Dr Nick McKerrell

Dr Nick McKerrell, lecturer in law at Glasgow Caledonian University, told Scottish Legal News that he was surprised that English police authorities are “aggressively pursuing access to victims’ mobile phones given recent experience in Scotland”.

The Centre for Women’s Justice (CWJ) and Big Brother Watch (BBW) are working on a legal challenge following reports that complainants in England and Wales are being asked to hand over their phones so police can comb emails, messages and photographs for evidence.

Victim support organisations have said the measures could discourage victims of rape and sexual assault from coming forward, and civil liberties groups have raised concerns over privacy.

Dr McKerrell compared the situation to Police Scotland’s “cyber kiosks” – laptop-sized machines which allow police to harvest mobile phone data in the course of criminal investigations. The roll-out of the cyber kiosks was recently halted due to concerns about their legal basis and oversight.

In a report published earlier this month, Holyrood’s justice sub-committee on policing said it was “concerned to learn that Police Scotland undertook trials of using cyber kiosks to search the mobile phones of suspects, witnesses and victims of crimes in Edinburgh (E Division) and Stirling (J Division) without undertaking the required governance, scrutiny and impact assessments”.

The sub-committee called into question the use of the technology by front-line officers “without any human rights, equality or community impact assessments, data protection or security assessments, and in the absence of any public information campaign”.

Dr McKerrell said: “This was because there is potentially huge amounts of information in every smartphone – particularly where they link to the phone-owner’s personal access to the cloud. Untrammelled access to such information raises both significant human rights and data protection issues.

“In general criminal investigation a court would be very reluctant to issue a warrant which allowed the police to access such a broad swathe of information. People who voluntarily give their device to the police would need a full explanation of the legal position and arguably even access to legal advice before agreeing to it.”

He continued: “Clearly the prosecution of rape and sexual offences needs to be improved across the whole of the United Kingdom but it is doubtful this can be done by putting victims on the spot and getting them to hand over electronic devices.

“Even with the existence of forms that show consent has been given for the police to access the phone, this only scratches the surface of the extent of information that the police can garner from a smartphone. Also, victims will be in a very vulnerable place when they are confronted with such requests by the criminal authorities.

“The entire legal basis for these police requests needs to be properly explored.”