Digital Media- Requirement to have the Victim’s/Witnesses consent to use 

Digital Media- Requirement to have the Victim’s/Witnesses consent to use

I recently had a query raised in relation to digital media…… the CCE leads in a force are about to undertake some work around the national issue of the ‘Digital Notice’ relating to children and specifically around exploited children.

A current major investigation in the police force urgently raised this issue. They have a child, 14 years old who has been sexually exploited. They have recovered numerous media devices from the child over a period of time. They are seeking prosecutions regarding grooming offences against a number of suspects. The digital evidence is essential to this case, and they are considering an ‘evidence led prosecution’.

They have sought advice from CPS, and the national direction is where you have a child over 13yrs, you need to seek consent from the child to use the digital data recovered.

Query – If the child does not consent, can the data recovered still be used?

CPS advice suggests the force in question will not be able to. If that is the case, the force does plan to appeal the decision.

The force lead considers that it will have a significant impact on sexual exploitation investigations, and future CCE Investigations.

The above queries resulted in a large number of responses from the police network. A summary of the responses are outlined below;

· One police force lead stated;

A quick perspective, but not without its’ risks – I would seek to recover the devices with a section 8 PACE warrant, with a carefully worded policy decision from the SIO which would cover the aspects of safeguarding and disenfranchising the victim – ‘for the greater good’ argument….

I recognise the wider points around a national position and would propose that we link in to the NPCC debate which I think is being led by the College of Policing

· Another police lead stated;

It is my understanding that the data can be used from the digital devices. As long as the items were seized lawfully using correct power, the Police should not need the victims consent to use the information gathered.

I have spoken to Police Decision Maker in our Force who makes the decisions on cases that go to the CPS and they are of the same opinion.

The defence can make an application, once the case is at court, to have the evidence excluded but it is unlikely to be upheld.

· Another police lead gave the following response;

As outlined in the query, that would be my understanding…however, depending on the competence/ vulnerability of the child i.e. ‘of sound mind at the time’, could the parent provide consent (especially if they pay the contract/ bought the phone etc?)…it’s definitely an avenue I would explore further.

· Another response received from a force lead;

I would be interested to see the national direction CPS are quoting, as this could have been quoted, but has not been in a number of our police cases.

I would question how a 13 year old can pay for a phone! If it is not in her name surely the data can be seized under sec 19 of PACE – evidence of an offence?

· Another response received outlined;

Whilst we have not dealt with this specific issue yet, I am in the process of getting Children’s Social Care to agree to add the issue of the digital notice to the template for our CSE strategy discussions.

What I am trying to achieve is that in the case of a looked after child, the Local Authority will provide consent on the child’s behalf. If all agencies agree that the vulnerabilities that have rendered the child looked after and matters they have become a victim of, present a rationale as to why they cannot reasonably be expected to make a decision that is in their own best interests around digital consent.

If not looked after, then secure the same agreement (where appropriate) from the three agencies, recorded in the strategy meeting minutes, so completely disclosable and subsequently seek consent from a parent or carer or if absolutely necessary proceed without consent.

I have not run this by local CPS yet BUT I take a view that if within the context of a strategy meeting/discussion those agencies agree that a child cannot make a decision in their own best interests because of defined vulnerabilities (the fact they have been groomed and exploited by the accused being one!) it is a compelling and wholly defensible position to take. An arbitrary criterion, based purely on age, which does not consider the vulnerability of the child concerned is completely flawed and far from being child centred.

· Another response received stated;

In relation to seizing the phone, the issue is about what lawful power can you point to for the seizure of the phone to say that it has been legally seized as evidence.

In most cases, you will need consent from the owner. In some cases this may in fact be a parent so this could help with lawful seizure. Alternatively, I recall reading a case where a warrant was obtained to seize a phone, but this would be quite an extreme measure to take where the owner does not wish to hand it over. Where lawfully on premise, S19 PACE may be considered. However, even in the case of the latter consideration must be given to the risk of harm to the child by taking the phone, damage to the relationship with police and agencies and how this can increase risk.

· Another response received;

I have not had any such case yet but have been perusing the changes to the Investigatory Powers Act from where this comes.

I intend to speak with our legal services to establish if devices can be seized from a victim under section 19 of PACE, If they can as evidence…. I believe the devices can be examined without issue.

If they can’t… my understanding is that a one-way DSA would be required. This might be problematic if the victim is not cooperating.

· Another response received outlined;

I have been having similar conversations recently regarding phones, when we can and cannot seize them, whether we require consent etc.

The recent media coverage of phones from rape victims has not helped matters – especially as it was so poorly reported.

In amongst conversations through the MSHT world I have been told that apparently the Investigatory powers Commissioners office (IPCO) is publishing a report imminently around this matter.

Also, I did a bit of research on the NPCC website this morning and found this link which may be helpful:

DCC Jeremy Burton is the NPCC lead for disclosure according to this.

· Another response received stated;

Would the parent’s permission not suffice if they bought the devices for the child? Clearly if the exploiters bought the devices the parent’s consent would not necessarily apply.

The Jenny Pearce model of ‘socially abused consent’, covers coerced consent- i.e. the voice of the child is effectively that of the exploiter grooming the child not to consent to anything protective such as working with the police. Could this be presented to CPS for consideration?

· Another response received outlined the following;

We are often do not get consent from the child when they have been groomed and exploited. They generally do not see themselves as victims, are not engaged and are often obstructive at the beginning of contact with them. Furthermore, for CSE cases, we do not look at the phone just in the context of that particular investigation. We look at it to identify wider risks /potential other victims / other perpetrators etc which the form does not account for.

The route that we tend to go down currently is as follows:

· Gain consent from child. We can turn around the download of that phone either the same day or certainly within 24 hours. Knowing that the phone will be returned the same day, or at the latest the next day, often assists in gaining the consent from the child, as they know that they are not going to have lost the phone for weeks or even months.

· If child refuses to consent, identify who ‘owns the phone i.e. pays the bills and seek consent from them to seize the phone. Quite often parents/carers assist us with ‘removing’ the phone when the child is asleep.

· Consider other powers to seize the phone – i.e. s.19 PACE if we suspect that there is evidence of an offence on the phone and we are lawfully on a premises.

· Another response received;

CPS in my force area will more often than not, push for seizure of victim’s devices in respect of disclosure.

The recovery of the phones must have been lawful in the first instance and therefore usage of any forensic download will too have to be justified, proportionate and necessary etc which then covers collateral intrusion matters. The consent issues also contradict the ‘consent’ under Modern Slavery 2015 legislation, which states that a person under the age of 18 cannot consent to their own exploitation.

· Another response received outlined;

I have not had this as an issue yet but was expecting this following the recent introduction of the consent forms.

I agree that this is going to cause problems where the victims are not necessarily co-operating. As we know, part of the barrier to a CE investigation is that the child victims do not always identify themselves as victims and will therefore not co-operate. If we are going to be prevented from using digital evidence without specific ‘consent’ then this is going to compromise the effectiveness of our investigations in this area.

· The final response received stated;

We have not come across this. We have had a few ‘evidence led’ prosecutions and where a mobile phone was part of the evidence we got the parent’s permission to download, based on them paying for the contract and having PR over the child. This issue re consent of the child was not raised by our local CPS

If it was raised, the argument I would use is that whilst a child may have Fraser (Gillick) competency to make decisions in normal life they cannot make decisions around a mobile phone, when it contains evidence of them being subjected to CSE/A or CCE. The grooming process means that a ‘decision’ by them not to allow us to download the phone is very unlikely to be there freewill decision and more likely the decision or influence of the abuser. By balancing the child’s rights against the responsibility to keep them and other children safe I would argue that providing the parent givers permission the download can be used and I would be surprised if a court took a different view.

Probably needs to be tested in court but it’s the argument I would use with CPS.

Hope this Blog is of interest to you!

Kay Wallace

NWG Police and Justice Lead.