Nigel Booth, barrister at St John’s Buildings, said: “This procedure looks to be an example of the police’s responsibility to pursue all reasonable lines of enquiry. Dependent on the level of contact before or after the incident, it will sometimes be reasonable for the phones of the complainant and the accused to be examined – which could yield evidence in favour of the defence or the prosecution or both.
“A key issue at play is the suggested wording of the consent form, which appears to compress to the absolute minimum the requirement to obtain informed consent from the complainant. There has been some criticism that the form gives the impression a case will be dropped if consent is withheld. Whilst there may be rare cases where this could happen, dropping a case would be the final step, and it is to be hoped that the complainant would be consulted throughout. But rather than working just from a form, it is crucial that officers are provided with the necessary training to involve the complainant in an informed conversation about disclosure.
“Those who prosecute serious cases like these take the review of material such as this extremely seriously. Complainants need to have confidence that their right to privacy is being upheld. The criminal justice system recognises this and tries to achieve a fair balance. For example, initially only the police and prosecutors will see the material. Prosecutors do not simply disclose all mobile phone data to the defence; this would be a gross invasion of privacy. Only those parts of the material, if there are any, that undermine the prosecution case or assist the defence case will be disclosed and, even then, there are strict laws that often prevent that material being used by the defence in a court case