperfectly carried out in practice – at least in theory that of an impartial investigator.
Investigation, to coin a phrase, means investigation. It does not mean ‘believing the victim’ and investigating only things that are likely to support her account.
There certainly are serious privacy issues that the police need to bear in mind. Not all investigations will need to examine a mobile phone. There need not be, and there is not, a blanket requirement for complainants to surrender their phones. Nor should there be, and there is not, any question of a complainant’s phone being handed over to the defence – all that will be disclosed is material that might legitimately undermine the prosecution case or support the defence. If we want rape trials to be fair it is very hard to see what is wrong with that.
Matthew Scott is a criminal barrister at Pump Court Chambers.