Controversial consent forms giving police access to phones and other devices in criminal cases are to be replaced, after they were criticised by the Information Commissioner’s Office.
In 2019 the National Police Chiefs Council and Crown Prosecution Service announced they were introducing standardised consent forms for allowing access to phones and other devices. However, the Centre for Women’s Justice said the forms were unlawful, discriminatory and led to excessive and intrusive disclosure requests.
The centre brought a legal challenge on behalf of two women, which was put on hold pending the ICO’s investigation report on mobile phone data extraction by police forces.
The ICO's report, published last month, said the NPCC-circulated digital consent forms did not make clear what the underpinning lawful basis for an extraction was and that the forms should not be used as currently drafted.
Today, the NPCC confirmed that the forms will be replaced with an interim version from 13 August. The College of Policing will produce guidance on investigative practice when mobile phone investigation is needed.
Assistant chief constable Tim De Meyer, NPCC lead for disclosure, said: ‘Police and prosecutors have a duty to pursue all reasonable lines of enquiry in every investigation, and to disclose any material that undermines the case for the prosecution or assists the case for the accused. This is a fundamental principle of our criminal justice system, which ensures that trials are fair.
‘It is important that this process is consistent for investigators across the country. No victim should feel discouraged from reporting a crime to the police. Searches of digital devices should not be automatic and will happen only when the investigating officer or prosecutor considers there to be a need to access information to pursue a reasonable line of enquiry. We will still explain this process fully to victims and witnesses.’
Solicitor Harriet Wistrich, director of the Centre for Women’s Justice, said: ‘We are relieved that these forms have finally been withdrawn from use, but they should never have been used in the first place. Their effect has been to delay rape cases and deter many victims from coming forward or continuing with their cases.’
The centre’s legal challenge was funded by the Equality and Human Rights Commission.
EHRC chief executive Rebecca Hilsenrath said: ‘Digital data extraction forms are an invasion of privacy at a time when victims of crime are at their most vulnerable. There is no evidence that they are necessary in building a case. As they are predominantly applied to survivors of rape or sexual assault, they disproportionately impact on women and act as a discriminatory barrier to justice.
‘We are proud to have assisted in the challenge by two brave claimants who brought this issue to the fore with the Centre for Women’s Justice. We welcome the decision from the NPCC and hope it leads to improving confidence in the justice system on the part of survivors of sexual assault.’