Should rape victims be asked to hand over their mobile devices to the police?
There has been much publicity on this topic of late with many groups objecting to the proposals. Here we look at both sides and whether this is something new.
In any criminal case there is a duty to investigate. That means to investigate the victims account and the defendant’s account usually after being interviewed under caution.
What we see in criminal defence cases more and more is a failure to disclose material, which the prosecution has in their possession that could undermine their case or assist the defence. This invariably includes data from mobile devices.
Cases have collapsed because of this failure; resulting in wasted police time; court time; and most importantly distress to both parties. Not to mention the cost of defending such an allegation.
There are undoubtedly cases where material from a mobile phone is crucial to the victims’ case.
For a defence case it can show inconsistencies in the victims account and or provide credibility to the defendant being accused.
In any reasonably line of enquiry; the police already have the power to obtain this material from the service provider with the correct application being made to a court under the Regulation of Investigatory Powers Act 200 (RIPA) .This method has been in use for many years.
The new recommendations could be a costs/time cutting exercise now the police can download all the data themselves without having to use the route of Regulation of Investigative Powers Act 2000 (RIPA).
Despite the way in which some are presenting the issue law firms who are used to dealing with serious offences know that these issues are not new but sensationalism whipped up by media frenzy about victims’ rights, but should we not also be considering a defendant’s right to a fair trial? People who are entirely innocent can have their family life destroyed, their business ruined, and their reputation in tatters with no recourse after waiting months or years for the whole truth to come out in front of a jury and their innocence to be clearly displayed to the world or at least to those who have not just moved on to the next piece of sensationalized news after having decided the defendant’s guilt a year earlier without having access to the defendant’s evidence.
It is unfortunate that cases do come before the courts where false accusations have been made and it is only through having a tenacious defence team where that proves to be invaluable.
In such cases disclosure material including mobile phone records are found to have been in the possession of the police and CPS who have failed to disclose it to defence teams when they ought to have done.
This blog was written by: Lynn Mahon
DISCLAIMER: Please note that this post sets out the general position under the general law. It should not be acted upon in any specific circumstances without taking specific legal advice as to those circumstances. Also, it should not be relied upon, acted upon or treated as a substitute for specific advice relevant to particular circumstances. If you do require specific advice please contact us for assistance.