A Reflection on Practising Law in the (British) Internet Society Part 1: Mobile Phones

To practise as a lawyer within the British internet society is to operate within a system so tied to ceremony and tradition that it has failed to homogenize the pervasiveness of technology with the inherent counterbalance to state intrusion that criminal courts are tasked with providing. An examination of one of the items that has become a single focus of 21st century prosecution - the cell phone – a device uniquely present in almost all modern prosecutions, reveals this lived reality.

In Britain, as a matter of routine, the majority of police forces undertake ‘digital strip searches’ of cell phones they come into contact with. This allows for the full download of a device, notwithstanding the status of the owner: suspect, witness or victim. The underlying manifest breach of privacy rights is not a consideration.

The starkness of this practice is presented in the situation of complaining witnesses making sexual assault allegations. Regardless of the circumstances, all are asked to provide their phones for interrogation. Those who refuse risk having their cases dropped by the prosecuting services. In 21st Century Britain, in order to be treated fairly by the criminal justice system, a complaining witness needs to be willing to give up his or her privacy rights.

The situation is further reflective of the wider failings of the Criminal Justice System with regards to the failure to protect privacy rights. How the system adapts, or fails to adapt, to the fundamental changes brought about by the digital age, will have a profound impact on how the courts operate as safeguards to State overreach.

Digital Strip Searches

The private company whose technology is used to facilitate many of the downloads, MSAB, recognizes the inherent value of the digital strip search, “If you have access to a sim card you have access to the whole of a person’s life”. The practice is undertaken with no clear guidelines on the storage of such information and without consideration for the collateral intrusion regarding those who are not subject to the enquiry being conducted. The statutory basis for the conduct is at best questionable and is applied inconsistently amongst forces.

The Disclosure Process

The justification for the practice of digital strip searching is the disclosure process and the wide-ranging investigatory obligations placed on the police. Under the disclosure system, the police and prosecution are obliged to pursue ‘all reasonable lines of enquiry’ and provide to the defendant all evidence they rely upon. In addition, the prosecution are obliged to disclsose all previously unused material that “could reasonably be considered capable of undermining the prosecution case against the accused, or of assisting the case for the accused” as well as inform the defence of the lines of enquiry pursued.

Disclosure is not the same as carte blanche provision of the keys to the proverbial warehouse. A defendant would need to articulate, in writing, why the material is relevant. This material may be edited and redacted and is subject to inherent undertakings to not be shared or distributed.

In ‘relationship’ rape cases – those where the complainant and the defendant are known to one another: semi-stranger, acquaintance or friend, the issue in the case is likely to be consent or reasonable belief in consent – both of which provide full defences. The nature and contents of previous communications, often found on cell phones, are likely to be matters to be relevant to conduct and perception of the conduct. The cases of false allegations are rare, but those cases in the grey area of consent turn on the nature of the relationship both pre and post the purported assault and in that way the messages can and have been shown to be highly relevant. High profile examples include the Liam Allen and Danny Kay cases.

A Solution

From the perspective of a defence practitioner, it is tempting to advocate for equal access of digital data for both prosecution and defence. This in some way addresses the embedded imbalance, however, to do so does not address the constitutional significance of the inherent loss of privacy.

The process advocated for is one common to the criminal justice system and the notion of minimal State intrusion. It would involve applying the safeguards embedded into the search warrant criterion – whereby access is not provided for, in law, unless expressly authorized. Extending the warrant system to apply to digital material, whilst imperfect, introduces specificity and ensures judicial oversight. Most importantly it ensures that the police must show to a judge on oath, reasonable grounds that the material sought is likely to be relevant evidence. A warrant once granted, only allows for specific as opposed to unfettered access, and is subject to proportionality considerations. This approach would at least ensure parity between searches of the digital and the personal property. Whilst in some cases, the warrant application process will be routine, this approach at least prevents blanket searches and would ensure both the need for as well as a remedy against (un)lawful and proportionate collection of evidence.

Conversely, the current solution adopted by the prosecution service require complainant’s to sign a consent form - the Digital Processing Notice (DPN) providing for blanket consent to non-specific and unlimited amounts of data being obtained. The approach is fundamentally flawed in that victims of crime are not in a position to sign away their rights, and consent can rarely be deemed to be ‘informed’ with regards to the complete derogation of digital rights.

Do Right & Fear No-one

In a digital society, actors in the Criminal Justice System have not woken up to the need to ensure new safeguards as against state intrusion. Unquestioning reliance in the historical belief that police are just citizens in uniform’ has allowed a surveillance State to thrive. Digital strip searches are but one example. Now is a defining time for the new and innovative counterbalances and for those involved in the system to, as my mentor said to me on my first day in court “do right and fear no one”.

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