In recent years, few areas of criminal law have attracted as much scrutiny or as much need for balance as investigations into sexual allegations where the complainant and the suspect are known to one another. These are often highly sensitive cases, with profound consequences for both parties.
There are often two legitimate aims: protecting complainants from intrusive or disproportionate demands, and ensuring suspects are afforded a fair investigation. Achieving both is essential for justice.
Under the Criminal Procedure and Investigations Act 1996 (CPIA), police officers are under a statutory duty to pursue all reasonable lines of enquiry whether they point towards or away from the suspect.
This duty lies at the heart of fairness in criminal investigations and proceedings. Yet, in practice, it can become difficult to navigate, particularly in “one person’s word against the other” cases where digital communications are often central. Messages, social media posts and location data can reveal context and nuance but obtaining that material raises delicate issues about privacy, consent and proportionality.
The request for mobile phones belonging to complainants has often been a flashpoint. Many victims’ advocates criticised the practice of demanding full downloads of a complainant’s phone – a process sometimes described by some as an invasion of privacy and against their personal rights. It is important to note that in a police investigation there is no statutory power to seize a complainant’s phone and download its contents, even if there is potentially a good reason or a line of enquiry suggests that is the correct approach.
Recent reforms have tried to address this. The Police, Crime, Sentencing and Courts Act 2022 introduced new powers allowing officers to extract data only with the agreement of the device owner (for complainants and witnesses). The aim being to protect privacy and prevent unnecessary intrusion.
But from the defence perspective, the question remains: how can investigators discharge their duty to explore all reasonable lines of enquiry if key digital evidence is inaccessible?
It is not about disbelieving complainants, it is about ensuring that evidence, wherever it lies, is seen and assessed fairly. Digital messages may show prior contact, inconsistencies or even absolving material. Fairness demands that such evidence is not overlooked.
Fairness within the justice system is not a one-way concept. It must extend to both complainants and suspects.
Complainants must be treated with dignity and respect, but suspects – often ordinary people suddenly facing serious allegations are entitled to a fair and thorough investigation. That means the police and prosecutors must be equally open to evidence that challenges an allegation as they are to evidence that supports it.
A fair system is one where the truth, not a presumption in favour of one party, determines the outcome.
However, the implementation of digital evidence policies must continue to be scrutinised. Lawyers, police and policymakers should work together to ensure that the rights of both complainant and suspect are respected and that no side of the scales is unduly weighted.
Whether it is the decision to seize a phone, review messages or determine disclosure, every step should be guided by the same principle: the pursuit of truth through a fair and balanced process.
If you would like to speak with B P Collins’ criminal team, please email enquiries@bpcollins.co.uk or call 01753 889995.
