Police have been unlawfully obtaining rape victims’ school and medical records and must stop or face sanctions and fines, a watchdog has said.
The Information Commissioner’s office (ICO) has released a legal opinion on data gathering in sexual offence investigations that aims to enforce compliance with the law.
It says that police have been violating data protection laws and that if they do not follow the requirements set out “it is likely that the ICO will take enforcement action”.
John Edwards, the Information Commissioner, told The Independent that the document - called “Who’s under investigation?” - was a “line in the sand”.
“We’re going to make our expectations clear and what the law means, and that means that when we come to look at allegations of poor practice there will be no excuse,” he added.
“Police investigative practices for rape and serious sexual offences are overly intrusive, overly information hungry and are being experienced by victims as re-victimising and traumatising, causing a not insignificant portion of them to withdraw from the process.”
Mr Edwards said the watchdog would be asking advocacy groups to flag violations by police forces, adding: “We’ll go in - we might audit, we might investigate.
“If we find poor practices we can issue enforcement notices, and if we find places aren’t responding we can actually issue fines.”
The Information Commissioner has ordered all police forces to stop using statements or forms to obtain rape victims’ “general consent” to obtain personal information from third parties.
“Any personal data obtained relating to a victim must be adequate, relevant, not excessive and pertinent to an investigation,” said a report released on Tuesday.
It comes amid warnings that unnecessary intrusion has been causing victims to drop out of prosecutions, and delaying investigations that can take years to reach court.
Only 1.5 per cent of recorded rapes and 3.5 per cent of all sexual offences now result in a charge in England and Wales.
The ICO said that current practices were undermining trust in the criminal justice system, and that more victims may feel able to pursue prosecutions “if there is no unnecessary intrusion into their private lives and those of friends and family”.
Police and prosecutors have defended requesting rape victims’ mobile phones and personal information, including school and medical records, as a necessary safeguard to ensure that cases do not collapse if new material is later uncovered by the defence.
The ICO said that material can still be obtained, but in a more focused and limited way, and where third parties are informed about how it could be used.
Mr Edwards said that police sometimes have “no idea” whether telecommunications companies, councils, schools, social services and mental health providers and other bodies hold information relevant to an investigation.
“That’s not good enough, they couldn’t do that with the offender,” he added.
“Police need to think about every single request for information and draw a really clear link between that and the offence under investigation. They can’t chase down every possible speculative lead or line of enquiry to undermine a victim’s credibility, when they are actually trying to establish the circumstances of a serious sexual assault.”
A previous intervention by the ICO caused police to change the way they obtained and searched victims’ mobile phones, after women reported they were told that investigations would be stopped unless they consented to a full download of their messages, photos and social media.
The End Violence Against Women Coalition said the practices have been reinforcing victim-blaming and rape myths
Rebecca Hitchen, head of policy and campaigns, added: “We call on police leaders, the CPS and the Attorney General’s Office to heed the Information Commissioner’s warning and urgently show how they are addressing this breach of survivors’ rights.”
Dame Vera Baird, the Victims Commissioner for England and Wales, said the ICO document was “unequivocal in its condemnation of what’s been happening so far, and pretty clear that it has to stop immediately”.
She told The Independent she would be pushing for limits on the use of third party material in rape cases to be inserted into the government’s new Victims’ Bill.
“We are going to look for legislation to stop intrusive third party search, any search of pre-trial therapy notes, and to guarantee anyone whose private material is being looked for can get independent legal advice to help them fight off unreasonable demands,” Dame Vera added.
Claire Waxman, the London Victims Commissioner, said the justice system was still “asking too much of rape victims and denying them justice”.
“We need the government to urgently introduce free, independent legal advice for rape victims, to help them navigate the complex and opaque processes around data requests,” she added.
“Moreover, they must use the upcoming Victims’ Law to strengthen the victims' right to privacy, to help prevent these disproportionate requests being made in the first place.”
Last week, the attorney general’s office released new guidelines aiming to stop invasive and disproportionate requests for victims’ private information.
It said therapy notes and medical records are only sought where appropriate, proportionate and balanced with the right to privacy.
The guidelines impose a requirement for investigators or prosecutors to justify why the material is being accessed before it is obtained.
The Crown Prosecution Service (CPS) has separately released new guidance pre-trial therapy for rape victims, aiming to alleviate concerns that getting help can damage prosecutions.
But it said that counselling notes could still be requested when “specific and necessary”.
The Centre for Women’s Justice raised concerns that differences between the ICO and attorney general’s guidance would mean “excessive and disproportionate requests” for rape victims’ data are not stopped.
“Both are contradictory and confusing and will not help police officers or therapists to understand what the law is, or improve confidence of survivors in the legal system,” a spokesperson added.
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.
“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.”
