Police, Crime, Sentencing and Courts Bill
Wednesday 27th October 2021
(3 years ago)
Lords ChamberPolice, Crime, Sentencing and Courts Act 2022 View all Police, Crime, Sentencing and Courts Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 40-III(b) Amendments for Committee (supplementary to the Third Marshalled List) - (27 Oct 2021)
Lord Rosser
“(c) the user who has given agreement under paragraph (b) was offered free independent legal advice on issues relating to their human rights before that agreement was given.”Member’s explanatory statement
This would require free independent legal advice to be offered to a person before they agree to extraction of data from a device.
Lord Rosser (Lab)
My Lords, I am associated with six amendments in this group: Amendments 79, 89, 92, 102, 106A and 107. Chapter 3 of the Bill deals with the extraction of information from electronic devices, which has increasingly become a routine part of criminal investigations.
In this group we are dealing with when victims are asked to hand over their phones as evidence and, more specifically, the issue of what have become known as “digital strip searches”. Rape victims, in particular, are normally asked to hand over digital devices and are subjected to having their privacy indiscriminately trawled through after they report a crime. Before I go any further, I pay tribute to the Victims’ Commissioner, Dame Vera Baird, for her leadership on this issue.
These matters were pursued in the Commons, and I shall just quote an extract from what my colleague, Sarah Jones MP, said during the Committee stage debates:
“Analysis of a rape crisis administrative dataset conducted by the office of the Victims’ Commissioner showed that one in five victims withdrew complaints at least in part because of disclosure and privacy concerns. Victims in 21% of cases had concerns about digital downloads, about disclosing GP, hospital, school and employment records, and about a combination of negative press coverage. Home Office data also shows an increase in pre-charge withdrawal of rape complaints. In the year ending December 2020, 42.8% of rape offences were closed as part of what is called the “evidential difficulties” category—where the victim did not support further police action against a suspect—compared with 25.6% in 2015. As we know, the charge rate for sexual offences is just 3.6%, and for rape it is 1.6%.”—[Official Report, Commons, Police, Crime, Sentencing and Courts Bill Committee, 27/5/21; col. 277.]
This issue of disclosure and privacy is a factor, too, in victims deciding whether even to report a rape or a crime in the first place. As I mentioned, these issues we are now debating were raised at every stage in the Commons by the Opposition, but we welcome the fact that the Government have listened to us and to the Victims’ Commissioner and have brought forward changes as reflected in government amendments to the Bill. I thank the Minister and the Bill team for their engagement on this part of the Bill.
The government amendments, to which the Minister will obviously refer, make much needed and welcome improvements to the Bill. There is more, though, that needs to be achieved, which various speakers in the debate this evening will no doubt cover, but we welcome the progress so far.
Government Amendment 81 deals with the key issue raised by the Victims’ Commissioner and our amendments: the power to extract information should not be used indiscriminately or to trawl through a victim’s life but should be used only where information is relevant to
“a reasonable line of enquiry”.
I particularly welcome that government Amendment 93 puts into the Bill that a victim can refuse to hand over a personal device and that they must be told that the investigation will not be ended just because they refused to consent to a download. Complainants being told that their cases will not continue unless they hand over the contents of their phone is exactly what independent sexual victims’ advisers and complainants have said has happened or happens on a daily basis. It is vital that the change not only legally limits what can be asked for but drives a culture change in how victims are treated. One hopes that this change to the Bill will provide a clear path forward.
However, I have a number of questions. The Government’s new clause says that a victim must not have “undue pressure” put on them to agree to data extraction. Surely being under any pressure in the context that we are talking about is undue. Do the Government not agree with that?
The new clause dictates that victims be provided with details in writing of what information is being sought and why and how it will be dealt with, explicitly stating that a victim can refuse to hand anything over, but what will be done to ensure that victims understand clearly and with confidence what is being asked for? A victim will often be in an extremely vulnerable state while they try to navigate and follow the system and what they are being asked for. Will the Victims’ Commissioner be involved in designing that written document, and will we have advance sight of it?
My Amendment 79, which is supported by the noble Baroness, Lady Jones of Moulsecoomb—for which I thank her—would answer the question of protecting victims as they go through this process. It would provide that a victim should be offered free, independent legal advice before they are asked to give consent to their device being accessed. There is precedent for this: the Home Office funded a pilot of independent legal advice dealing with digital download for rape complainants in Northumbria. The sexual violence complainants’ advocate scheme pilot engaged local solicitors to provide legal advice and support to rape complainants related to the complainant’s Article 8 rights to privacy. The pilot demonstrated what was happening in practice and found that about 50% of requests were not strictly necessary or proportionate. Some police officers who participated in the scheme expressed concern about this culture. The Home Office’s own pilot clearly demonstrated the need for and benefit of independent legal advice for victims in this area. I look forward to the Minister’s response on behalf of the Government.
There is a particular omission from the government amendments which we want to raise. Amendments in my name would require that the request for data be “strictly necessary and proportionate” to its purpose as part of a reasonable line of inquiry into a crime. Such a test, but which I think is worded as “reasonably necessary and proportionate”, is already a requirement of the data protection legislation for any such request for private material of this kind, but police practice has not always followed the Data Protection Act in this regard. We therefore seek this specific safeguard against too wide a search and too easy a rejection of other means of obtaining the information by including the “strict necessity” test in these clauses. I believe, although I will stand corrected if I am wrong, that the Victims’ Commissioner is of a similar view. I hope that the Minister will address this issue in the Government’s response.
I welcome Amendment 99, again tabled in response to issues that we have raised, which adds the Victims’ Commissioner, the domestic abuse commissioner and the Commissioner for Victims and Survivors for Northern Ireland to the list of people who must be consulted in preparing the code of practice. I also welcome the absolutely necessary amendments to the definition of adult to no longer include 16 and 17 year-olds.
Amendment 106A, a key amendment, would require the Government to extend the safeguards that we fought for in this section to third-party material. I am immensely grateful to the noble Lord, Lord Anderson of Ipswich, and the noble Baroness, Lady Newlove, for their support through adding their names to this amendment. Here we are talking about private material about a complainant that is held by a third party: medical records, school reports, social service records, or records of counselling or therapy that a person may have had, including pre-trial therapy.
It currently seems to be routine for excessive personal information to be requested from third parties. The results have a chilling effect on a victim’s confidence and are an immense invasion of privacy in contravention of the victim’s Article 8 rights to privacy. In one example case, a letter to school in which a rape complainant had, as a child, forged her mother’s signature to get out of a lesson she did not like was disclosed to the defence and used in cross-examination.
The Victims’ Commissioner reports on cases where a victim assaulted in their 30s is asked to consent to their child social services records being trawled. In cases of stranger rape, in which there has been no prior contact at all between the complainant and the accused, similar demands are made for a lifetime’s worth of information on the victim to be handed over. Independent sexual violence advisers report that these searches are demanded as standard and, of course, victims are regularly told that their cases will be dropped if they do not consent. The Victims’ Commissioner has said:
“It is my assertion that the only way to bring about a much-needed change in practice is to ensure that the framework in place to protect victims’ Article 8 rights is embedded in the legislation itself”.
Crucially, these protections, as I understand it, have the support of the National Police Chiefs’ Council lead for disclosure.
The police have offered their support, both on the grounds of reducing unnecessary infringements into a victim’s right to privacy and to reduce delays to investigations caused by the excessive and time-intensive pursuit of victims’ material that is not required by a reasonable line of inquiry. This, it is felt by the police, would reduce the likelihood of victim disengagement, which is one of the main challenges to overcome in order to improve performance in rape investigations. This is also an issue for organisations such as schools, NHS trusts and others that are approached for information and perhaps do not have the expertise on what is required of them. This issue has been raised with police and crime commissioners and investigated by the Information Commissioner.
A 2018 serious case review concerning sexual exploitation of children and adults with needs for care recommended a review of those practices. Referring to the spectacle he witnessed of vulnerable victims being cross-examined about their social services, school and medical records, senior barrister David Spicer stated:
“There is a strong argument that this is inhuman and degrading treatment prohibited by the European Convention on Human Rights and does not lead to fair administration of justice.”
The Victims’ Commissioner has also raised the recent issue that CPS guidance has been updated, apparently this month, to lower the threshold for disclosure of information. The update removes an existing narrow test for seeking to obtain third-party material based on previous case law, and instead lowers protections. This is a concerning development when, at the same time, the Government are agreeing to increased protections in other parts of the Bill.
The amendment on third-party material would require victims to be provided with details on what information is being sought and why, how it will be used, and for that information to pass a strict necessity test whereby requests would be permissible only as part of a reasonable line of inquiry. This amendment provides that victims must not be pressured or coerced into giving consent, and that other, less intrusive, options must be used where possible. Crucially, it provides that victims must be given access to free independent legal advice on their rights.
Lord Anderson of Ipswich (CB)
My Lords, I put my name to Amendment 106A, which the noble Lord, Lord Rosser, has just introduced thoroughly and persuasively. Although I have sat as a part-time judge in crime for many years now, I freely admit that I do not have the depth of background in this field of other noble Lords, not least the noble Lord, Lord Macdonald of River Glaven, who I see in his place. Nevertheless, I am inclined to support this amendment for three reasons, on which I hope the Minister might comment.
First, as I understand it, the amendment simply seeks to extend to third-party material the safeguards that have already been agreed by the Government in relation to data in the possession of the victim. Do the Government share that understanding? If they do not accept that the same protections are appropriate in those two situations, could the Minister explain why?
Secondly, the Victims’ Commissioner asserts in her detailed briefing that it has become “routine” for rape complainants to be asked to hand over excessive personal information, including third-party material. She cites, among other things, a CPS internal report reported in the Guardian in March 2020 to the effect that 65% of rape cases referred by police to the CPS for early investigation advice involved disproportionate and unnecessary requests for information. She quotes officers from Northumbria Police as saying that third-party material is a “real bone of contention” and:
“The CPS routinely ask us to obtain peoples 3rd party, medical, counselling and phone records regardless of whether a legitimate line of enquiry exists or not.”
Is that a picture the Government consider to be accurate?
Thirdly, it is said that this amendment has the full support of the National Police Chiefs’ Council lead for disclosure and of the Information Commissioner. That prompts me to wonder about the position of the Crown Prosecution Service, which seems equally relevant. Does the CPS take a different view from the policing lead and the Information Commissioner and, if so, how does it defend that view? I am sure that other noble Lords, like me, appreciate the difficulty of the task of the CPS and would give it a fair hearing. In summary, the Government seem to have a case to answer on Amendment 106A and I look forward to hearing from the Minister what that answer might be.
Baroness Bennett of Manor Castle (GP)
My Lords, I will speak briefly on my own behalf and that of my noble friend Lady Jones of Moulsecoomb, who is unable to be with us this evening. My noble friend attached her name to Amendments 79, 89 and 107. The noble Lord, Lord Rosser, has given us a very clear and complete explanation, so I just want to reflect on the average age of noble Lords, as we sometimes do. We really have to work quite hard to understand the way in which people’s lives are entirely contained in their phones, particularly younger people, and what an invasion it is to have that taken away.
The noble Lord, Lord Rosser, referred in particular to Amendment 107 and the situation of immigration officers. I have heard a number of accounts of what has been happening to people arriving, particularly from Calais and surrounding areas, on boats in the most difficult and fearful situations. For people who wish to contact family and friends to say they are safe or wish to make some kind of plan for the future, to lose their phone in those situations or have it taken away is very difficult.
We have not had an introduction to Amendment 103, tabled by the noble Lord, Lord Beith, to which I have attached my name. We have had expressions of concern from the Delegated Powers and Regulatory Reform Committee, and we really would like to hear from the Minister the justification for that. By oversight, I failed to attach my name to Amendment 104. As a former newspaper editor, I think we really need to get a very clear explanation of how confidential journalistic material could be covered under these circumstances. We have grave concerns about freedom and the rule of law in our society, and this is a particularly disturbing clause.
Lord Beith (LD)
My Lords, this is an important part of the Bill and an important and large group of amendments. I want simply to concentrate on the two amendments to which the noble Baroness has just referred: Amendments 103 and 104, which are in my name.
Amendment 103 follows concern from the Delegated Powers and Regulatory Reform Committee and its recommendation to deal with what it describes as an inappropriate delegation of power. The Bill leaves to regulation all provision about the exercise of the powers in Clauses 36(1) and 39(1) to extract confidential information. Regulations are to implement a code of practice, which will itself be consulted on. The committee believes these powers should instead be in the Bill, and I agree. However, I part company with the committee in its view that these powers, once put in the Bill, should be amendable by affirmative instrument. That is the creation of a Henry VIII power to modify primary legislation by means of secondary legislation, so I do not think it is the best way to handle the matter. Of course, one of the problems is that, whereas the process of creating the original material, if it is in the Bill, is an amendable process, that does not apply to any subsequent regulations which would definitely alter the material on the face of the Bill.
The Government’s argument for their approach—leaving it all to regulations—is that this is an area of fairly rapid technological change. It might become possible, for example, to extract a relevant subset of information rather than having to extract everything. However, that could be covered in the drafting of the Bill. A major change in the future would justify parliamentary legislation. If the technology really does change the situation dramatically, both Houses could deal with the matter by primary legislation.
I am sure there is a potential compromise under which the Bill could state more extensively and clearly the general principles governing the extraction of confidential information. It already does so to some extent, but if it did so further, it would narrow the range covered by regulations, if they are necessary at all.
It would also be helpful if the Minister could explain why the process to revise the code of practice from time to time would be subject to the negative procedure only. If the regulations which embody the code of practice are going to be changed significantly, why should that be only by the limitations of negative procedure?
Amendment 104 is quite different. It probes the provision in Clause 41(2)(a) covering confidential journalistic material with the meaning given in the Investigatory Powers Act 2016. The regulations are intended to cover the extraction and use of such material. It would be helpful if the Minister could set out the Government’s position and intention on confidential journalistic material and to what extent it is to be treated differently from protected material, such as legal privilege. We need that to be spelled out more clearly. I look forward to the Minister’s response.
Baroness Chakrabarti (Lab)
My Lords, I rise to speak in support of the broad thrust of all these amendments and in particular to support the most important one of all, which is Amendment 80 from the noble Lord, Lord Paddick, to which I have added my name.
To begin by way of balance—both political and gender balance—I pay tribute to the noble Baroness, Lady Newlove, who could not be here this evening but who has been incredibly supportive of women’s groups and has been alive to this issue for some considerable time. She was sorry not to be able to be here.
A few years ago, when I was sitting where the noble and learned Lord, Lord Falconer of Thoroton, sits now, I had the privilege of questioning a former Justice Minister about the legal basis for the practice that women’s groups and victims of sex crime had called digital strip searching. Many in your Lordships’ House groaned as if I was using an inappropriate phrase. To be honest, I did not get a lot of support from many noble Lords on any side of the House, but it is better to be late to the party than not come at all.
I say that to the Minister because there is no competition for sainthood here. All sides of this House are a little late to this issue, but we now have this precious opportunity to grapple with it. I do not think any of these formulations are perfect yet. I am so grateful to the Minister for discussing this with me recently, among other issues, as even the progress that the Government have made so far in these amendments can be improved.
I think the noble Lord, Lord Paddick, in his very simple Amendment 80, has done something incredibly important. I questioned the previous Justice Minister about the legal basis for taking these phones at all. Imagine that you have been raped or assaulted and have been through this horrific experience, but you do what a lot of people find very difficult to do—we know about the attrition rates—and go with a friend to the police station, to be told that you now have to hand over your device. The Minister will forgive me, but we discussed this together recently. If I were to hand my phone over, I am not just handing over an old-fashioned telephone; I have so many dear friends and family members whose numbers I do not know, because I click their names to call them. I have just been raped, but I am now giving away my contact with these people, my diary, my shopping lists and my browser, which shows all the mental health and other websites I have visited. Let us be clear: this is probably more intrusive than searching my home. The Minister will forgive me, but we discussed this together.
The Lord Bishop of Bristol
My Lords, some common themes are emerging. I rise in support of Amendment 107, which was tabled by the noble Lord, Lord Rosser, and to which I have added my name, alongside that of the noble Baroness, Lady Jones.
The inclusion in this Bill of immigration officers among those authorised to undertake digital extractions strikes me as extremely troubling, particularly in the absence of significantly more detail on the safeguards, including the meaning of “agreement” and the specificity of the data sought, and the relevant training and expertise of these officers. Voluntary provision and agreement to extract data must surely rely on a level of informed consent. If it is not, then “voluntary” and “agreement” are just empty words.
For vulnerable asylum seekers and other migrants who come to the attention of immigration officers, it is not remotely clear how such informed consent is to be assured under what is currently proposed. Asylum seekers have, by their nature, often experienced negative reactions with agents of the state. In 2020, the top five most common countries from which people were seeking asylum in the UK were Iran, Iraq, Albania, Eritrea and Sudan. These are, to state the obvious, not countries where citizens, never mind those who flee as asylum seekers, tend to develop trusting or positive relationships with state officials, particularly those in uniform. To this experience in their countries of origin we have to add the fear and unfamiliarity of their situation on arrival in the UK. The hostile environment and its successor policies have been immensely successful in at least one regard: many migrants have come greatly to fear our immigration officers and the powers that they possess.
In outlining what I have said so far, I am trying to explain the extraordinary power imbalance, to say nothing of the language barriers, in place between an immigration officer and asylum seeker. It is hard to imagine how, under such a scenario, informed consent for voluntary provision and agreement could legitimately be established. It is particularly hard to imagine when we see no safeguards provided for assuring what is meant by such agreement or on what specific data it is deemed legitimate to extract. It is crucial to get this right. The data-extraction provisions of the Bill look to place current and future practice on a statutory footing. This is important, because the present practice of immigration officers is extremely concerning.
When the Bill was in Committee in the other place, as we have heard, the Member for Rotherham raised an all too common example of an asylum hostel containing some 50 to 100 men, all of whom had had their mobile devices seized as they entered the country. This was done without clear explanation or debate, and certainly without informed agreement or consent. The men in question did not know what, if anything, had been taken from their phones or accessed. This is proving to be a common story expressed by those working in the refugee and asylum sectors. It has simply become part of the process that mobile devices will be confiscated, without clear explanation or consent.
As we have heard, data extraction is a particularly serious privacy interference. It ought to require a high bar of necessity to be reached to justify any such intrusion, and strict parameters on what data is being secured and for what purpose. By contrast, the Home Office has proven consistently reluctant to explain current processes, and I hope we might engage with it on how to take this forward.
As the lead Bishop on modern slavery and one of the Lords spiritual who works on migration issues, I am all too aware of the insidious evil presented by human trafficking and people smuggling. I therefore sympathise hugely with the Home Office, as it tries to counter organised crime in these areas. I do not doubt that there are cases in which data extraction could prove useful in that ongoing battle. However, I suggest in concluding that we can achieve the benefits of such activities without such widely drawn and unchecked powers for immigration officers. I hope the Government will engage in a full process of exploring how any relevant data can be obtained in a way that is consensual, limited, targeted and carried out by professionals with sensitivity training and expertise. In particular, I hope to hear more about how the extreme power imbalance produced by an immigration officer doing this extraction can be better addressed than the Bill does at present.
Lord Hayward (Con)
My Lords, as my noble friend Lady Wyld did earlier, I apologise for not being present at Second Reading. Like my noble friend, I had been diagnosed as a Covid sufferer only a few days beforehand and was unable to participate in the debate. Therefore, if I go slightly wider than one or two amendments, I hope the Committee recognises why.
In making my comments, first, I emphasise that what I say in no way minimises the impact that the failure to tackle rape and sexual assault is having on society, particularly women and young females. There is no doubt that there is a major problem. I think that all Members of this House, including me, are only too closely aware of cases of rape and sexual assault that have had a dramatic effect on the individuals concerned.
I take this opportunity to emphasise that this is not solely a women’s issue. This issue affects men in society as well, particularly gay men. I noticed that as I started that sentence the noble Lord, Lord Paddick, was nodding; we are particularly conscious of the impact that sexual violence and rape have in the gay community as well as among females. To everybody, not just those in this House, I say this: the regularity with which I hear this issue being discussed as if it is a female-only issue causes me enormous concern and, I think, causes a lot of people hurt.
Reference has been made to rape cases and non-reporting and people being deterred from reporting. I know of one particular case, very close to me, in which somebody was subjected to an attempted rape. They chose not to report it, not because they would have had to disclose their mobile phone but because they took the view that the police’s response would be, “Well, you put yourself in that position in the first place”. We have all heard that phrase in relation to women, but in this case, it applied to a man. It had no less effect, but that man took that decision under those circumstances.
On comments in relation to the police, in these debates, we always tend to refer to their failures. There are failures—there is no question about that—but we should also pay credit to the thousands of police across the country who handle this difficult subject incredibly well. Many of them are family men; they know what is going on. It is an incredibly difficult set of circumstances for them as well as for the individual concerned.
More specifically on mobile communications, I made my maiden speech in the other place several decades ago on telecommunications. You can download everything off a phone, as long as it has not been specially hidden in some way or other, in a matter of minutes, certainly a matter of hours. You need to hold a phone for a long period of time only if you have serious criminals who know how to hide the contents of the entries on it. I implore people not to exaggerate the delays that one is talking about. We all use our phones as our livelihood, as the noble Baroness, Lady Chakrabarti, said, but downloading can be undertaken incredibly quickly.
In conclusion, I now want to take a different route in the conversation. In doing so, as I say, I do not underestimate the problems of society regarding sexual assault and rape victims. However, can the Minister clarify how this legislation or other legislation will deal with individuals who are falsely accused? There has been much discussion this evening about victims, but there are all too many such cases—not a substantial number, but there are many cases. For example, noble Lords can think of the number of people in this Palace who have been found not guilty when cases have gone to trial. What rights do those people who are falsely accused have in terms of seeking access to their accuser’s phone—or, rather, what rights do the police have in gaining access? It is all too easy for somebody to make a false accusation and then say they have lost their phone or delay handing it over. If you delay by 12 months, the records have disappeared in the vast majority of circumstances because the phone companies do not store them for more than that. There are a series of questions that need answering, and in the same way as we deal with genuine victims, we need to give consideration to those who are falsely accused and face many problems.
Lord Paddick (LD)
My Lords, I have Amendments 80, 90A, 94, 96, and 97 in this group. I was hoping that this group might be an example of this House at its best, where reasonable and reasoned amendments have been tabled, the Government have seen and responded positively to them and the Bill could be improved as a result. We clearly do not all agree on everything yet, but what all sides of the House—including the Government —appear to agree on is that the Bill as drafted and passed by the other place in respect of Chapter 3 on the extraction of information from electronic devices is not fit for purpose.
I shall take my amendments first. The House of Lords Constitution Committee raised concerns about victims of crime not coming forward or withdrawing from the criminal justice process because they may have to hand over personal and sensitive data, particularly victims and survivors of violence against women and girls, including rape. Although the draft code of practice published by the Government includes guidance that suggests refusal to provide a device or to agree to the extraction of information from it should not automatically result in the closure of any inquiry or complaint—particularly in light of the dramatic reduction in charges and prosecutions for rape over the past five years—the committee recommended that safeguards that protect victims’ rights to privacy and guard against digital extraction as a condition for continuing an investigation or prosecution should appear in the Bill rather than in a non-binding code of practice. Amendment 80 addresses the issue raised by the Constitution Committee. I am very grateful for the support of the noble Baroness, Lady Chakrabarti, in her powerful and compelling contribution.
This issue is partially addressed by government Amendment 93, which states that a person must not have been placed under undue pressure to provide the device or agree to the extraction of information from it and that a written notice must be provided which states that the person may refuse and that the investigation or inquiry will not be brought to an end merely because of that refusal. As well as being given the information in writing, the person should be told this orally and be reassured by the investigating officer. The government amendment does not go far enough.
I would go further and say that what people store on their electronic devices and share with each other has changed dramatically over the years. In particular, those from older generations may not be aware of the degree of openness with which explicit images, for example, are routinely shared using electronic devices, potentially leading prosecutors and jurors to draw unjustified conclusions about the behaviour of victims of rape or sexual assault in particular, whether they be male or female. Thankfully, most right-minded people no longer think a woman wearing a short skirt is “asking for it”, but there may be a way to go before the sharing of intimate photographs, for example, is dismissed in a similar way. That is why it is essential that victims are reassured in the way these amendments are intended to provide.
Amendment 90A makes a slightly different point and covers a similar area to that provided by Amendment 92 from the noble Lord, Lord Rosser, in relation to the extraction of information from devices used by children and adults without capacity. In relation to both groups of users, the noble Lord, Lord Rosser, suggests that a “registered social worker” give authority for the extraction of information, in the absence of a parent or guardian, whereas, in Clause 37(3)(b), the Government suggest that
“any responsible person who is aged 18 or over other than a relevant authorised person”
can give authority. Although police constables and members of staff appointed as authorised persons by chief constables would be excluded, police members of staff not authorised would not be excluded.
From my own professional experience, I know that it is often difficult to get hold of parents or guardians or to get them to co-operate, for example by attending a police station when their child is in custody. Equally, it is difficult to get hold of a social worker, particularly outside office hours, where there may be only one or a few social workers on call, dealing with the whole range of social work responsibilities—hence the “appropriate adults” scheme was established to look after the interests of children and vulnerable adults in custody. Appropriate adults are volunteers, recruited through local schemes, who are selected for their ability to act with independence from the police. Schemes take into account volunteers’ attitudes and motivations and any other roles that they may hold. They undergo training in the appropriate adults role and undergo a criminal record—DBS—check, although a criminal record will not necessarily act as an automatic bar.
Amendment 90A seeks to find a compromise between allowing any responsible person aged 18 or over, including potentially those employed by the police, to give authority for the handing over and extraction of data from a child’s or vulnerable adult’s electronic device and the registered social worker who is not always readily available, proposed by the noble Lord, Lord Rosser, in his Amendment 89.
I apologise—this is a long group. Amendment 96 seeks to increase the authority level for the extraction of information to a senior officer—at a rank where someone of that rank is normally on duty 24 hours a day, seven days a week, and readily available—who is independent of the investigation and can objectively assess whether the conditions that allow for the extraction of information have been met. There are precedents across policing: for example, custody officers or those authorising the deployment of covert surveillance, where someone independent of the investigation makes these kinds of decisions.
Amendment 97 is again intended to provide parliamentary scrutiny of guidance, as is Amendment 102, proposed by the noble Lord, Lord Rosser, to which I have added my name. I agree wholeheartedly with my noble friend Lord Beith’s Amendment 103 that the restrictions on the exercise of power to extract information in relation to confidential information must be in the Bill and not simply contained in regulations. I understand the reasons for wanting to exclude immigration officers from the list of authorised persons who can extract information from electronic devices, as proposed by the noble Lord, Lord Rosser, in his Amendment 107.
On immigration officers, we share the belief that there should be a firewall between criminal investigations and immigration enforcement, to the extent that details about the immigration status of victims should not be passed to the immigration authorities but should be dealt with elsewhere. I can envisage circumstances where immigration officers may need to download information from electronic devices—for example, to tackle people smuggling—although I accept what the noble Lord, Lord Rosser, said, which was that that should perhaps be a matter for the police rather than immigration officers.
I also accept the very important point made by the right reverend Prelate the Bishop of Bristol about the particular vulnerability of asylum seekers and their lack of knowledge of what the law allows and does not allow immigration officers to do, and how we need many more safeguards for asylum seekers in this provision. We also wholeheartedly agree with Amendment 106A regarding requests for third-party material. If I had not been overwhelmed by the volume of amendments added to the Bill every day, I would have added my name to that amendment.
We all in different ways have attempted to provide a more robust but workable regime around the extraction of information from mobile devices. The best way forward would be for all noble Lords, including the Minister, to withdraw their amendments, for the Minister and officials to meet with us before Report, and for officials to take the best from each of these amendments and those discussions, to produce a single set of amendments to which hopefully we can agree, rather than having to put down amendments on Report to the government amendments agreed in Committee. Taking the debate offline will save time on the Floor of the House on Report, when the agreed amendments could simply be nodded through. However, it appears that the Labour Opposition are content to allow the government amendments to be agreed at this stage, despite the clear differences between what they are proposing and the government amendments.
The noble Lord, Lord Hayward, made the important point, as we did on these Benches when this House debated the Domestic Abuse Bill, that these issues also affect men. The noble Lord also praised the police, who are in a very difficult position, which the noble Lord, Lord Anderson of Ipswich, alluded to, where they find themselves under pressure from the Crown Prosecution Service to go further than maybe even police officers may be comfortable going in terms of accessing personal information from victims’ phones. I repeat the question asked by the noble Lord: who speaks for the Crown Prosecution Service in this debate?
I studied politics at university, I was a very senior police officer for years, I ran for Mayor of London twice and I have been a member of your Lordships’ House for over eight years, but I still do not understand politics. Suffice it to say that, without Labour support, there is no point in dividing the Committee if the Government move their amendments formally at this stage.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I join the noble Lords, Lord Paddick and Lord Rosser, in apologising to the House for the length of my comments. It might assist the Committee if I begin with a brief overview of the provisions in Chapter 3 of Part 2 of the Bill. These provisions will establish, for the first time, a clear statutory basis for the extraction of information from digital devices with the agreement of the device user, and introduce safeguards to protect the privacy of victims, witnesses and others. I echo the comments of the noble Baroness, Lady Chakrabarti, that it is a vast intrusion. People’s lives are on their digital devices and I understand the sensitivity of that.
The current approach to the extraction of information from digital devices has been criticised as inconsistent and, as the noble Lord, Lord Rosser, says, as being tantamount to a digital strip search, where devices were 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 when it was not relevant to the offence under investigation. Clearly, that is unacceptable. This resulted in privacy and victims’ groups opposing this practice, particularly in cases where the device belongs to a victim or witness.
A consistent approach is clearly needed to ensure that requests for information are made with the victim’s right to privacy in mind and to ensure that all those agreeing to provide their sensitive personal data have all the information that they need to make that decision, including details on why their information is needed, how it will be used and their right to refuse to share that information without any negative consequences. This lack of consistency is of particular concern where the offences under investigation are those such as rape and serious sexual assault, where the victim is likely to be extremely distressed, as the noble Baroness, Lady Chakrabarti, said, and where rates of reporting and conviction are far too low.
Lord Hayward (Con)
I thank my noble friend for that answer, but I ask her to clarify her use of the words “where there is evidence”. In these circumstances, somebody who is accused will be making a counteraccusation, or a counterobservation, and therefore there may not be evidence. The evidence is likely to be on the phone in modern-day communications.
Baroness Fox of Buckley (Non-Afl)
To back that up, I point out that Oliver Mears, Samson Makele and Liam Allan were three young men who were nearly the victims of miscarriages of justice in those circumstances. If we say that a victim’s phone will be looked at, we are assuming that they are the victim, but it is an ambivalent point while somebody is innocent until proven guilty. We just have to be a little cautious about the language we use, because in one instance the police suppressed information—they had the phone details but did not put it forward—but in the others, it was on the phone that the proof was found. We just need balance. I do not want digital strip searches, but I do not want miscarriages of justice. People are squeamish about looking for evidence on people’s phones because they are presented as victims.
Baroness Williams of Trafford (Con)
Perhaps I should have said “alleged victim”; that goes to my noble friend’s point. Each case is different, but usually the remedy is through the court process and it is established where the perversion of justice might be taking place. But I thank my noble friend for his point about the alleged victim.
Lord Beith (LD)
I hope I am right, but surely there is nothing in the provisions being carried through now that would in any way relieve the prosecution of the obligation to disclose to the defence any material that came from this process and was potentially of assistance to the defence.
Baroness Williams of Trafford (Con)
The noble Lord is absolutely right, but I think my noble friend is making a point about where the tables are turned and the alleged victim is not the victim at all.
Baroness Chakrabarti (Lab)
In the sort of scenario being described, the suspect—not yet a defendant—will be able to say, “This was consensual and there is a text message that will demonstrate that.” Once that is asserted, that can be sought. It is not a justification for the kind of wholesale retention of mobile phones and trawling of data that people fear. I know that the hour is late and that the Minister wants to make progress, but I just want to put two questions before I sit down and let her finish her response.
First, I noticed while the Minister was speaking that the formulation used in my noble friend Lord Rosser’s Amendment 89 is “strict necessity”, whereas in the government amendments the test is of necessity—
Baroness Williams of Trafford (Con)
If the noble Baroness would bear with me, I am going to get on to that point about the read-across to other things. I hope that I have made it clear that I totally empathise with and get the point that my noble friend is making and that the remedy should be established through the court process.
Amendments 99 to 101 address a further point raised by the Victims’ Commissioner; namely, that she and other like commissioners have a statutory right to be consulted on the code of practice. This will give victims and witnesses further confidence that their concerns and priorities are represented in this code of practice.
Amendment 105 will ensure that the Scottish Ministers and the Northern Ireland Department of Justice are consulted before regulations are made to add, remove or amend an authority with devolved competence under Schedule 3.
Government Amendments 108 and 109 add to the list of authorised persons in Schedule 3. Amendment 108 will ensure that authorised persons in the Insolvency Service can exercise the Clause 36 power for the purposes of the prevention, detection or investigation of crime in pursuit of their functions, which include tackling financial wrongdoing. This was initially a mystery to me, but the Insolvency Service is an executive agency of the Department for Business, Energy and Industrial Strategy, hence the language used in the amendment, but it is important to note that the reference to an officer of BEIS is qualified because any individual falling within that description may exercise the powers only for the prevention, detection or investigation of crime. Schedule 3 already enables the Independent Office for Police Conduct to exercise the Clause 36 powers. Amendment 109 adds the equivalent bodies in Scotland and Northern Ireland.
As I have said, we believe that the government amendments address many of the points raised in amendments tabled by the noble Lords, Lord Rosser and Lord Paddick, but I will now turn to some of the other amendments in this group. Amendment 79 seeks to provide free independent legal advice to device users before they agree to the extraction of information from their device. Government Amendment 93 will ensure that device users are fully informed of the reasons that the information has been sought and how the information will be used. We do not think that provisions in this chapter are the right place to address what is a broader issue about the provision of legal advice to victims and witnesses given the wider impacts across the criminal justice system as a whole.
As regards Amendment 89, the noble Lord, Lord Rosser, highlighted the alternative drafting in respect of the test for the exercise of the Clause 36 powers. As the Bill is drafted, the authorised person must be satisfied that the exercise of the power is necessary and proportionate to achieve the relevant purpose. Under Amendment 89, this necessity test would become one of “strictly necessary”. The matter was also raised by the Victims’ Commissioner in briefings to noble Lords.
We understand that the reason for the concern is the strict necessity requirement in the Data Protection Act 2018. The powers in Clauses 36 and 39 must be read alongside existing obligations under the 2018 Act or the UK GDPR. In every case where authorised persons are extracting sensitive personal information from a device under these powers for a law enforcement purpose, such as preventing, detecting, investigating or prosecuting crime, they must continue to meet the strict necessity threshold in the Data Protection Act. It is therefore not necessary to duplicate that existing legal requirement in the Bill; it is there.
Lord Falconer of Thoroton (Lab)
I apologise for intervening. The Minister has been very helpful with this comprehensive response, but she said that the Government were not going to respond to the Delegated Powers Committee’s report until “the next stage”. It would be wholly unsatisfactory if they did not respond to that detailed report, which was issued weeks ago, until just before Report, because we have submitted a range of amendments. The House trusts the Minister, so could she do a bit better than “the next stage” and respond before Committee is over?
Baroness Williams of Trafford (Con)
My Lords, I will do my damnedest. I will take back the noble and learned Lord’s comments and see what is in the art of the possible. I can do no more than promise that, if he is happy with that—or rather, if he will accept it.
I will move on swiftly to Amendment 107, which seeks to remove immigration officers from Schedule 3, so that they can no longer exercise the powers in this Bill. Immigration officers play a vital role in protecting vulnerable people, in particular those who may be victims of trafficking, and it is important that they are able to obtain information that may be vital to these and other investigations. I therefore do not accept that immigration officers should not have access to these powers, subject to the same safeguards that apply to other authorised persons.
Finally, Amendment 106A relates to third-party material, an issue highlighted not just by the noble Lords, Lord Rosser and Lord Anderson, this evening, but by the Victims’ Commissioner, Dame Vera Baird. The amendment highlights a very important issue around the proportionality of requests for third-party material relevant to a victim. This material can be highly sensitive—for example, medical records. We agree that such material should only ever be sought where there is a reasonable line of inquiry, but we are aware that this is not always the case. There are examples where such requests cannot be justified, and this has a detrimental impact on the confidence of victims.
The noble Lord, Lord Rosser, also talked about written information given to victims. The police forces will use the digital processing notices developed by the NPCC for this purpose. The DPN, in layman’s terms, explains how the police extract the information, which information might be extracted, for how long it might be retained—that question was raised by the noble Baroness, Lady Chakrabarti, and answered in part by my noble friend Lord Hayward—and what happens to irrelevant material found on the device. The DPN makes clear that investigators must respect individual rights to privacy and must not go beyond reasonable lines of inquiry.
The Government wholeheartedly agree that there needs to be a consistent approach to ensure that requests for third-party material are made with the victim’s right to privacy in mind and to ensure that the victim is fully informed. This principle is key to a number of actions in the Government’s end-to-end rape review, which we published in June.
Moving on to the points made by the noble Lord, Lord Anderson, on Amendment 106A, our understanding is that the NPCC agrees in principle to the need for legislation but has not taken a view on a particular legislative solution. As I have indicated, this issue requires further examination, so I thank the noble Lord. I understand that the CPS similarly accepts the need for appropriate controls on access to third-party material.
The police and the CPS are working on new guidance for the investigators and victims which can be finalised after the Information Commissioner’s Office publishes its report on data in rape cases, which is due imminently. We will also consider whether a change is required to the Attorney-General’s guidelines. This will give us an opportunity to consider the broader landscape with regards to proportionality in requests for evidence from victims and whether further steps should then be taken. In terms of DPNs and involvement of the Victims’ Commissioner: yes, she has been involved with the development of the digital processing notices.
I apologise again for the length of my remarks to the Committee. The Committee has raised important issues in respect of the privacy of victims and witnesses, and it is very important we get the framework in the Bill right. I hope noble Lords will agree that we have listened to the concerns that additional safeguards should be set out in the Bill and will be content to agree the government amendments in lieu of their own. I say to the noble Lords, Lord Paddick and Lord Beith, that we will consider further their Amendments 97 and 103, and to the noble Lord, Lord Rosser, that we are very alive to the issues around third-party material. For now, I ask the noble Lord, Lord Rosser, to withdraw Amendment 79.
Lord Paddick (LD)
My Lords, very briefly: I really am grateful to the Minister. It is a very big group, and it is difficult to take in everything she said. But we have to be very careful. People will be reading the record of this debate. I think I heard the Minister say that the authorised person must explain that the investigation or inquiry will not be brought to an end if they refuse to hand over their device. That is not what it says on the face of the Bill. It says the person must be given a written notice.
These might have been many decades ago, but I know of situations where police officers shoved a piece of paper in front of somebody who was either a victim or a suspect—even somebody who could not read—and said something different from what was on the piece of paper. So I think we have to make it absolutely clear in the Bill, not just in the guidance or the codes of practice, that this must be explained, which was the meaning of one of my amendments.
The other thing I think I heard the Minister say—it is late—is that the authorised person must explain to the victim that refusal would have no negative consequences. That cannot possibly be right. For example, in a rape case where consent is an issue—where, perhaps, the defence argued that there were exchanges of messages or some such things that go to the heart of whether consent is an issue—and the victim refuses to hand over their device, there could be negative consequences when it comes to trial. Again, I understand that the Minister wants to be helpful and reassuring to victims, but we have to be absolutely clear what we are promising here, if it is being said on the record in this Committee.
Baroness Williams of Trafford (Con)
The hour is late. Because these things are so important, I will reiterate them in a letter to the noble Lord.
Lord Rosser (Lab)
First, I thank all noble Lords who have spoken in this debate. I also thank the Minister for her detailed response. I do not think she need apologise in any way for the length of it, since I am sure noble Lords would rather have a full response to the points that have been made than a shortened response. Like other noble Lords, I will read carefully in Hansard everything she had to say in reply to my amendments, as I am sure other noble Lords will in relation to their amendments. This part of the Bill has certainly been improved by the government amendments, which we welcome. But, equally, it can and should be further strengthened and improved.
There are a number of outstanding issues of concern, which I and other noble Lords have raised this evening and which I know Minister is aware of. I hope that she will agree to further discussions between now and Report on those issues of concern that have been raised in this debate. I know that the Minister is usually very open to holding such discussions—I see she is nodding—and will agree to that, as I say, between now and Report.
“(za) in a case where the authorised person proposes to exercise the power for a purpose within subsection (2)(a), the authorised person reasonably believes that information stored on the electronic device is relevant to a reasonable line of enquiry which is being, or is to be, pursued by an authorised person,”Member’s explanatory statement
This amendment has the effect that, to exercise the power in Clause 36(1) for the purposes of preventing etc crime, an authorised person must reasonably believe that information stored on an electronic device is relevant to a reasonable line of enquiry.
“(a) in a case where the authorised person proposes to exercise the power for a purpose within subsection (2)(b) or (c), the authorised person reasonably believes that information stored on the electronic device is relevant to that purpose,”Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 29, line 26.
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 29, line 26.
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 29, line 26.
Member’s explanatory statement
This amendment changes the definition of “adult” for the purposes of Chapter 3 of Part 2 so that it covers a person aged 18 or over.
Member’s explanatory statement
This amendment changes the definition of “child” for the purposes of Chapter 3 of Part 2 so that it covers a person aged under 18 rather than a person aged under 16.
““criminal offence” includes—(a) a service offence within the meaning of the Armed Forces Act 2006, and(b) an SDA offence within the meaning of the Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 (S.I. 2009/ 1059);”Member’s explanatory statement
This amendment clarifies that the references in Clause 36(3) to a criminal offence include a service offence under the Armed Forces Act 2006 or under any of the Acts that it replaces.
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford which inserts a new Clause after Clause 37.
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 30, line 8.
“(12) This section is subject to section (Requirements for voluntary provision and agreement)(requirements for voluntary provision and agreement).”Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford to insert a new Clause after Clause 37.
“Requirements for voluntary provision and agreement
(1) A person (“P”) is to be treated for the purposes of section 36 or 37 as having—(a) voluntarily provided an electronic device to an authorised person, and(b) agreed to the extraction of information from the device by an authorised person,only if the requirements of this section have been met.(2) An authorised person must not have placed undue pressure on P to provide the device or agree to the extraction of information from it.(3) An authorised person must have given P notice in writing—(a) specifying or describing the information that is sought,(b) specifying the reason why the information is sought,(c) specifying how the information will be dealt with once it has been extracted,(d) stating that P may refuse to provide the device or agree to the extraction of information from it, and(e) stating that the investigation or enquiry for the purposes of which the information is sought will not be brought to an end merely because P refuses to provide the device or agree to the extraction of information from it.(4) Subject to subsection (5), P must have confirmed in writing that P has—(a) voluntarily provided the device to an authorised person, and(b) agreed to the extraction of information from the device by an authorised person.(5) If P was unable to provide that confirmation in writing as a result of P’s physical impairment or lack of literacy skills—(a) P must have given that confirmation orally, and(b) an authorised person must have recorded P’s confirmation in writing.(6) If P’s confirmation was given in writing and in hard copy form, the authorised person must have given P a copy of that confirmation (in hard copy or electronic form).(7) If P’s confirmation was given orally, the authorised person must have given P a copy of the record of that confirmation (in hard copy or electronic form).” Member’s explanatory statement
This amendment sets out the requirements which must be met before a person is treated as having voluntarily provided an electronic device, and having agreed to the extraction of information from the device, for the purposes of Clauses 36 or 37.
“(1A) The code may make different provision for different purposes or areas.”Member’s explanatory statement
This amendment enables a code of practice under Clause 40 to make different provision for different purposes or areas.
“(ca) the Commissioner for Victims and Witnesses,(cb) the Domestic Abuse Commissioner,(cc) the Commission for Victims and Survivors for Northern Ireland,”Member’s explanatory statement
This amendment adds the persons and bodies mentioned to the list of persons who must be consulted in the preparation of a code of practice under Clause 40.
“(2A) Subsection (2)(cc) does not apply on or after the day appointed under Article 4(4) of the Victims and Survivors (Northern Ireland) Order 2006 (S.I. 2006/2953 (N.I. 17)) (power to revoke Article 4).”Member’s explanatory statement
This amendment provides for the duty to consult the Commission for Victims and Survivors for Northern Ireland to cease to apply if an order is made revoking the provision which creates that body.
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 34, line 19.
“(5A) The Secretary of State must consult the Scottish Ministers before making regulations under subsection (4) if and so far as the regulations make provision that would be within the legislative competence of the Scottish Parliament if it were contained in an Act of that Parliament. (5B) The Secretary of State must consult the Department of Justice in Northern Ireland before making regulations under subsection (4) if and so far as the regulations make provision that, if it were contained in an Act of the Northern Ireland Assembly—(a) would be within the legislative competence of that Assembly, and(b) would not require the consent of the Secretary of State.”Member’s explanatory statement
This amendment requires the Secretary of State to consult the Scottish Ministers or the Department of Justice in Northern Ireland before making regulations under Clause 42(4) which would be within the legislative competence of the Scottish Parliament or the Northern Ireland Assembly.