In January 2017, a 30-year-old man reported himself to the Metropolitan police. He informed officers he had been having sex with a minor and had potentially given him a sexually transmitted infection. The minor, a 12-year-old boy, confirmed the details of the abuse and rape to police officers in February 2017.

Despite the age of the victim, which meant the case was a matter of statutory rape with no defence of “mistaken reasonable belief”, and the admission by the perpetrator, the Crown Prosecution Service (CPS) said a review of the boy’s phone was required for a charging decision to be made. Among the data the Met’s specialist unit were instructed to extract and review were 40,000 messages from the boy’s phone.

The boy’s family instructed lawyers at the beginning of 2018 when they became frustrated by the failure to promptly charge and prosecute the perpetrator. The boy’s lawyers repeatedly asked the CPS and the Met why an extensive review of 40,000 files of personal data was required for a charging decision to be made. In June 2018, the CPS maintained that charges would not be pressed until police had reviewed the data on the minor’s phone. Days later, the Met informed the boy’s lawyers that his phone was still three to four months away from being examined as “post-charge cases take priority”.

“The response demonstrated the incongruous situation that many victims of serious crimes, like our client, may find themselves in. On the one hand, our client was told by the CPS that an unlawful electronic review of his personal data had to take place prior to a charging decision, but on the other hand the police force responsible for such a review admitted that they prioritised reviews of electronic data only in cases where a charge had been made,” Rachel Harger, a solicitor at Bindmans LLP, says.

Following a pre-action letter for judicial review, a charging decision was made, almost a year and a half after the incident had been reported. The perpetrator was convicted on 20 September 2018 after he pleaded guilty to offences, which included rape, attempted rape and sexual touching of a child under 13. Aamna Mohdin

Q&A Why do the police want rape victims' phones? Show Hide Police guidance states that when investigating a crime: "Mobile phones and other digital devices such as laptop computers, tablets and smart watches can provide important relevant information and help us investigate what happened. This may include the police looking at messages, photographs, emails and social media accounts stored on your device."

In investigating rape or sexual assault, the police my use that data to verify where a victim was at the time of assault, and if they had prior contact with the suspect. They are also obliged to disclose evidence to the suspect's defence teams. Defence lawyers have accused police and the Crown Prosecution Service (CPS) of failing to hand over crucial digital evidence in rape and assault cases that would have exonerated their clients. Victims of rape and serious sexual assault who refuse to give police access to their mobile phone contents have been told they could allow suspects to avoid charges, and cases have been dropped. There is an underlying problem for police in the sheer volume of text, video and call records now available in even routine cases, and particularly in domestic abuse or sexual assault allegations involving people who already know each other - and this has been a factor in the sharp drop in the number of cases reaching court.

Barbara’s story

The string of high-profile historical sex abuse cases following the death of Jimmy Savile prompted Barbara to come forward to police to report the abuse she had suffered at the hands of a family friend in the 70s and 80s.

“I didn’t think I would ever report it. I didn’t think I was strong enough and I didn’t think I would be believed,” Barbara says. It took a year to find the perpetrator and four more women came forward to report abuse by the same man.

However, once the case was being investigated, Barbara was asked to give police access to the contents of her phone. “When they asked for my phone I felt like I wasn’t believed. I felt like I was under investigation. Mobile phones weren’t invented when I was abused in the 70s and 80s,” Barbara says.

Barbara agreed to disclose the entire contents of her phone to the police, including Facebook and WhatsApp messages, in order to pursue the case. “I don’t think the police particularly wanted to do it. The argument was that if I didn’t give my phone over it looked like I had something to hide. If they didn’t have my phone, his defence might be able to say that I had colluded and that could place reasonable doubt in the jury’s mind. I felt like I didn’t have anything to hide but I was devastated.”

Her phone was not returned for seven months. “They took away my means of calling for help and my support network. As he wasn’t on bail I was permanently convinced he was going to come after me and he was going to get me. Even though he’s an old man and I’m a grown-up now, I was terrified. Every time I went out I was constantly scanning and looking for him and because I didn’t have my phone I felt so vulnerable as I couldn’t call for help if I saw him.”

Barbara says about 30,000 pages of evidence were extracted from her phone and some of the information was passed to the defence and used to try to discredit her in court.

“The defence accused me of attention-seeking, doing it for money and of having false memories. Those were the three main tactics the defence used. They used my messages and messages my friends had sent me against me in court. Again, at a time when you’re feeling really vulnerable and low, to have his defence barrister use your words against you is just horrific.”

The case took almost four years to come to trial. Her abuser, Michael Murphy, was convicted of sexual abuse including rape over a 30-year period and described by the judge as a “serial predatory paedophile”. He was sentenced to 16 years earlier this year.

However, Barbara feels that using evidence from her phone to try to cast doubt on her character and memories is indicative of the limitations of the jury system.

“Juries don’t work. There needs to be a panel of experts because juries don’t work for this kind of trial. People don’t have enough understanding of what trauma is and that memories aren’t always clear. The upshot is that people who are guilty are walking around, making our society more dangerous.” Caelainn Barr