Below follows a blog post I wrote on the train back from a trial in Plymouth, highly stressed, badly fed and sleep deprived. It may be a little jumbled but I wanted to get it out before the moment passes, and I don't have the time or energy to polish it, so please be forgiving...
I expect many people who have been victims of rape or sexual violence will have been worried by headlines in the press about being required to hand over their phones in order to ensure their case is actually prosecuted. The coverage in the mainstream media and comments from some politicians haven’t been especially helpful, and many legal commentators (many of whom are specialist criminal lawyers and therefore far better informed than I am) have patiently explained that this will all be done on a case by case basis, does not mean that everything on the phone is up for grabs to the defendant or general public scrutiny and is for the greater good (i.e. securing convictions when they are justified, ensuring the innocent are not the subject of a miscarriage and avoiding hopeless or wrong prosecutions).
What can I add as a family lawyer? Well, I’m not going to tread on anyone’s toes here by talking about criminal law where I'm not at all knowledgeable, but I can add a couple of things to the general debate about this :
The first is general observation as someone who often represents those same people who are involved in criminal proceedings when they appear in the family court – in proceedings concerning their child. Sometimes this child will be the product of the alleged rape. Sometimes they will be the product of a relationship which has at one time involved consensual sex, but later is said to have involved rape within the relationship. It’s rare for the parties to a ‘stranger rape’ or ‘date rape’ type case to be involved in proceedings about a child, but a parent who has been groomed as a vulnerable teenager may well end up in proceedings concerning a child who has been conceived as part of that abusive relationship.
I’ve represented a number of clients who have relied upon diaries, photographs, exchanges of texts or imessages or whatsapp messages to prove the abusive behaviour of an ex partner. I’ve represented a number of clients who have relied upon similar material to prove that such allegations are in this instance untrue. This type of material is valuable, sometimes determinative. In family cases (for reasons I explain below) the material often comes in the form of screenshots rather than digital download, and as such would often not pass muster for admission into criminal proceedings – but the principle is the same (there are obvious forensic risks with relying on screenshots or selected highlights of a longer thread but that is for another post). These records sometimes have the power to show you are telling the truth and sometimes have the power to show you are telling a lie. More often they are vaguely supportive of one person’s version of events, or have potential to be recruited to either account – but sometimes they mean game over for one of the people involved. Caught in a lie.
It isn’t always comfortable to be asked to disclose a device which contains not just your intentional or incidental record about a traumatic event, but also other private material about your life generally. It isn’t quite right to compare a phone to a diary of yore – one chooses what to put into even a private diary. A digital device gathers and stores ‘live’ conversations that in times past would have been spoken rather than typed and which would have been lost to all but the participants’ memories, and a digital device will invariably hold information that its owner may not appreciate is there, or may not appreciate is retained or still recoverable even after deletion. A digital device is a jigsaw receptacle of many aspects of our daily movements and actions (considered and otherwise), and that data it holds is both intensely private and profoundly powerful.
The second point is this. When you hand over your phone (or if you are a suspect / defendant when your phone is seized) the Family Court can, and increasingly does, order disclosure of that material into the family proceedings to help it determine the facts.
I should say that whilst allegations of domestic abuse in the general sense are a feature in a majority of cases that come through the Family Court, it is a far lower proportion that involve allegations specifically of rape (partly because parents of a child have usually been in a consensual sexual relationship at some point and even where there has been rape they may not even recognise that unwanted sex as rape) - and very many of the cases that raise domestic or sexual abuse matters will not have been the subject of any police report or investigation, let alone a charge or conviction (for all sorts of reasons). But here I'm talking about those cases where the police have been involved and where as a result they hold some information that might help build up a picture of events between two parents - but there hasn't been a conviction.
The uninitiated may ask why it is necessary to hold a trial in the family court where there is a going to be a criminal trial. The answer is twofold : there may be an investigation but no charge and therefore no criminal trial, or there may be a prosecution leading to an acquittal – in either scenario if its relevant the Family Court may try the facts in order to form a platform for making decisions about a connected child. More often though (and what an indictment of the criminal system this is) the criminal process is too sluggish for the Family Court to wait, meaning the Family Court has to crack on with its own trial rather than allow delay to prejudice the welfare of a child. In truth there seems to be a silent policy on the part fo the police / CPS to wait and see what the Family Court turns up before making a charging decision. The upshot is that often there are two trials where really it would be fairer and more efficient to hold just one - where the criminal court convicts the family court will just adopt that conviction as fact and need not re-run the whole thing. Where a trial in the Family Court is necessary, it will be conducted on the balance of probabilities (rather than beyond reasonable doubt), and the rules of evidence and what can be admitted and relied upon are far more flexible (some would say lax) than in the criminal court. Thus it is possible to be found to have done something in the family court even if the criminal court acquitted you (i.e. its more likely than not you did it even if it isn't beyond reasonable doubt).
Into these fact finding hearings then, is dumped the data download from a phone. In my experience we see this sort of disclosure into family proceedings being ordered more often in cases of suspected non accidental injury of a child where the police have seized devices from suspects suspected of collusion to conceal an assault (in a typical domestic abuse case the order usually won't specify devices or downloads and the police won't give that up without a specific order). But the police do (sometimes) seize the devices of suspects in cases of physical or sexual abuse or rape or obtain the data from the devices of complainants - and they also might seize devices in harassment, stalking, revenge porn or malicious comms type cases.
I doubt that many victims of abuse who have a child (or are expecting a child) with their abuser would appreciate that their phone data might not only be used for the purpose of a criminal prosecution but might also be used in family proceedings. I doubt also that many suspects would appreciate the issue (not that they have a choice).
Family lawyers will tell you that because of the lower standard of proof (more likely than not), these records can be hugely helpful (or unhelpful depending on your perspective). Once disclosed they may not only be helpful in respect of the subject matter of a specific police investigation – they may provide all sorts of unexpected (or entirely unsurprising) information about drug use or dealing, verbal abuse, links with risky adults, harassment of an ex partner who is the other parent of a child, or the whereabouts of an adult at any given time. They may show that an account given to the family court is very obviously untrue (for example if cell site data shows a person wasn’t where they say they were). They may show a person is still in touch with that schedule one offender. They may show that a person is back on the booze or the crack or that a bruise was not present on a child on the day a particular timestamped photo was taken. They may show contact obstruction or unwarranted hostility in communications between parents or that somebody did really know about that court order that they broke.
The Family Court itself has no obvious realistic mechanism at its disposal to seize, download and analyse the contents of a digital device such as a smartphone in the absence of a criminal investigation in the course of which the police decide to (and are able to) secure a device for download. The Family Court’s powers are simply powers of disclosure of material already obtained by the police. This does mean that in many cases where a data download of a phone would be obviously very useful none is available because the police have not seized a device, or because the device is in a queue for download and analysis and no data is able to be produced (and I have to say on a number of occasions in my experience because the police object or drag heels). From the perspective of those trying to ensure justice without delay for adults and children in the family court this arbitrariness is a source of some frustration. There is no easy solution to it – although the High Court has a power to order seizure of a device or records, there would inevitably all sorts of logistical problems with securing orders before data was destroyed or ‘lost’, identifying the person responsible for seizure of the device and persuading the legal aid agency to fund the download and analysis of the data. Realistically this is unachievable - if the police haven't already done the legwork it ain't gonna happen. And in most private law cases the legal aid rates are already unsustainably low (they are far lower than care cases), making the idea of an advocate trawling through tens of thousands of pages on the off chance for no fee very unappealing - and arguably even more unattractive for a privately paying client. Even in care cases there is no fee for this work, but the hearing fees are less awful than in private law cases.
I don’t argue that this information should not be available for family courts to use – undoubtedly in many cases it enables the family court to make better more reliable decisions for vulnerable children, by exposing the lies that adults often tell with objective evidence that has a date, time and location marker that cannot be quibbled with – and by filling the gaps in a timeline where memory may fail. But I do wonder if steps should be taken to ensure a higher general awareness of the prospect of information sharing with a court that has the power not to send people to prison, but to remove their children forever. It’s not quite as simple as saying that if you are telling the truth you have nothing to hide, or that the material won’t be used if irrelevant to the investigation at hand. Although there is a process through which the police or any individual concerned could object to the disclosure of a data download that contains material of interest to the Family Court but which is wider than the purpose for which it was originally harvested, there Family Court does make orders for disclosure of the entire contents of a device, which is not only burdensome on the advocate who is professionally obliged to read the material (without any extra recompense) but which can be devastating for their client – and that data might well have been quite irrelevant to the original police investigation, but very relevant to a subsequent, broader child protection enquiry.