The London Rape Review - 2021 Update

In June 2019, the Mayor’s Office for Policing and Crime and I published the London Rape Review. It provided the clearest snapshot to date of rape in London and offered vital insight into the issues facing those who report rape.

While conducting this research, I spoke to victims/survivors who felt significantly impacted by the requests for their mobile phone and for searches of their personal digital data. They felt that the requests were intrusive, unnecessary and suggested that their behaviour and credibility were being scrutinised. This in turn had an impact on some victims’/survivors’ willingness to remain in the justice process at all as it exacerbated their trauma.

I also heard from Independent Sexual Violence Advocates (ISVAs) - who offer critical support and advocacy to rape victims/survivors - that requests for phones were increasingly common. Requests for phones and digital material should only ever be on the basis of a reasonable line of enquiry, but ISVAs and victims/survivors I spoke to suggested that these requests were the default. A victim/survivor I met recounted to me that they were told by a police officer “We took your phone to discredit you, that’s what we do, the system is set up against the victim”.

“I didn't agree with them taking my phone. I understood why and they explained it would impact my case if I didn't but one of my devices I didn't even have at the time of the rape. It was explained as a blanket policy so I gave in. It was frustrating not having a phone and having to give up irrelevant private information.” – rape victim/survivor

As such, I recommended that MOPAC conduct further in-depth research into requests for victims’/survivors’ phones to explore the frequency and the impact requests for seizure and disclosure have on the victims/survivors, the investigations, the case progression and the outcome of the case. You can read this research in PDF on our website. This document lays out my reflections on the research and recommendations to improve the process and victim/survivor confidence to engage in the justice process. To supplement the research findings, I convened a roundtable with ~30 London ISVAs to discuss how the findings chimed with their experiences. Observations and insights from this roundtable are woven throughout my reflections, as are quotes from the victim/survivor survey we conducted which heard from 57 rape victims/survivors.

While the research states that the picture of rape outcomes remains largely unchanged from the 2019 review, I am concerned to see the number of cases where the victim/survivor has withdrawn from the process increase to 65% from 58%. This number is unacceptably high and reiterates the findings from the 2019 review that more work is needed to understand why they are withdrawing – whether it was truly their choice or whether they felt pushed out - and to ensure the system is designed to help victims/survivors remain in the justice system, including offering proper support.

Our understanding of the drivers of withdrawal is crucial to tackling the unacceptably low levels of rape prosecutions. Improving the confidence and safety a victim feels in the criminal justice system is not only potentially important for their individual, personal recovery, but has implications for wider public safety. We know that rape and sexual offences are often crimes that are repeated by perpetrators, making it crucial that the criminal justice system can identify perpetrators and intervene to prevent them causing further harm.

Where this research has expanded our understanding of victim/survivor withdrawal is when in the process victims/survivors are leaving the process. Of those who withdraw, 38% do so in the first seven days and almost two-thirds (64%) withdraw within 30 days. This is a significant increase from the 2019 London Rape Review, where only 18% of those who withdrew had done so in the first 30 days. This suggests that the interactions victims/survivors have immediately after reporting and at the outset of an investigation can have huge ramifications for their decisions around supporting the investigation and prosecution. There is an emerging narrative from justice agencies that a significant number of victims/survivors withdraw early because they simply wanted to report to ‘get it off their chest’, but never intended to pursue justice. While it may be the case for some victims/survivors, this explanation differs from what victims/survivors and those supporting them tell us, and potentially obscures and minimises the experiences of victims/survivors who wanted to pursue justice but felt dissuaded and pressured to leave the process. It is therefore important for us to consider whom victims/survivors interact with in these very early stages and how these interactions may have shaped their decision to withdraw or contributed to a sense that they have been forced out.

“Reporting to the police was the biggest mistake I have ever made. They didn't believe me, they belittled me, questioned my lifestyle and minimised my experiences. I felt worse for months compared to before my experience of reporting, and then to so quickly be told that my case had no merit and wasn't prosecutable was the most invalidating experience of my life.” – rape victim/survivor

It is also very important to note that, in London, ISVAs often will not have started working with a victim/survivor in this crucial first 30-day period. ISVAs told me that, due to waiting lists and resource challenges, they do not start working with victims/survivors as early as they would like. The role of the ISVA is fundamental in helping a victim/survivor understand what the criminal justice process will entail and supporting them to make informed decisions. These findings about early victim/survivor withdrawal underscore the need for victims/survivors to be offered an ISVA as early as possible and for ISVA services to be fully resourced, to enable victims/survivors to access that support immediately. The recently published Government Rape Review recognised the invaluable work that ISVAs do and recommended that all victims/survivors who would like an ISVA should have access to one. I am fully supportive of this call and expect to see the government make resources available to ensure that waiting lists are cleared and there is sufficient capacity for ISVAs to start working with victims/survivors as early as possible.

These early withdrawal numbers should prompt us to consider how police are handling victim/survivor interactions, as the victim/survivor may have only really dealt with police officers during this time. There is some implication from the numbers, from victim/survivor responses to the survey and from ISVA testimony that police officers may be inadvertently influencing victim/survivor confidence and decisions to withdraw. For example, ISVAs note that police officers can often emphasise just how long, complex and challenging the justice process may be. These messages can be given as early as initial conversations before formally reporting and may be repeated during the early interactions with police. They are therefore being delivered at a time when a victim/survivor is most vulnerable, likely suffering from trauma and shock and when they most need reassurance and support. Although such warnings likely come from a place of care and a sense of responsibility, it is important that police officers consider the impact on victims’/survivors’ confidence and on achieving justice outcomes.

“I felt disbelieved after I would not submit my phone. I was told it would go against me in the CPS process, I was so depressed about the assault I could not take any more.” – rape victim/survivor

ISVAs also spoke of more overtly negative interactions with police officers, which significantly impacted victim/survivor trust and confidence. These interactions included questions about victim/survivor behaviour which suggested victim blaming, intrusive questioning about sexual behaviour and dismissive and disbelieving attitudes. These areas of questioning are clearly founded on the rape myths and stereotypes which suggest that a victim’s/survivor’s behaviour somehow prompted or encouraged the attack. Police should be steadfast in ensuring these harmful myths do not play any part in their investigations as this will actively contribute to victims/survivors being forced out of the justice process.

“They victim-blamed me, saying I had not made it clear to the suspect that I was not consenting. This is after he got me drunk and attempted to rape me in my sleep, a few days after I was out of hospital from chemotherapy for leukaemia. The OIC told me he had only done it due to the unique circumstances of my illness therefore he is no risk to anyone else. She closed the case without interviewing him.” – rape victim/survivor

Where such interactions do not prompt immediate victim/survivor withdrawal, they can pose an issue when victims/survivors are asked for their phones. ISVA testimony suggested that victims/survivors sometimes progress in the process despite these negative interactions and they have a knock-on effect and influence whether victims/survivors are willing to hand over their phones. If victims/survivors feel like they are being blamed or disbelieved, they are unlikely to trust that their mobile phone data will be searched objectively and appropriately.

“[The police] said I had to accept new sexual boundaries with 50 Shades of Grey and that because he stopped there was no issue. They said I would ruin his life by taking it further and when they asked if he'd done other things and I was distressed so didn't answer immediately, they said that'll be a no then and recorded their own answer.” – rape victim/survivor

The research finding that “in one in five cases that ended in victim withdrawal, no specific withdrawal reason could be established” is also significant. Although victim/survivor reasons for not engaging will be varied and complex, I have spoken to victims/survivors who have told me they found the process to be complicated and overwhelming. Such high numbers of disengagement after reporting further reiterates the need to ensure that victims/survivors are fully supported and fully understand their rights and entitlements. This is particularly important where victims/survivors have additional needs and feel unable to cope with the demands of the bureaucratic process.

However, evidence from ISVAs suggest that we should not interpret these figures as purely an issue of victim/survivor understanding and willingness to participate in the justice process. From their experience, ISVAs told me that there can sometimes be a disparity between police perception and victim/survivor perception of what has been discussed, agreed and how the case is progressing. An example was provided of a victim/survivor who was unable to schedule her Video Recorded Interview due to childcare and employment schedules. From her perspective she was very keen to still complete the interview and was waiting to hear from the police to rearrange it. When the ISVA started working with her and contacted police for an update, the police said the case had been closed as No Further Action because the victim had withdrawn.

Such a miscommunication or difference in perception of events is deeply worrying. It is possible that the 1 in 5 victims/survivors not engaging with the process include cases like those outlined above, where police have incorrectly interpreted a victim’s/survivor’s actions as them not engaging.

“The SOIT that I was assigned left her job during the investigation and I wasn’t informed until several months after she left. She has not been replaced since, so I have been in touch with the detective directly. Then he left, so he introduced me to the other person taking over the case. This new officer fails to keep me updated about the case in the 28 days most months. For the last couple months I have rang him, left him voicemails and text messages but I cannot get through to him. My phone is still waiting to be downloaded, after 14 months in the lab. My rapist is on holidays diving in the Philippines.” – rape victim/survivor

This is supported by evidence from the recent joint inspection of rape cases by Her Majesty's Inspectorate of Constabulary and Fire & Rescue Services and Her Majesty's Crown Prosecution Service Inspectorate. The final report highlighted challenges around cases marked ‘Outcome 16: Evidential difficulties: suspect identified; victim does not support further action’, which practically speaking refers to cases where victims have withdrawn. The report noted that this outcome code “potentially masks a multitude of factors, and what was seldom explored was whether, with better support, these victims might have continued with the prosecution”Reference:1. For example, it is not indicated when in the process a victim/survivor withdrew and whether they had concerns from the outset or whether these concerns grew with the investigative process. As the report states, this information could be crucial for managing victim/survivor concerns and ultimately keeping more people engaged. Again, it is particularly important that we remain mindful of victims/survivors with additional needs who may find navigating the system more challenging and are in need of more intensive support.

The findings of this research challenge the notion that police make ‘blanket’ requests for mobile phones, as police recorded requests being made in only 23% of cases. The findings also do not support the theory that there was a noticeable shift in police behaviour after the Liam Allan case, although ISVAs shared that the case is still quoted by police officers – as recently as this year – as being the reason they have to request victims’/survivors’ mobile phone data.

These findings do stand in contrast to the perspective of ISVAs who say that phones are requested from almost every single victim/survivor they work with. Despite police needing to follow reasonable lines of enquiry to request a phone, ISVAs provided recent examples where phones had been requested even though they couldn’t possibly hold relevant evidence. For instance, a stalking victim/survivor who regularly changes her phone for safety reasons, who reported a non-recent rape, meaning any evidence would have been lost numerous phone changes ago.

“My case is a historic case of child sexual abuse over 33 years ago. It made no sense to me as to why my phone was needed. I have had no contact with the accused. I think it was an overreach and intrusive.” – rape victim/survivor

The finding that only 50% of victims/survivors provided consent when their phones had been requested is perhaps unsurprising, given what we know about victim/survivor confidence and the perception of intrusion into their personal lives. However, the data also suggests that these formal phone requests nearly always follow references in other evidence to the existence of digital material, meaning victims/survivors were likely more cognisant of the fact their phone might be examined.

Anecdotal evidence from victims/survivors suggests that some police officers are informing them very early on in the process of the likelihood of their phone being requested, before victims/survivors have given evidence and before reasonable lines of enquiry could practically have been assessed. While the police officers may have intended to simply provide an overview of the potential progression of a rape investigation, the result can be that victim/survivor confidence is damaged as it is interpreted as a blanket request or has pre-empted their evidence. As such, we need to further interrogate how and when the requests are being made, how well the process is being explained to victims/survivors and how well equipped they feel to make such decisions.

“I was informed on a top line level that they wanted 7 years of data from my phone and that it may help the case but not any actual reason why. I had told the police that the perpetrator and myself had no contact and did not have each other’s details but was still asked to hand my phone over. If the time frame matched the assault I could understand but there is simply no explanation for me to lay 7 years of my life bare as well as my family and friends.” – rape victim/survivor

One element of the process that needs more oversight is the consent form, which is signed by the victim/survivor and lays out the basis for the search and the parameters of the content that will be examined. ISVAs provided recent examples where police had sent victims/survivors blank consent forms to sign, telling them they would be filled in later. They also reported that the section covering “what other means have you attempted to get information” was often left blank or filled out very vaguely.

This consent process was recently the subject of an investigation by the Information Commissioner’s Office. This investigation found that ‘police data extraction practices vary across the country, with excessive amounts of personal data often being extracted, stored, and made available to others, without an appropriate basis in existing data protection laws’ and prompted a review of the consent forms which are given to victims/survivorsReference:2. Police have subsequently consulted on a new form which is now in circulation. Evidence from this research, along with insight from ISVAs, highlights how crucial it is that proper processes are embedded and that police are demonstrating that they have thoroughly considered alternatives to taking a victim’s/survivor’s phone.

“Privacy and dignity have taken a back seat in favour of collecting as much information as possible, whether relevant or irrelevant to the case. The pressure to reveal every detail of your private life for examination and evaluation is immense and results in an impossibility of truly informed consent.”- rape victim/survivor

Once again, this evidence underscores the importance of victims/survivors having access to ISVAs who can ensure that victims/survivors fully understand the options and implications of giving consent to have their phone searched. ISVAs can also provide some challenge to the scope and remit of the information being requested and ensure that police have considered other options first such as social media. This is particularly important in light of the findings of the 2019 HMIC investigation which found that 4 in 10 requests for victims’/survivors’ personal data ‘were disproportionate’Reference:3. ISVAs told me that they would like to challenge more decisions, but they must be led by the victim/survivor who is often too scared to do anything which they feel would jeopardise the case progressing.

“I was told that my refusal had sparked the interest of the defence and that if I didn't give it up willingly they could say in court that it probably had damning evidence on it. Then months later that if I persisted in this the CPS would drop the case. They asked me over and over and over. Called me every fortnight or so to demand it again. For a crime of consent I felt it was particularly hurtful the way they didn’t respect my "no".” - rape victim/survivor

Victims/survivors themselves may not feel they have a sense of what is an appropriate or proportionate request. Disclosure and consent are tricky legal principles, particularly when they are bound up in the context of a criminal investigation. Victims/survivors should not be expected to have enough prior knowledge to be able to make informed decisions and so having expert support on hand is crucial. This could be achieved by giving victims/survivors access to free, independent legal advice to enable them to make informed decisions, as recommended by my 2019 London Rape Review. The success of the Sexual Violence Complainants’ advocates Scheme in Northumbria has well evidenced the benefits of such advocates. The government’s recent end-to-end Rape Review committed to a consultation on how to enhance access to legal advice for victims/survivors, so they can understand and challenge information requests. While this is a positive step, it is not an appropriate response to existing evidence about disproportionate requests and of victims/survivors not feeling equipped to make fully informed decision and this leading to high victim withdrawal rate. If Government wants to tackle the low prosecution rates they should be working towards the aspiration of no victim/survivor being left without expert legal support at such a critical stage of the investigation.

“I think those who complain about sexual assault need their own lawyers so they can decide what to do. Accusers have less rights than rapists and are viciously questioned without a lawyer present and need more support.” – rape victim/survivor

The ICO investigation concluded that consent was not the correct legal basis for such phone requests, as victims/survivors could not decline or withdraw consent without feeling there would be significant ramifications for the investigation. Indeed, evidence from ISVAs reiterated that many victims/survivors feel beholden to the police and that the investigation will not continue if they refuse to hand over their phone. In some cases, victims/survivors are explicitly told at the time of request that the investigation will not be able to move forward if they don’t provide the phone. When challenged on potentially disproportionate requests, police officers often state that they are just pre-empting what the CPS will ask for.

The ICO will soon be publishing the findings from a follow-up investigation which looked at requests for victim/survivor personal data from third parties – such as social services, health services, schools – commonly referred to as ‘third party materials’. Requests for third party materials featured in the 2019 London Rape Review, as they were contributing significantly to case progression delays. However, the issues identified in this research around victim/survivor consent and requests for mobile phone data can equally be applied to requests for third party materials.

The government has recently amended the Police, Crime, Sentencing and Courts Bill to improve protection of victims’/survivors’ privacy rights when digital data is being downloaded from their mobile devices. Unfortunately, the government has not extended the same important protections to requests for third party materials – requests which can be just as personal, exposing and oftentimes as disproportionate as requests for mobile phone data. The government should build on the positive step it is taking to protect victims/survivors when requests for phone data is made and extend this to apply to third party materials.

“The way my own information was interpreted and used against me was distressing. [My police notes] cited irrelevant information like my personal weed use and comments about a student loan as being undermining information. It's so irrelevant to whether a rape occurred or not. I was just being undermined as a person.” – rape victim/survivor

The findings of this research also point towards some evidence of police not being targeted enough in their requests, as 11 of the 25 phones that were handed over did not include any evidence relevant to the case. While this does not mean that police were wrong to search the phone, as the line of inquiry and reason for requesting the phone might be reasonable, it does signal there could be an issue with police requests. Again, this potentially mirrors the findings from the 2019 HMIC report.

There are some victims/survivors who are supportive in principle to hand over their phone, especially when it may have evidence to help their case, for example where they have confronted their perpetrator and the perpetrator has apologised. But even these victims/survivors can end up withdrawing or refusing to provide their phone when they run into the logistical barrier of handing over a phone for an unknown amount of time, without any meaningful replacement.

“It was all very wishy-washy. They said I could get back my phone in a matter of weeks, months or even in over a year.”– rape victim/survivor

Police are often unable to even give an estimate of how long a phone will be needed for. This research found an average of 89 days, but ISVAs shared experiences of phones being held for much longer – sometimes up to 2 years.

This is particularly concerning for sex workers whose livelihoods are dependent on their phones and the ability to contact their regular clients. Equally, many other victims/survivors will be dependent on their phone for support networks, safety and employment. Where police are unable to say how long they will need the phone for, sex workers are pushed into the impossible choice between trying to pursue justice or being able to work, buy food and pay the rent.

This is a key moment where victim/survivor confidence is lost, even for those who agree to hand over phones. The recently published Government Rape Review highlighted this as an issue and included an ambition that phones should be returned to victims within 24 hours; and where this can’t happen, replacement phones should be provided. This remedy would be a positive step for those victims/survivors who are most concerned about the logistical issues of not having a phone and not being able to contact their support networks. In London, the Metropolitan Police should endeavour to implement this recommendation as quickly as possible and Central Government funding should be made available in order to achieve this.

“My phone was taken from me for four months. I was then asked to collect it only for it to be requested again a month later.” - rape victim/survivor

However, it is also important that phone data is properly examined as soon as possible and that complacency doesn’t creep in because there is no longer a pressure to return a phone to a victim/survivor. ISVAs shared concerns that while downloads might happen quickly, the evidence itself is not looked at for months. I have seen cases which also support this view, including a victim/survivor who, after 12 months of no updates on her case, was asked by the police to hand her phone over again as the phone hadn’t downloaded properly the first time and they had only just realised.

Swift examination of data is also important in the context of data and evidence that could be time limited or destroyed by the perpetrator if they know they are under suspicion. This includes dating app data, where chat history is deleted if one person un-matches from the other. One ISVA shared a case where, despite highlighting the time sensitive nature of the evidence to them, police only realised they were unable to access such data 18 months after the victim/survivor’s phone had been taken.

Perhaps the most concerning finding from this research is that inconsistencies in victim/survivor accounts make it 12 times more likely that the police will close a case with No Further Action. This suggests that victim blaming and misunderstanding of the impact of trauma on memory and recall are still rife and are impacting on a victim/survivor’s ability to get justice.

The 2019 London Rape Review provided compelling evidence that the perception of victim/survivor credibility, which often hinged on inconsistencies in accounts, was driving both police and CPS decision making. That Review recommended training to be undertaken by the Metropolitan Police and CPS on the impact of trauma on the brain, particularly how trauma can lead to inconsistencies or gaps in memory.

These notions of victim/survivor credibility are inextricably linked to the courtroom, as they rest on police and prosecutor perceptions of what a strong case looks like, which in turn is an interpretation of what a jury will believe. The fact that inconsistencies in accounts are so frequently viewed as a credibility issue, rather than a natural response to trauma, signals that rape myths are still permeating the justice system. A foundational, overarching rape myth is that victims/survivors lie about rape – usually explained as a form of retribution, or a product of regret and shame around a consensual sexual encounter. Indeed, I have spoken to victims/survivors who have had police officers directly suggest that they probably did consent and now regretted it, hence their report of rape. If the underlying assumption of the system is that rape victims/survivors are likely lying, then we are not giving the victim/survivor a fair chance at justice and are setting them up to fail.

Since the publication of the London Rape Review, there have been some important steps forward on this issue, most notably new CPS sexual offences guidance which includes information on the impact of trauma on the brain, inconsistent accounts etc. This research looked at cases from before such guidance was introduced so cannot speak to the impact. It is crucial that such guidelines are actively embedded through regular training which is evaluated and refreshed depending on the assessment of its success.

For the Mayor's Office for Policing and Crime (MOPAC)

1. MOPAC should conduct further research to better understand victim/survivor withdrawal, particularly the early attrition of victims/survivors and what is driving this. This should be informed by the study of Case Outcome Codes 14, 15 and 16 being conducted by Operation BluestoneReference:4.

2. MOPAC should undertake a strategic review of ISVA services in London, including an assessment of waiting time for victims/survivors, and provide a plan for ensuring that all rape and sexual assault victims/survivors in London have timely access to an ISVA if they want one. Ideally, resources should be in place for ISVAs to start working with victims/survivors much earlier in the justice process.

For the Metropolitan Police

3. As part of the move towards offender-centric investigations, police should prioritise requests for suspects’ phones where they feel the device may hold evidence of perpetrator behaviour and offending pattern.

4. Victims/survivors should only have their phones taken where police have identified a clear line of inquiry and should be downloaded and returned within 24 hours. Where a phone absolutely has to be held for longer, a replacement phone should be provided within the first 24 hours.

For the Metropolitan Police and London Crown Prosecution Service (CPS)

5. Building on the new CPS guidance and existing resources, both London CPS and the Metropolitan Police must devise a clear plan for rolling out effective training to embed the understanding of the impact of trauma on the brain, with practical examples of how this may manifest in rape cases.

6. London CPS and the Metropolitan Police must roll out training on the principles set out in the R v Bater-James judgement – namely that all other avenues should be exhausted before searching a victim/survivor’s phone. This training should include clarity and agreement on the type of evidence that is a suitable alternative to phone seizure, including practical examples.

For national government (Home Office & Ministry of Justice)

7. Victims/survivors should be given access to free, independent legal advice to advise on matters of privacy and consent with relation to phone and personal data requests. This recommendation is being consulted on as part of the Government’s Rape Review, but we must see this measure rolled out fully and embedded swiftly, so victims/survivors have support to challenge any requests for information that they feel is not strictly necessary

8. Central Government funding should be made available to enable the Metropolitan Police to introduce replacement phones as soon as possible, as per Recommendation 4.

9. Following the outcomes of the MOPAC strategic ISVA review (recommendation 2), the Ministry of Justice should provide adequate and sustainable funding necessary to ensure that every victim/survivor of rape and sexual offences in London has access to an ISVA if they would like one – as committed to in the Government’s End-to-end Review.

10. The Government should amend the Policing, Crime, Sentencing and Courts Bill to safeguard a victim’s right to privacy when intrusive requests are made for third-party materials. These clauses should mirror the positive steps already taken by the government to protect victim/survivor privacy when it relates to requests for mobile phone data, as set out in a briefing from the Office of the National Victims’ Commissioner.