Consent forms, which ask permission to access messages, photographs, emails and social media accounts, have been rolled out across the 43 forces in England and Wales.
The move is part of the response to the disclosure scandal, which rocked confidence in the criminal justice system when a string of rape and serious sexual assault cases collapsed after crucial evidence emerged at the last minute.
Police and prosecutors say the forms are an attempt to plug a gap in the law, which cannot force complainants or witnesses to disclose their phones, laptops, tablets and smart watches.
Director of Public Prosecutions Max Hill said digital devices will only be looked at when they form a โreasonable line of inquiryโ and only โrelevantโ material will go before a court if it meets โhard and fastโ rules.
โIf thereโs material on a device, letโs say a mobile phone, which forms a reasonable line of inquiry, but doesnโt undermine the prosecution case and doesnโt support any known defence case, then it wonโt be disclosed,โ he said.
But privacy campaign group Big Brother Watch has dubbed the measures โdigital strip searchesโ and said โtreating rape victims like suspectsโ could deter people from reporting crimes.
Northumbria Police and Crime Commissioner Dame Vera Baird said the forms are just part of the problem as police and prosecutors look to harvest third-party material, such as school records and medical notes.
โThe police are really saying โIf you donโt let us do this, the CPS wonโt prosecuteโ,โ she said.
โIt is a real concern that people will be put off making a complaint in the first place if itโs widely thought they are going to have to hand over lots of personal data โ everyone lives on their phones, particularly teenagers.โ
In the lead-up to trials, police and prosecutors are required to hand over relevant material that can undermine the prosecution case or assist the defence.
The regime came under sharp focus from the end of 2017 after a string of defendants, including student Liam Allan, then 22, had charges of rape and serious sexual assault against them dropped when critical material emerged as they went on trial.
The CPS launched a review of every live rape and serious sexual assault prosecution in England and Wales and, along with police, has implemented an improvement plan to try to fix failings in the system.
Some 93,000 officers have undertaken training, while police hope artificial intelligence technology can help trawl through the massive amounts of data stored on phones and other devices.
In rape and sexual assault cases, prosecutors also now use disclosure protocols previously used in terror trials.
The digital consent forms can be used for complainants in any criminal investigations but are most likely to be used in rape and sexual assault cases, where complainants often know the suspect.
The forms state: โMobile phones and other digital devices such as laptop computers, tablets and smart watches can provide important relevant information and help us investigate what happened.
โThis may include the police looking at messages, photographs, emails and social media accounts stored on your device.
โWe recognise that only the reasonable lines of inquiry should be pursued to avoid unnecessary intrusion into the personal lives of individuals.โ
Scotland Yardโs Assistant Commissioner Nicholas Ephgrave said he recognised the โinconvenientโ and โawkwardโ nature of handing devices to police and admitted: โI wouldnโt relish that myself.โ
He added: โPeople who have been victimised and subjected to serious sexual assaults, for example, thatโs an awful thing to happen to them and you donโt wish to make it worse by making their lives really difficult.
โBut to pursue the offender, the way the law is constructed, we do have these obligations, so we have to find a way of getting that information with a) as much consent as we can, which is informative, and b) with the minimum of disruption and irritation and embarrassment to the person whose phone it is that weโre dealing with.โ
Police and prosecutors have sought to reassure victims of crime that only material relevant to a potential prosecution will be harvested, but the forms state even information of a separate criminal offence โmay be retained and investigatedโ.
They also state: โIf you do not provide consent for the police to access data from your device you will be given the opportunity to explain why.
โIf you refuse permission for the police to investigate, or for the prosecution to disclose material which would enable the defendant to have a fair trial then it may not be possible for the investigation or prosecution to continue.โ
Griff Ferris, legal and policy officer at Big Brother Watch, said urgent reform is needed so victims do not โhave to choose between their privacy and justiceโ.
โThe CPS is insisting on digital strip searches of victims that are unnecessary and violate their rights,โ he said.
Allan, now working with miscarriage of justice campaign group Innovation Of Justice, said it was โcompletely understandableโ that rape complainants might not wish to hand over data stretching back a long time before the alleged offence and with no relevance to the allegation.
REUTERS
