Police and Prosecutors to Replace Consent Form for Digital Evidence

UPDATE: A new interim Digital Processing Notice will be introduced imminently. This new notice will reflect the Court of Appeal ruling in the case of Bater-James and Mohammed. We will work with the ICO and other stakeholders on a permanent notice and associated practice that will address the ICO’s recommendations in full.

In February 2019, the new Digital Processing Notice and supporting information was launched across forces in England and Wales. This form was intended to help police and prosecutors balance the needs to follow all reasonable lines of enquiry, respect the privacy of victims and witnesses and meet disclosure obligations.

Police will replace the forms with an interim version from Thursday 13 August 2020 in response to the ICO report into mobile phone extraction, published on Thursday 18 June, which found that the forms were not sufficient for their intended purpose, and the Court of Appeal judgment (Bater-James and Mohammed [2020] EWCA Crim 790).

The interim forms will implement the principles set out in the Bater-James judgement, pending a permanent replacement being produced following engagement with stakeholders and the Information Commissioner.

The College of Policing will also produce guidance on investigative practice when mobile phone investigation is needed. It will take some time fully to consult with practitioners and stakeholders to produce that guidance.

 National Police Chiefs’ Council lead for Disclosure, Assistant Chief Constable Tim De Meyer, said:

“Police and prosecutors have a duty to pursue all reasonable lines of enquiry in every investigation, and to disclose any material that undermines the case for the prosecution or assists the case for the accused. This is a fundamental principle of our criminal justice system, which ensures that trials are fair.

“It is important that this process is consistent for investigators across the country. No victim should feel discouraged from reporting a crime to the police. Searches of digital devices should not be automatic and will happen only when the investigating officer or prosecutor considers there to be a need to access information to pursue a reasonable line of enquiry. We will still explain this process fully to victims and witnesses.”

A letter sent by Assistant Chief Constable Tim De Meyer to police forces about the issue can be downloaded here.