Police, Crime, Sentencing and Courts Bill (Seventh sitting)

(Limited Text - Ministerial Extracts only)

Committee stage
Thursday 27th May 2021 Public Bill Committees

[Sarah Jones]

I thank my hon. Friend for that intervention. She speaks with great experience, and she is absolutely right: doing these reviews has wider benefits. Reading the review on Child Q and hearing the stories from the father, mother and family members about him, we can see, hopefully, some form of the beginnings of closure from the review. Therefore we are very much in favour of extending homicide reviews in the way provided for under the Bill. We have some amendments, but they come later, so I will not speak to them now.

To do the victims and their families and friends justice, we need to ensure that the lessons are learned. Part 2, chapter 2 of the Bill will require police, local authorities and clinical commissioning groups to conduct offensive weapon homicide reviews when an adult’s death involves the use of an offensive weapon. Police recorded 625 homicide offences in the year ending December 2020. Of all homicides recorded in the last year—the latest year that we have information for—37% were knife-enabled crimes. A large proportion of homicides involve offensive weapons. In the year ending March 2020, 275 homicides involved a sharp instrument, 49 involved a blunt instrument and 30 were homicides involving shooting. It is therefore absolutely right that the Government look to learn the lessons from those homicides not currently reviewed by multi-agency partners.

In my constituency, there have been incidents in which adults have been killed and an offensive weapon was involved. In one instance, there were incidents in the same area within weeks of each other. Those cases were not linked together, but actually, when people looked into the background and how those murders occurred, it turned out that they were linked.

It is therefore important that the pathways that lead people to be involved in homicides, whether as victims or perpetrators, can be understood and the knowledge can be shared. Offensive weapon homicide reviews will be similar to the domestic homicide reviews that already take place. Domestic homicide reviews are carried out when someone over the age of 16 dies as a result of domestic violence, abuse or neglect. The Government have committed to taking action to address homicide, but have not previously committed to introducing offensive weapon homicide reviews specifically.

Clause 23 will require an offensive weapon homicide review to be carried out when a qualifying homicide has taken place. A qualifying homicide occurs when an adult’s death or the circumstances or history of the person who has died meet conditions set by the Secretary of State in regulations. In accordance with clause 27, the purpose will be to identify lessons to learn from the death and to decide on actions to take in response to those lessons.

Clauses 24 to 35 do a number of things, including giving the Secretary of State the power to specify the relevant review partners in regulations and which of the listed public bodies will need to carry out the review in these circumstances, and to clarify when offensive weapon homicide reviews do not need to be carried out. Importantly, review partners must report on the outcome of their review to the Secretary of State. In addition, there are other key regulations about the obligations of offensive weapon homicide review partners.

Clause 33 is important, as it will require offensive weapon homicide reviews to be piloted before they are brought into force. The Secretary of State will be required to report to Parliament on the pilot. It is vital that offensive weapon homicide reviews are piloted before being rolled out nationally, but the provisions are fairly light on detail. It would be helpful if the Minister could provide any further information on the piloting. Can she clarify how many local authorities or police forces they will work with to pilot the reviews?

Standing Together, a domestic abuse charity, recently reviewed domestic homicide review processes in London boroughs. Its 2019 report identified several areas for improvement, including how domestic homicide reviews are stored and retrieved, how chairs are appointed, and how appropriate funding is secured. It also highlighted that not enough sharing of knowledge is happening.

We are glad that the pilot partners will report on these reviews before they are implemented, but could the Minister explain in a bit more detail what those reports will include? Will there be regular reporting and evaluation of these offensive weapons homicide reviews once they are implemented? Where there is an overlap, and a homicide fits into two different categories—for example, if there is a domestic homicide review and an offensive weapons homicide review—how will the lessons be learned? Will there be two reviews, or just one? I am also keen to hear how the lessons from all existing homicide reviews can be better understood and shared between partners to ultimately make our streets safer and save lives.

The Secretary of State is given the power to make regulations on offensive weapons homicide reviews, to provide information on how to identify which local services are relevant to the review and how local services can negotiate who carries out the review when the circumstances are not clear. This is defined in regulatory powers, not on the face of the Bill; perhaps the Minister could explain why, and also explain what her expected timeframe is for these powers. If the duty to conduct these reviews will not be carried out until the criteria are defined in regulation, will there be a delay? What period of time is the Minister expecting that to be—because those regulations will need to go through Parliament—and what will happen after the regulations are published? Can she provide any data on how many more homicide reviews this change will actually bring; what expected number of reviews will need to be undertaken? Finally, what are the plans for budgets to cover local safeguarding partners’ costs for the delivery of these reviews? That question was raised in evidence from the Local Government Association, so will the Home Office be submitting a case to increase the funding for local authorities? If not, how does it envisage that these reviews will be funded? I will leave it there.

[The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)]

It continues to be a pleasure to serve under your chairmanship, Mr McCabe. I am very grateful to the hon. Member for Croydon Central for setting out some of the background to these clauses. Through the clauses relating to offensive weapons homicide reviews, we want to tackle the growing proportion of homicides that involve offensive weapons, for all the reasons that one can imagine: for communities, and for the families affected. As the hon. Lady has set out, there is at the moment no legal requirement to review such homicides unless they are already subject to review: if, for example, the victim is a child or a vulnerable adult, or the homicide has happened in a domestic setting. As such, we want to introduce these offensive weapons homicide reviews to ensure that local agencies consider the circumstances of both victims and perpetrators, and identify lessons from these homicides that could help prevent future deaths.

Taking a step back and looking at the Bill as a whole, this work will form part of the local authorities’ work on the serious violence duties. I hope there will be much cross-learning between those duties and the homicide reviews that may occur in local areas, as part of a joined-up approach to tackling such homicides. All persons, bodies and organisations with information relevant to the decision to conduct a review or to identifying lessons, such as schools and probation services, will be legally required to provide information deemed relevant to the review.

The hon. Member for Croydon Central has understandably asked where these reviews fit in with existing homicide reviews: child death and adult safeguarding reviews in England, and their equivalents in Wales, as well as domestic homicide reviews. To avoid duplication of work, the Bill provides that these new offensive weapons homicide reviews will be required only where there is not an existing statutory requirement to review the homicide, which I hope answers her question.

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[Maria Eagle (Garston and Halewood) (Lab)]

Given that the Minister is determined to learn the lessons of these reviews and given the importance of properly funding local agencies to carry out any such improvements, can she confirm today that additional resource will go along with this additional focus from the Home Office on implementation?

[Victoria Atkins]

I am very pleased to confirm that the Home Office will provide funding for the relevant review partners to cover the costs of the reviews during the pilot stage, and will meet the cost of the Home Office homicide oversight board. If the policy is rolled out nationally, funding arrangements will be confirmed after the pilot, but in that initial period that is certainly the approach.

I am trying to see whether I have further details about the pilots that I can assist the Committee with. Clause 33 requires that a pilot of the reviews takes place for one or more purpose, or in at least one area. We intend to pilot reviews in at least three areas and are currently in discussions to enable that to happen. We will announce the pilot areas in due course. We want to pilot the reviews in areas that have high levels of homicide and in areas that have low levels, and that represent regions in both England and Wales.

We will also specify in regulations the length of time that the pilot will last. We currently intend to run the pilot for 18 months to ensure that the review process can be tested properly in each of the pilot areas, but clause 23 allows us to extend the length of the pilot for a further period, which may be useful if further test cases are needed. Our approach is to ensure that the pilot provides us with the greatest insight and information as to how the reviews would work if we roll them out across the whole of England and Wales. In the interests of transparency, clause 33 also requires the Secretary of State to lay before Parliament a report on the operation of the pilot before the reviews can come fully into force across England and Wales.

Question put and agreed to.

Clause 23 accordingly ordered to stand part of the Bill.

Clauses 24 to 35 ordered to stand part of the Bill.

Clause 36

Extraction of information from electronic devices: investigations of crime etc

[Sarah Jones]

I beg to move amendment 94, in clause 36, page 29, line 5, at end insert—

“(c) the user who has given agreement under subsection (1)(b) was offered free independent legal advice on issues relating to their human rights before that agreement was given.”

This amendment would ensure that users of electronic devices were offered free independent legal advice before information on their device could be accessed.

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[Sarah Champion]

I thank my hon. Friend for all the points she made, which, to be quite honest, are common sense, but would cause a huge shift in victims’ and survivors’ perceptions of their rights. I have questions for the Minister.

On data storage and security, I am sure we were all pretty shocked and disgusted to hear that images relating to Sarah Everard were not secure in the police system. While I have a very high regard for the police, they can be a leaky sieve—let us be honest. Why do we not simply clone phones at the point of taking them? Why is it months, or usually years, before the victim gets their phone back? Would it be possible to put in legislation or guidance a timeframe on how long that phone can be held for? Having spoken to officers, it seems that cloning a phone is complicated and geeky; it tends to be put in a back drawer until they absolutely have to do it. A timeframe would give a lot of comfort to victims and survivors; they would know it was only a week until they got their photos back, for example.

Finally, a myth has been perpetuated that victims and survivors have to hand over their phone or mobile data to the police or their case will not be taken forward. I have heard examples of victims and survivors being told expressly that if they do not hand it over, they are withholding evidence and could be prosecuted. At that point, unfortunately, a number of survivors drop out of the process and withdraw their charges altogether. If the Minister is able to give reassurance on that, that would be hugely appreciated.

I turn to amendment 115, on the list of people who may extract data. The list is pretty extensive, but one group stood out: immigration officers may request a mobile phone. A few months ago, I went to a large asylum hospital in my constituency, where there were 50 to 100 men—I do not know how many—and what concerned them most was that, literally as they entered the country, their mobile devices and indeed clothes were taken off them. There was no debate or explanation; it is just part of the process.

I completely understand the argument that very bad people, such as gangmasters, who come into the country may have a lot of contacts that are relevant to police inquiries. The police and transport police are already on the extensive list of people who may access electronic devices, so if an immigration officer was concerned, they could get a police officer to take the digital device away. That is not a problem. Extracting data is a complex process that requires specialist experience, and it ought to be managed under the law. I am concerned that we are asking immigration officers to be incredibly mindful, and to be trained and resourced, and to have all the skills, to request that device.

The people I met fell into three camps: economic migrants, who have paid to come over here; people who have been trafficked over here; and those brought in specifically for modern slavery. All the men I spoke to wanted to see pictures of their loved ones. They wanted those memories from home, and a mobile phone may be the best way to hold those memories and connections.

I do not know anyone’s telephone number aside from my parents’—it was the one I grew up with. I can call the police, the NHS helpline and my mum, but everything else is stored on my phone. If I lost it, I would not know how to respond—and I have back-ups that I can access, and English as my first language. When I changed phones, I did not download properly and lost five years of photos. That was so painful. Imagine someone being trafficked into this country, and probably horrifically abused on the way in. The one thing they can hold on to is their memories on that digital device, but that is taken away. They have no information about why it was taken, or when it will be returned, and all their contacts have been lost.

All the points that my hon. Friend the Member for Croydon Central made apply in this case. Immigration officers are one of the groups who may take these devices—this is not a dig against immigration officers, who do a difficult job—but in any other situation a police officer or a court order would be required to take such detailed data. I ask the Minister please to remove immigration officers from the list.

[Victoria Atkins]

I welcome the discussion about this chapter of the Bill, because the framework we are setting out is a really important step forward in improving the expectations about and management of digital data that victims and complainants may have on their digital devices. Of course, completely understandably, the focus has been on complainants in sexual violence cases—I will go into some detail on that in due course—but the chapter applies across the board. If, for example, in cases that do not relate to sexual violence, a mobile phone is deemed to be relevant and the authorised person is satisfied that the exercise of the power is necessary and proportionate, this chapter will apply.

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I would not want anyone to think that this framework is the Government’s only answer to the far wider problem of conviction and charge rates in rape cases, or that this is the work to ensure that victims feel supported in their journey through the criminal justice system—it is not. It is but one step in our work on that. Colleagues will know that only this week there was an urgent question directed towards my hon. Friend for one of the Hampshire seats—I cannot remember whether it is north, south, east or west.

[The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)]

North West.

[Victoria Atkins]

Thank you. The Minister for Crime and Policing, my hon. Friend Member for North West Hampshire (Kit Malthouse) answered the urgent question on the timing of the rape review. Colleagues will know that for the last two years, the Government have commissioned intensive research into each stage of the process within the criminal justice system of a rape case or a sexual violence investigation, from the moment of reporting through to the moment when the case finishes, whether by way of a verdict or if a trial does not go ahead for any number of reasons. We had very much hoped to publish that review by the end of last year. However, we were very understanding of the fact that the Victims’ Commissioner and women’s charities wanted to make representations, in particular looking at the shadow report by EVAW—End Violence Against Women. We were mindful that there was a super-complaint under way as well. Therefore, we have paused publication in order to take into account some of those factors.

The Minister for Crime and Policing informed the House this week that we plan to publish the review after the Whitsun recess. It will show the Government’s intentions in relation to this particular category of cases, sexual violence cases, and will of course sit alongside this Bill, but will go much further than the Bill. On some of the situations, scenarios and experiences that were described today and last week in evidence, I just urge caution until the rape review is published, because there may be answers in that document.

In terms of the legal framework, I think it is really important that we have this in the Bill and that the rights of victims and of suspects and defendants are set out and clarified and that we introduce consistency where that has been alleged in the past to be missing.

I note just as an example that one of the other ways in which we are really trying to help victims of sexual violence is through support for independent sexual violence advisers. We already have ISVAs working with victims across the country. This year, we have been able to announce the creation of 700 new posts, with some £27 million of funding. I give that just as an example. This is an important part of our work, but it is not the only piece of work that we are doing to address some of these very genuine concerns.

[Sarah Champion]

I am hearing everything that the Minister is saying. Knowing that the review is coming out—I assume it is something that she has been working on or very closely with, because of her intense involvement and support in this area—does she feel that the measures in the Bill are proportionate or are they something that, once the review comes out, she may look at changing, to ensure that the safeguards that she speaks of are embedded in the final Act that we see?

[Victoria Atkins]

We have been working together on this. We must not not forget that the background to the legal framework has to take into account the Criminal Procedure and Investigations Act 1996 and the more general disclosure rules, for example. But this has been very much a piece of work across Government, because we want this framework to give confidence and clarity to victims and to suspects, but also, importantly, to the police and the Crown Prosecution Service, because they are the ones who must administer and work within the legal framework and the code of practice.

If I may, Mr McCabe, I will take a bit of time, because this is such an important measure and I am mindful that there are questions about it, to set out some of the detailed thinking behind the way in which the clauses have been drafted. The current approach to the extraction of information from digital devices has indeed been criticised by some as feeling like a “digital strip-search” where devices have been taken as a matter of course and where, in many cases, all the sensitive personal data belonging to a device user was extracted and processed even where it was not relevant to the offence under investigation. We absolutely understand the concerns that have been raised in relation to that.

[Alex Cunningham]

I think this is an appropriate point for me to lay the challenge on the Government about the decision to classify children as adults at the age of 16 in clause 36(10). The Minister has just used the expression “digital strip-search”. Is it really appropriate for a 16-year-old girl, or boy for that matter, to have a digital strip-search, giving up all their little secrets and everything else, because the Government think that they should be classified as an adult and that adult factors should be applied directly to them?

[Victoria Atkins]

I will deal with that in detail in due course. Just so that colleagues understand how that age was settled upon, in the drafting we carefully considered people’s views, including the Information Commissioner, about the freedoms and the feelings of power and authority that users of devices have. We settled on the age of 16 because we understand that a 16-year-old is different from a 12 or 13-year-old, if their parents have allowed them mobile phones, although I am banning my son from having a mobile phone until he is at least 35, but there we go. A moment of lightness, sorry.

I will deal with the point in more detail later, because it is important, but there is a difficult balance to maintain between rights of victims, suspects and defendants but also rights of users, particularly under the European convention, so that has been the Government’s motivation in this. However, we are alive to scrutiny.

[Sarah Champion]

I think this involves the focus that I hope the Minister is going to come to. I hear everything she has just said about the justification and I am going along with that, but it is clear in subsection (10):

“In this Chapter—

‘adult’ means a person aged 16 or over”.

Why was that specific wording chosen rather than “the remit of the clause covers people from the age of 16 onwards”, for example?

[Victoria Atkins]

I will come to that later, but the hon. Lady knows that I am in listening mode on this. The Bill includes requirements to obtain agreement to extract information; to ensure there is reasonable belief that the required information is held on the device; and, before using this information, to consider whether there are less intrusive means of obtaining it. That is an important point that I know hon. Members have focused on. The clauses will ensure that the victim’s right to privacy will be respected and will be at the centre of all investigations where there is a need to extract information from a digital device.

The Bill also includes a new code of practice. This will give clear guidance to all authorities exercising the power. It will address how the information may be obtained using other, less intrusive means; how to ensure that agreement is freely given, and how the device user’s rights are understood. All authorised persons will have a duty to have regard to the code when exercising or deciding whether to exercise the power. The clauses are also clear that the code is admissible in evidence in criminal or civil proceedings and that a failure to act in accordance with it may be taken into account by the court. It will give up-to-date, best practice guidance for selectively extracting data considering existing technological limitations. That will be updated as and when further capabilities are developed and extended to all authorities able to use this power.

[Sarah Jones]

The Minister is outlining how important the code of practice is. Is she therefore sympathetic to the view that we have put forward in our new clauses that that code of practice should be pulled together with a list of eminently sensible and professional organisations and people, and that we should define in the Bill some of what that should include because it is so important?

[Victoria Atkins]

We are going to be even more ambitious than that. We aim to publish a draft on Report, which means the House and the other place will be able to scrutinise the draft code of practice during the scrutiny of the Bill as a whole. Once the Bill receives Royal Assent, we will consult formally on the code of practice, including with the relevant commissioners, to enable a more detailed draft to be laid before the House. Again, we are in listening mode on the ways in which the code of practice should be drafted, because we understand how important it is and how important it is that victims, the police and the Crown Prosecution Service, among others, have confidence in the document.

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[Victoria Atkins]

I am so sorry—I have not quite understood the hon. Lady. On the taking of a phone, if I have just been told that we are concerned about the ramifications of cloning it, I do not see why we would clone it despite those reservations in order to provide photographs. I would be very uneasy about having differences in how the police handle digital data depending on the personal circumstances of the person from whom they have taken a phone, including nationality. I would be very cautious about going down that road.

[Sarah Champion]

I did not mean to be used in court. I meant for the individual who has lost their one contact with home—that they could get a copy or a print-out of photos, rather than the device just being taken away with no explanation of when they are going to get it back again.

[Victoria Atkins]

I am very cautious about distinguishing between different victims. Perhaps the hon. Lady is alleging that the person she is talking about is a victim. The framework is about consistency and clarity, and I would be concerned about having caveats here and there in order to fit individual facts. Part of this test is about relevance, necessity and proportionality. Those are the tests that we are asking officers to apply, and we would have to apply them across the board.

There are situations within the framework whereby the power can be used without agreement, such as to locate a missing person where the police reasonably believe that the person’s life is at risk. Under clause 36, the police may have good reason to believe that a device has information that will help to locate the person. In such circumstances, clearly the person is not available to give their consent, so clause 36 ensures that officers can extract data, if it is necessary and proportionate, to protect the privacy of the user. That also applies in relation to children who need to be protected.

New clause 49 raises the bar for the exercise of the power in clause 36(1). The necessity test under new clause 49 is one of strict necessity. I am not persuaded that adopting the phrase, “strictly necessary and proportionate”, instead of “necessary and proportionate”, will make a material difference. This phrase is well used in the Bill. I note that article 8.2 of the European convention on human rights—the very article that people are relying on in relation to the framework—permits interference with the right to respect for private and family life. Such interference is permitted where it is necessary to achieve various specified objectives.

[Sarah Jones]

I understand what the Minister is saying. The review in Northumbria showed that about 50% of requests were not strictly necessary and proportionate. That must be wrong, and we are trying to make sure that people know what they are giving over, that they do it voluntarily and that it is absolutely necessary that such information is requested. Apart from trying to be clear about what is proportionate and necessary, what solution can the Minister put in place to make sure we do not have 50% of cases involving asking for information where it is not necessary and proportionate?

[Victoria Atkins]

On what the hon. Lady has described, I am not sure what difference it would make. I am trying to put myself in the boots of a police officer. Would a police officer ask for data if they read the words, “strictly necessary”, but not if they read the word, “necessary”? Actually, the problem that has been identified by the figure quoted by the hon. Lady is police officers’ understanding of the legislation, which comes back to training. Article 8, on which many rely in this context and in this part of the Bill, refers to “necessary” interference, and I am not clear what “strictly necessary” would add to that.

New clause 49 seeks to provide that information may be extracted only for the purpose of a criminal investigation

“where the information is relevant to a reasonable line of enquiry.”

There are safeguards within the clauses to ensure that information is not extracted as a matter of course, and they have been drafted with respect for victims’ privacy in mind. They include a requirement that the authorised person has a reasonable belief that the device contains information that is relevant to a purpose for which they may extract information, and that the exercise of the power is necessary and proportionate to achieve that purpose.

[Sarah Champion]

I hear everything the Minister is saying and it is very plausible, but I want to challenge her assertions on necessary, proportionate and clear lines of inquiry, based on the answer I received to a written question to the Home Office on 11 November. I asked about the process of extracting mobile phones. The Under-Secretary of State for the Home Department, the hon. Member for Croydon South replied:

“Immigration Enforcement search all migrants”—

at this point, “all migrants”, so we do not know yet whether they are an asylum seeker, being trafficked or are here for nefarious purposes—

“upon arrival at the Tug Haven at Dover. In the event that a mobile phone is discovered it will be seized as part of an investigation into the organised crime group involved in the facilitation.”

Again, we do not know if they are a criminal or a victim at this point, but the phone will be seized regardless.

“The migrant will be informed verbally that the phone will be kept for evidential purpose for three to six months. They are provided with a receipt and contact details. Attempts will be made to communicate this in their first language, although this can be challenging due to external factors.”

So people arrive here, immediately their phone is taken away from them and they might not even know why. It is great that within “three to six months”, they are meant to have that response—

[Chris Philp]

Because they are here illegally.

[Sarah Champion]

Sorry, Minister? I do not think that the reality on the ground—the reality that the Home Office acknowledges—backs up what the other Minister is saying about reasonable, proportionate and lines of inquiry, because it is happening to every migrant coming into this country.

[The Chair]

I know this is important detail, but I remind the hon. Lady that interventions should not be too long.

[Victoria Atkins]

I cannot hope to do justice to a parliamentary question answered by my hon. Friend the Member for Croydon South, the Immigration Minister, because I know the care and attention he gives to answering such PQs. However, over lunch, I will attempt to extract an answer that will do justice to his response. I make the point that the hon. Member for Rotherham is referring to practice at the moment. Again, the point of this legal framework is to ensure that we have consistency and clarity of approach. I will try to do my hon. Friend justice when we return at 2 o’clock.

I will now move on to the Criminal Procedure and Investigations Act 1996 and its code of practice, because those provisions on “reasonable lines of inquiry” will continue to apply to the investigation of criminal offences in England and Wales. We cannot—must not—view the extraction of digital data in a vacuum, apart from the rest of the powers of, and duties on, police officers and the CPS when it comes to a criminal trial.

In the context of mobile phones, iPads and so on, police forces will continue to use the digital processing notice developed by the National Police Chiefs’ Council for this purpose. It explains in lay language how the police extract the information, which information might be extracted, how long the device might be retained for and what happens to irrelevant material found on the device or devices. The notice makes it clear that investigators must respect an individual’s right to privacy and must not go beyond the reasonable lines of inquiry. That is the golden thread that runs throughout the Act.

It is imperative that the existing procedures for investigations set out in the 1996 Act are followed. Although the clauses in the Bill concern a broader range of activity than just criminal investigation, helping as they do in investigations for missing persons or to protect children, we do not want to introduce any ambiguity. I will therefore reflect on that, but we are clear that the CPIA provisions must continue in the context of criminal investigations.

I note that new clause 49 would omit subsection (7)(b) of clause 36. We are clear that police officers and others using the extraction power should always seek to obtain the information required in the least intrusive way possible. There are situations in which it may not be reasonably practicable to utilise the least intrusive means of obtaining information, and this clause ensures that authorised persons may make that judgment. That could be because the time it would take to gather the information might affect the investigation or increase the risk of harm to an individual, or because those methods would mean intruding on the privacy of a wider number of people.

I will give one example and then I will sit down. When searching for a missing person, information such as an image on a witness’s device might also be captured on CCTV. Identifying all cameras, and downloading and reviewing many hours of CCTV footage is a time-consuming process. The authorised person may decide that it is more appropriate to extract the information from the device in order to speed up the inquiry and to try to locate the missing person before they come to harm.