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The UK Information Commissioner has called for law-enforcement agencies to put an immediate stop to the practice of collecting excessive amounts of personal data from rape and sexual assault victims who are currently “being treated as suspects”.

John Edwards, who took on the role of commissioner at the start of this year, has today published an opinion which is intended to serve as guidance for police forces and other authorities on “how to use victims' personal data in compliance with data protection laws”. 

The publication of the 55-page-report marks the culmination of an ICO investigation that found that “victims are being told to consent to handing over extraordinary amounts of information about their lives, in the immediate aftermath of a life-changing attack”.

The regulator said that law enforcement’s failure to “gain the trust and confidence of victims” is a major contributory factor to “very low charge and conviction rates” for rapes and sexual assaults.

“This burden is also not shared equally, as victims of rape are more likely to be female, have a disability and identify as gay, lesbian or bisexual,” it added.

In England and Wales, consent for gathering personal data from third parties is typically sought via the use of so-called Stafford statements, which victims of rape or sexual assault are asked to sign in order to allow investigators to access a wide range of information – including education records, medical notes, and information from online accounts and devices.

In the first of five recommendations made in the report, the ICO indicated that it “expects this practice to stop immediately”. This should be ensured via a mandate issued by the National Police Chiefs’ Council to all forces throughout the country.

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The second recommendation is that the Crown Prosecution Service – and its equivalent bodies in Northern Ireland and Scotland – “should ensure that their prosecutors are fully aware of this Commissioner’s Opinion [and] should be properly equipped to act according to the principles… to uphold the rights and protections of victims”.

Prosecutors and police should also work together to produce new national advice and standardised forms for requesting personal information from third parties, while chief constables of individual forces should also take steps “update policy, guidance, training and other documentation to make it consistent with this opinion”, the ICO recommends.

The final recommendation set out by the data watchdog is that chief constables should ensure their forces “have appropriate policy, guidance and training for the ongoing management and retention of personal information relating to victims”.

Edwards said: “Our investigation reveals an upsetting picture of how victims of rape and serious sexual assault feel treated. Victims are being treated as suspects, and people feel revictimised by a system they expect to support them. Change is required to rebuild trust that will enable more victims to seek the justice to which they’re entitled. This work brings home why we do what we do at the ICO. This Opinion isn’t about data protection and data processing, it is about relationships, trust, human rights and human dignity.”

‘Forced out of the process’
Claire Waxman, appointed by London mayor Sadiq Khan in 2017 as the city’s first victims’ commissioner, wrote to the ICO the following year urging it to launch an investigation into the impact of Stafford statements on victims.

Now such an investigation has concluded, she said its findings “make sadly familiar reading”. 

“The message is clear: the justice system is asking too much of rape victims and denying them justice,” she added. “I originally called for this investigation after hearing about the invasive and disproportionate requests being made of victims and the lack of support in understanding their privacy rights, making rape victims feel like they were the ones on trial and forcing them out of the process. I am yet to see a case where primary school records or counselling notes hold any relevant information, yet these requests are regularly made. The findings of this report, and many others, show that more must be done to safeguard rape victims’ privacy.”

"Victims are being treated as suspects, and people feel revictimised by a system they expect to support them. Change is required to rebuild trust that will enable more victims to seek the justice to which they’re entitled."
John Edwards, information commissioner

Waxman’s counterpart at national level – victims’ commissioner for England and Wales, Dame Vera Baird QC – said: “Excessive intrusion into irrelevant and deeply personal data of rape complainants has become habitual in the justice system, despite my and others’ vocal protests over many years. Commissioner Edwards cites the deep personal impact this can have on rape complainants and I share his view that this has played a crucial role in the collapse of rape prosecutions.”

Baird added: “I am pleased we now have the authority of this key report to add to my own calls on the Crown Prosecution Service and the police to immediately stop the excessive and over-intrusive requests for personal data. The government must now legislate to limit the pursuit of third-party material in the Victims’ Bill.”

Edwards’ intervention was also welcomed by Jayne Butler, the chief executive of the Rape Crisis England & Wales charity, who claimed that his “recommendations have the potential to drastically improve the experiences of victims and survivor’s going through the criminal justice process”.

“For far too long the police and CPS have been requesting, and at times, demanding unreasonable and excessive amounts of personal data from rape victims and survivors. It feels like to report a rape is to effectively give up your right to privacy: to expect justice you must expect scrutiny,” she said.