16 July 2019 | Comment | Article by Alan Collins

HJ Talks About Abuse: Consent, sexual offences and social media

“Give us your phone or we’ll drop your case” is just one of the arguably sensationalist headlines that appeared in the media in the last couple of days  in response to the news how police and prosecutors use information from the mobile phones of people who report rape or other sexual offences. This rightly or wrongly has caused some consternation and confusion.

By way of background, there have been two high profile rape cases which provide some context.

There is the case of Liam Allan who faced being convicted of rape. Disclosure of text messages from his accuser suggested that the sexual offences she complained off were arguably consensual. The content of the messages painted a very different picture apparently to the one that she had given as part of the prosecution.

There is the case of Alex Hepburn the ex-Worcestershire cricketer who has been convicted of rape. He had set-up a sexual contest “game” on WhatsApp which undoubtedly was of interest to the jury trying his case when considering his claim that his victim had consented to the sexual offence that he had subjected her to.

The relevance of these two cases is two-fold:

  1. Consent
  2. Social media and electronic information used as evidence

Looking at consent this is defined by section 74 Sexual Offences Act 2003.

Someone consents to vaginal, anal or oral penetration only if s/he agrees by choice to that penetration and has the freedom and capacity to make that choice.

Consent to sexual activity may be given to one sort of sexual activity but not another, e.g.to vaginal but not anal sex or penetration with conditions, such as wearing a condom. Consent can be withdrawn at any time during sexual activity and each time activity occurs.

In investigating the suspect, it must be established what steps, if any, the suspect took to obtain the complainant’s consent and the prosecution must prove that the suspect did not have a reasonable belief that the complainant was consenting.

The realities of modern life mean that many of us communicate, and some more than others, by means of text and other forms of communication. Inevitably such communications potentially become evidence viz evidence of guilt or innocence.

The rape cases of Allan and Hepburn are good examples of where electronic communications in its widest sense have formed evidence that points to innocence or guilt.

Concerns about access to private communications are understandable. It is readily understood why victims may find it intrusive and a further invasion of their privacy. It follows though that the contents of mobile phones, for example, may help convict abusers. Conversely, they may assist justice in disproving an allegation.

The Crown Prosecution Service has advised that mobile phone data, or social media activity, will only be considered by the police when relevant to an individual case.  

The CPS has made it clear that for an investigation to proceed and be fair for both complainants and suspect, all reasonable lines of enquiry must be pursued. This is not new and the policy has not changed - mobile devices will not be needed in every case - but when they are, there is explicit guidance that only material relevant to a particular offence may be pursued, to minimise unnecessary intrusion. This applies to all offences and is not restricted to allegations of sexual offending.

More detailed information and advice will be found on the CPS website at cps.gov.uk

The position as advised by the police and CPS should be welcome because it reflects modern life and the necessary steps to ensure that evidence is secured to assault in the conviction of sex offenders. The vast majority of offences are committed behind “closed doors” which mean there are inevitably no witnesses, and so the police and prosecution are dependent on medical evidence, and that lies in the form of electronic communications.

For more information and to get in touch with Alan and Sam, please visit the Sexual Abuse page.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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