A Defence Lawyers view on abiding by the rules of the game.
As a Criminal Defence Lawyer I want to achieve the best outcome possible for my clients. If victims of crime, such as rape, are required to hand over their mobile phones to police I have absolutely no doubt that there will be more acquittals, and as a defence lawyer that will be in the interests of all of my clients. But is it necessary? Is it proportionate? And is it right? Bear in mind that every solicitor must “uphold the rule of law and the proper administration of justice;” it’s the number one mandatory principle that the Solicitors Regulation Authority requires lawyers to abide by. In short we must abide by the rules of the game. Imagine the uproar if whilst playing a game of Monopoly my client obtains £300, whilst everyone else takes £200 every time they passed go!
Today, smart phones contain a wealth of knowledge. Consider the situation where a victim claims that she met a potential partner who raped her after they met on a date. They may have met through a dating app, (Tinder or Grindr) and they would have communicated with each other, (times of phone calls and text messages.) But what other information is she revealing? She reveals her movements throughout the day. She reveals all of her communication with others, she may reveal personal health information, and of course we have access to all of her internet use.
Health information is highly sensitive and personal. Currently a suspect may claim that the victim is ‘mental’ and wish to view her medical records. However there is no mandatory requirement for her to reveal her records, or to require a doctor to breach patient confidentiality. Why then should a victim lose this protection merely because the information is stored on her phone rather than stored in her GP’s filing cabinet.
We are told that children regularly access pornographic websites. What if our victim had accessed porn immediately before meeting her date. Is it really relevant? The fact that at 7:00 pm she watches 3 people having sex together, doesn’t mean that she can no longer consent at 7:30. Yes it is much, much more difficult for the prosecution, but even if a victim initiates sex with 2 others at 7:45, that doesn’t prevent her from withdrawing her consent at 7:46. Currently, judges ‘ordinarily’ prevent barristers from questioning victims about their previous sexual experience. I say ‘ordinarily.’ It should be the presumption that abiding by the rules of the game, barristers should also be prevented from asking victims about internet use until the judge agrees the relevance.
With every day that passes, we are slowly creeping towards a world where all of our secrets are laid bare. The Panopticon envisaged by Jeremy Bentham where there are no secrets, where the prison guards know what everyone else gets up to; but remember Bentham’s Panopticon was a design of a prison. Just because GCHQ and the data mining giants of Silicon Valley know about our sexual peccadillos, does not mean that the victim should face a barrage of questions in court? The astute amongst you, would have realised that there is a major difference between revealing the information to the Defendant’s lawyers, and presenting the evidence before a jury in court – that is of course correct, but for the Defendant to be acquitted, (the aim of the game if you wish) the information must be revealed to the jury.
In any event the current proposals seem unnecessary. Communication is a two way street. The messages on Tinder would have been stored on the defendant’s own phone as well. By supplying his own phone, to his own team, he only reveals his own information that he is willing to disclose; the victims personal data remains confidential. He can still place in evidence the texts he sent and received, and the game is played more fairly. I have no objection to anybody passing Go, just as long as they only get £200, just like everyone else.
If you have a problem in Criminal law, and wish to speak to a Defence lawyer call JARMANS Solicitors 01795 472291 and ask to speak to Terry Knox.