Should a Sexual Offence Complainant Have Their Phone Interrogated?
There is much debate currently around the issue of whether those alleging that they are victims of sexual offences should have their digital devices interrogated by the police.
The procedure has its vocal critics, but we stand firmly in the corner that this is, in many cases, a vital part of the police’s duty to examine all reasonable lines of enquiry.
The vast majority of sexual allegations involve no third-party witnesses. They are, in simple terms, usually a woman saying he did this and a man saying no I didn’t.
It’s easy to see, therefore, how important it is to examine both parties’ mobile phones as soon as possible – meaning, when the allegation is first made.
What could these devices show?
Well, they could show an awful lot in our opinion and experience.
They could show conflicting message threads, suggesting that one party has deleted certain messages. This may in some cases imply guilt of the person accused, but it may also show that the alleged victim has deleted or altered messages, as Kevin Spacey claims that his accuser has done in an ongoing case against him.
Spacey is accused of groping a man at a bar in 2016 and his legal team say that texts that would be beneficial for his case were deleted by the man before screenshots of conversations were sent to the police. The man refused to provide his phone to the police and has since used his fifth amendment right not to incriminate himself and refused to testify on this point.
Spacey’s lawyers have urged the judge to dismiss the case, and the judge acknowledged that prosecutors would struggle to take the case to trial.
While this case is taking place in the United States, and involves rules and procedures that are different to our own, the issue itself is a global one.
Removing the high-profile celebrity of the defendant, he is a man who denies an allegation against him and who claims that messages that would support his case have been tampered with by the accuser.
This scenario is faced by people across England and Wales regularly.
Of course the rights of an alleged victim must be protected. We would never suggest otherwise. But when our desire to protect those interests goes so far that it affects a person’s right to a fair trial, it has gone too far.
Text message history between the accuser and the accused, or between the accuser and friends, can be vital evidence. It will both undermine and assist the strength of the allegations made in many cases, as will call log history, cell site data and other vital pieces of evidence that are, too often, allowed to be lost.
The call for devices to be interrogated is also not an attack on alleged victims. It isn’t a move to suggest that every person who accuses someone of a sexual offence is lying.
It’s simply a way to interrogate an allegation thoroughly and uncover all evidence – and there is every chance the interrogation may find evidence that is helpful.
The log showing a phone call a young woman makes to her father at 01:34, matching the time she claims she escaped from a sexual assault incident, helps her case.
The Facebook message a young man sends to his best friend the morning after an alleged rape, saying something awful has happened and asking for company, helps his case.
But, equally, the message received by a married woman from her husband saying he wants a divorce, may help the defendant if the message was sent just hours before the police were contacted with an allegation that he had been sexually abusing the children.
Interrogating a device isn’t about demonising people who come forward with serious allegations.
It is about conducting an investigation fairly and pursuing all reasonable lines of enquiry, as police already have a duty to do.
If you or a loved one are under investigation for a criminal offence, it’s vital that you seek pro-active help from our specialist team as soon as possible. Call us now on 01623 397200.
