Police replace processing notice used to obtain agreement from victims and witnesses to search for relevant material on digital devices

In February 2019, a new Digital Processing Notice and supporting information was launched across forces in England and Wales to provide consistency between police forces in how they obtained digital evidence in their investigations. This form was intended to help police and prosecutors balance the needs of following all reasonable lines of enquiry, respecting the privacy of victims and witnesses, and meeting disclosure obligations.

On 1 September police replaced the forms with an interim version following the judgment handed down by the Court of Appeal in Bater-James and Mohammed [2020] EWCA Crim 790.

The interim forms will implement the principles set out in the Bater-James judgment, pending a permanent replacement being produced following further engagement with stakeholders. The permanent replacement, in conjunction with other ongoing work on Disclosure, will address fully the recommendations set out in the Information Commissioner’s investigation report into Mobile Phone data extraction that was published in June 2020.

The College of Policing will also produce new guidance on investigative practice where investigation of a 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 all 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 explain this process fully to victims and witnesses.”

The witness information sheet is here.

The officer guidance form is here.