Concerns around ‘digging for digital dirt’ – Criminal Cases Review Commission landmark report reveals persisting issues with misconceptions about rape victims.

What was the report and its findings?

The Criminal Cases Review Commission (‘CCRC’) is an independent body which investigates potential miscarriages of criminal justice in England, Wales and Northern Ireland. Anyone convicted of an offence can apply to the CCRC if they have exhausted their rights of appeal but believe that they were wrongly convicted or incorrectly sentenced.

The CCRC conducted a research report analysing 119 applications which were made requesting a review between 2019-2021 where at least one of the offences was rape; all the applicants were male. The purpose of the study was to examine the extent to which digital content evidence may feature in these cases where the applicant is alleging a miscarriage of justice.

Just over half of the applications had cited digital communications evidence as the justification for seeking a review, arguing that had data been used from the complainant’s phone or laptop, it would have undermined their credibility / revealed the applicant’s innocence.

For example, one applicant who had been in a relationship with the survivor two years prior to the sexual assault claimed that her social media posts demonstrated her ‘socialising and uploading promiscuous images of herself’, and her posts were ‘not the actions of a victim’. Another applicant argued that the survivor’s social media posts did not display sufficiently traumatised behaviour and that this warranted a reduction in his sentence.

How does digital content evidence interact with rape myths?

Long before an offender is prosecuted or even charged, digital communications evidence can result in a decision to take ‘No further action’ – however these decisions are often based on rape myths and ‘ideal victim’ stereotypes. Although evidence of this nature can support cases if it corroborates allegations, defence counsel often utilises societal myths and stereotypes about sexual violence when employing this evidence in attempts to undermine the complainant’s credibility.

Countless examples of rape myths are listed out in Annex A of the CPS’ Legal Guidance on Rape and Serious Sexual Offences (RASSO). A couple of examples are as follows:

A ‘real victim’ would not be able to carry on with normal life

Digital material constituting text messages exchanged with the accused after the event might be produced to support this flawed belief.

However, this myth is manifestly incorrect. People respond to trauma in different ways and there is no typical response to rape. Someone’s demeanour and response after the alleged event should never be indicative of whether the event has taken place. It is not to be assumed that a survivor would cut off all contact after a sexual assault or rape.

The complainant’s sexual behaviour - i f the victim had previously consented to sex with the accused a number of times, they must have consented on this occasion.

Digital evidence may be extracted to show a pre-existing relationship or understanding and therefore used to perpetuate this myth.

However, any such material is taken out of context. Consent must not be implied from any flirtatious online messages or sending sexual images (which is increasingly common in the current dating environment).

It also fails to acknowledge that someone can always change their mind, irrespective of whether they had been initially interested in sexual activity.

These rape myths must be called out for what they are – an attempt to blame the victim and invalidate their experience, which in turn can re-traumatise them. Prosectors must not allow rape myths to influence decisions to prosecute, nor should defence counsel use them to infer consent or to discredit the complainant.

When should digital content evidence be obtained?

Digital evidence should not be obtained as a matter of course but rather a fact-specific decision. Prosecutors should not view obtaining digital evidence as essential to solidify a case. This is because Parliament have abolished the need for corroboration in section 32 of the Criminal Justice and Public Order Act 1994. As explained in the CPS’ legal guidance on rape and serious sexual offences:

‘Corroboration is not required as a matter of law. Many RASSO cases will feature limited or no corroborate evidence…. One person’s word can be sufficient to provide a realistic prospect of conviction. A jury can and does convict in such cases’.

There are also concerns around disproportionate data requests being made by the police and/or CPS, intruding into a survivor’s personal life. This could have the worrying effect of deterring others from reporting violence, not wanting to feel under investigation themselves.

Digital material is likely to be extensive. Targeted extraction should occur to identify only ‘relevant material’ (i.e. that which would have some bearing on the offence or person being investigated or surrounding circumstances, as defined in the Attorney General’s Guidelines on Disclosure 2022).

Therefore, it is important for prosecutors and police when considering the use of any digital evidence to maintain a focus on relevance and proportionality.

The case of R v Bater-James [2020] EWCA Crim 790 highlighted the following principles in this context:

1. Digital material should only be reviewed in pursuit of a reasonable line of inquiry and material should only be disclosed if a properly identifiable foundation for the interrogation has been demonstrated, not mere speculation.
2. Investigators should adopt a staged and proportionate approach – e.g. considering whether it is sufficient to view limited categories of data such as an identified string of messages/ emails or communication over a limited period.
3. The complainant should be kept informed about any decisions made about disclosure, length the device will need to be retained, plans of ‘extraction’ and examination and any necessary redactions.
4. The prosecutor and investigator should consider the consequences of refusal – the defendant has a right to a fair trial, and so if the complainant refuses to provide evidence which could be significant to the case, this may jeopardise the fairness of the trial. However, the defendant’s right to a fair trial, though important, isn’t necessarily paramount in every situation and must be weighed up against the complainant’s right to privacy.

How can we help?

In the current criminal justice system faced with these intrusive practices by both the police and the CPS, it is imperative that survivors can access independent legal advice to uphold their rights and challenge unlawful decisions.

It is possible that the police and/or CPS have handled an investigation or prosecution into a sexual assault in a flawed manner.

The Human Rights Department at Saunders Law offers expert legal assistance and representation in civil claims against the police and the CPS to challenge their decision-making. For a free, no-obligation, initial discussion to see if we might be able to help, please make an enquiry online.