Policing and Crime Bill

Baroness Cohen of Pimlico Excerpts

Report: 3rd sitting (Hansard): House of Lords
Monday 12th December 2016 Lords Chamber

[Viscount Hailsham]

I could not agree more with the noble Lord. I agree with him as I agreed with him on the previous debate. We are dealing here with the possibility of profound injustice and we should guard against it.

[Baroness Cohen of Pimlico (Lab)]

My Lords, my name is also attached to this amendment, but I would not normally have spoken given that the noble Lord, Lord Wigley, and the noble Baroness, Lady Howe, were such distinguished proponents of it. At the moment there is a choice of injustices. Perhaps we should have provided—and I should be glad to provide at Third Reading—a clause saying that a judge may decide whether the name should be disclosed. This is, however, also a modern offence. In the old days it might not have mattered very much if you disclosed only the name of the accuser. These days, the perpetrator has no trouble at all, because of the spread of social media, and these cases are more frequent.

One reads of cases all the time and I want to disentangle this from the issue of rape. It is not entirely about rape. It is about being knifed in the street or pushed under a Tube train by a perfect stranger, as I am sure we have all read about, and being terrified thereafter in case he or she comes and does it again. Therefore, I would be very grateful if the Minister would understand the strength of feeling and the injustice being done. If we can put in a clause at Third Reading offering the possibility of review by a judge if necessary, I would be glad to do so.

[Baroness Chisholm of Owlpen]

My Lords, as the noble Lord, Lord Wigley, has explained, this amendment is designed to strengthen the protection for the victims and witnesses of a sexual or violent assault by a stranger. I sympathise with this objective but, as I indicated in Committee, there are difficulties. I am grateful to the noble Lord for taking on board the points I made in response to his earlier amendment on this issue. He has now come forward with a substantially revised amendment. I fear, however, that this serves only to highlight again the challenges of legislating in this area.

It is vital that the criminal justice system supports and protects victims and witnesses, particularly victims of sexual offences, who are especially vulnerable. As I stated in Committee, there are already a number of means whereby those at risk of further harm, or who are deemed to be intimidated, can be safeguarded. I shall not repeat these measures now, other than to say that there is a wide range of options available for their protection. To intimidate a witness is a very serious criminal offence.

Of course, the right to a fair trial is a cornerstone of our criminal justice system. The noble Lord, Lord Wigley, has rightly acknowledged this in the revised amendment before us today. However, to say that the identity of a victim or a witness may be withheld from the defendant except where to do so would compromise the defendant’s right to a fair trial is almost always a contradiction in terms. As my noble friend Lord Hailsham said, fundamental to a fair trial is the right of the accused to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him. The accused cannot be expected to prepare a proper defence if he does not know who is accusing him of the alleged crime, and without that there can be no fair trial.

In exceptional circumstances, there is already provision for anonymity of victims or witnesses from the accused, through a witness anonymity order. A number of conditions must be met for this to apply, including that it would protect the safety of the witness or another person, that it is in the interests of justice for the witness to testify and the witness would not testify if the order were not made, and that it would be consistent with the defendant receiving a fair trial. It is an exceptional measure of last resort. This means that in the minority of cases where those accused of violent or sexual assault are strangers, the court can decide to grant victim or witness anonymity, provided these other conditions are met.

--- Later in debate ---

[Baroness Chisholm of Owlpen]

The problem is that, as I said earlier, it is an exceptional measure of last resort. This means that, in the minority of cases where those accused of violent or sexual assault are strangers, the court can decide to grant victims and witnesses anonymity, provided that the conditions are met.

While I cannot for these reasons support the noble Lord’s amendment, he has raised an important point about the consistency of practice both across and within police forces about the disclosure of the address and telephone number of a victim. Crown Prosecution Service policy on prosecuting cases of rape clearly states that addresses of victims and witnesses should not be disclosed to the defendant during court proceedings. The same is true of victims’ or witnesses’ telephone numbers or email addresses. However, we do not know how aware the police are of this policy, so we will explore with the College of Policing whether it would be appropriate for additional guidance to be given to police forces to ensure that this practice is universally followed.

[Baroness Cohen of Pimlico]

Before the Minister sits down, I say that in the case with which the noble Lord, Lord Wigley, and I are most familiar, the police disclosed the victim’s name quite automatically to the perpetrator about 20 minutes after they had arrested him on the evidence of two policemen. It is all very well to say that you can wait to have a court make a decision, but a policeman made a decision at the earliest possible stage, and that is the issue that the noble Lord, Lord Wigley, and I are attempting to address.

[Baroness Chisholm of Owlpen]

I am sure the noble Baroness will understand that I cannot go into individual cases. CPS policy on prosecuting cases of rape clearly states that witnesses’ addresses should not be disclosed to the defendant unless already known. The CPS does not disclose the addresses, email addresses or phone numbers of victims or witnesses in any case unless already known. That is why we are looking at ways to ensure that this approach is similarly applied by police forces.

While the amendment is well intentioned, for the reasons I have given, I do not consider that it will help advance the noble Lord’s cause. He has alighted upon an important issue regarding the consistency of practice adopted by criminal justice agencies in relation to the disclosure of a vulnerable victim’s address or other contact details, and I am ready to explore further how this might best be addressed. On that basis, I hope the noble Lord will feel able to withdraw his amendment.

Policing and Crime Bill

Baroness Cohen of Pimlico Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 16th November 2016 Lords Chamber

That cannot be right. That is why I am supporting the amendment. We are putting these victims at terrible risk of further harm and stress, often months after the crime is committed. We know that some women have taken the drastic measure of changing their name, moving house and taking their name off the electoral register, to try to keep safe. If the amendment became law, a police officer would not disclose the identity of a victim where the perpetrator is a stranger, which would protect these victims.

[Baroness Cohen of Pimlico (Lab)]

I too support the amendment. M, as referred to in my noble friend’s speech, is a family connection—a very capable young woman, as can be seen from the fact that she wrote right round the Metropolitan Police to discover that there was indeed no policy about whether victims’ details were handed over. It was done quite routinely, on admittance, as it were, in a case in which two off-duty police officers had actually rescued her. This seems a most peculiar omission.

I should also point out that the new clause as drafted does not just cover rape or attempted rape, but stranger danger of other sorts. Many years ago I was the victim of an attempted mugging. I got the number of the chap’s motor bike, reported it to the police and offered to give evidence. In fact he was convicted, but the police kindly said that they did not need to invite me, because he had pleaded guilty to that and a multitude of other offences. But he had issued the traditional snarling claim that he knew where I lived and would come and get me if I spoke up.

At that time it was possible to feel fairly secure and confident, having a Jewish name—Cohen—that was extremely common in London, that if I removed my name from the London telephone book, probably nobody would find me. This is not the case any more. M is a young woman with her career to make, and necessarily has a Facebook presence. He can find her if he needs to—and this is a case in which there is considerable doubt about the chap’s mental capacity.

There are lots of cases like this that are not rape; there is also assault. As a lawyer, I am conscious that the proposed new clause may be too broadly drafted. I ask the Government to get parliamentary counsel on to it to ensure that it can be adopted. If not, I will return to the issue on Report, no doubt with the support of others. This seems to me an anomaly caused by just a lack of process and anybody thinking about it, and which renders ridiculous our attempts to protect victims of stranger danger.

[Lord Kennedy of Southwark]

My Lords, Amendment 228C in the names of the noble Lords, Lord Wigley and Lord Ponsonby, and the noble Baroness, Lady Howe, seeks to insert a new clause into the Bill. As we have heard, its aim is to provide additional protection for victims or witnesses of a serious sexual offence, using the test of whether it is reasonable to assume that a disclosure of the person’s identity,

“would put the victim or witness at risk of further harm”.

It is right to include the rights of victims and witnesses in primary legislation where possible, and this is what the amendment seeks to do. Both victims and witnesses of serious offences can be very traumatised by what has happened to them or what they have witnessed. The disclosure of the name of the victim or witness to the person alleged to have committed the offence could put them at risk of further harm, as we have heard, or of fear of further harm. That, in itself, can cause additional stress and trauma for the victim or witness. Therefore, this amendment would place a specific duty on the police, when considering releasing the names of victims or witnesses to the accused person, to take into account the matters listed in new subsections (2) and (3) of the proposed new clause. That would be a sensible and welcome move, and I hope the noble Baroness will respond positively to the amendment.

I fully endorse the comments of all those who have spoken to the amendment. I was particularly surprised to hear my noble friends Lord Ponsonby and Lady Cohen say that the police have no idea what the policy is in this area. I am amazed by that. I certainly fully endorse the amendment.

Serious Crime Bill [HL]

Baroness Cohen of Pimlico Excerpts

Tuesday 28th October 2014 Lords Chamber

[Lord Black of Brentwood (Con)]

My Lords, I declare an interest in this subject as executive director of the Telegraph Media Group and draw attention to my other media interests listed in the register.

I very much welcome this amendment. Although I have some concerns about aspects of the drafting, the noble Lord, Lord Strasburger, is to be congratulated on shining a spotlight on an incredibly serious and troubling issue arising from a piece of legislation that is now looking increasingly arcane. I fundamentally agree with him that we cannot wait for a permanent solution to this.

It is an issue that should concern every reporter in the UK and every citizen because of the impact on press freedom and the quality of our democracy. It is also an issue that has a resonance beyond our shores, which should be a real worry to us, because what we are doing in the United Kingdom is sending an authoritarian message to the rest of the world that it is all right for police forces or other public authorities to track down the confidential sources of journalists.

I do not need to dwell on the importance of confidential sources of information. It was put best in the case of Goodwin v United Kingdom in the European Court of Human Rights back in 1996:

“Without ... protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result, the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected”.

That is absolutely right. As we heard, the use of confidential sources is vital for whistleblowing and investigative journalism, but it is also crucial for day-to-day reporting on matters of public interest. In a democratic society, people need to be able to talk to the media about current debates without fear of reprisal or retribution. The alternative is sterile political and public debate, with a profound impact on the substance of our character and democracy. That is what will happen unless the chilling impact of this out-of-date legislation is not reversed.

It is a matter of regret to me to have to ask why we should have been surprised by such recent revelations. The Newspaper Society, representing Britain’s regional press, and the Society of Editors made clear during the passage of RIPA back in 2000 that its terms would inevitably lead to an erosion of the confidentiality of sources because they could so often be easily identified by information obtained under the new powers by a wide range of specified organisations. The newspaper industry at the time suggested that the number of organisations able to exercise RIPA powers should be limited, that the ground for the use of those powers should also be strictly limited to the most senior personnel and that all applications for use of such power should be subjected to prior judicial scrutiny, especially to protect confidential sources. The Act as it arrived on the statute book and various codes since then clearly did not provide adequate safeguards in any way.

Over the years since then, I have heard anecdotal evidence of the problems, often from local newspaper editors voicing their concerns, often about attempts to trace the source of leaks of council information by local authorities using RIPA powers of surveillance and access to telephone records. Occasionally, a case of this arose in the public domain. Back in 2010, the Derby Telegraph reported on how the local authority there dispatched two officers to a local Starbucks to spy on a reporter who had been seen talking to current and former council employees. That council used RIPA powers to do that because they give local authorities the right to watch and record people covertly. Just think about the disastrous impact on local press reporting of local authorities if such sources of information dried up. More importantly, we need to think about the impact on local people and democracy. Incompetence, waste and corruption in local government would remain uncovered and unpunished. It is the ordinary people who pay the bills for that who would really suffer.

As the noble Lord said, we are only now beginning to see the full extent of this problem, partly as the result of the work of the Mail on Sunday, which helped uncover this abuse through a sheer stroke of luck followed up by a brilliant piece of investigative journalism. My real concern is that we may be seeing only the tip of the iceberg. As the noble Lord, Lord Strasburger, said, we just have no idea about the extent of the abuse. Other examples that I have heard are extremely troubling. I draw noble Lords’ attention to the disturbing case of Sally Murrer, recently highlighted in Press Gazette. Thames Valley Police applied to a court to bug the conversations of this lady but did not tell the court that she was a journalist when it did so. Recently, that force had to admit that it used RIPA powers to bug the car of her alleged police source back in 2006. If either the law or a statutory code had forced police to make that clear, it would—as Gavin Millar, her QC, said—have ensured that the authorising authority had the chance to use the,

“correct, and very strict, legal test for overriding journalistic source protection”.

He also made the point that the use of the Act in this way, which he described as widespread, is almost certainly completely illegal under European law.

Mention of Europe leads me to a very brief point. I said earlier that I am anxious about the impact of this issue beyond our shores. It does not take a great deal of imagination to see how a Government in a Commonwealth country might look at how the law is utilised here and deploy something similar in a turbo-charged manner in their own country. That is already causing considerable concerns among world press freedom organisations. Ronald Koven, the acting director of the World Press Freedom Committee, wrote to me and put it this way:

“Police the world over have repeatedly shown they cannot be trusted to exercise needed self-restraint and their zeal must be contained by independent judicial supervision. That has unhappily proven to be the case in Britain as well ... It is the view of the World Press Freedom Committee that the law should be amended to impose appropriate and effective judicial oversight”.

We need to be mindful of the way that this issue feeds into debates in Europe, too. There, the European Newspaper Publishers Association—on whose board I sit—made representations on protection of journalistic sources in respect of very similar EU legislation on access to communications content, communications data and surveillance. In the context of the issue that this amendment highlights, those concerns also need to be treated with the utmost seriousness if we are not to end up in exactly the same position in a few years’ time.

I am aware that the noble Lord produced this as a probing amendment and of course he is absolutely right to do so. I support the principles behind it—particularly that of prior judicial authorisation—but, as I said, I have some concerns about the detail, because I do not believe that it would actually deliver the extremely high threshold that should be needed for police or other authorities to be able to access journalists’ sources. I also do not think that judicial authorisation would necessarily apply in all the cases where RIPA powers can be deployed. It is a very good start, but further thought needs to be given in those areas. Of course, there are now a number of inquiries into this issue and the abuse of RIPA. I believe the impact on press freedom and on the quality of our democracy should be guiding features of those inquiries. I hope that my noble friend will listen to the strength of feeling and that—either in this House or another place—the Government will come back with their own amendment to deal with the issue that the noble Lord’s amendment highlighted so importantly today and which, in a free society, we should treat with the utmost seriousness.

[Baroness Cohen of Pimlico (Lab)]

My Lords, I also rise to support the amendment. The noble Lord, Lord Strasburger, spoke about the need to align PACE and RIPA and thereby to protect journalism. I agree that journalistic material needs to be protected from police officers using RIPA provisions, which were designed originally to get at something completely different. It is equally important, though very much less a subject of public debate, to protect items subject to legal prejudice, which this amendment, if it became law, would do.

I am a solicitor—it is probably my only declarable interest—and, like all solicitors, a solicitor of the Supreme Court, which I would like everybody to remember as a statement. I have been consulted by people anxious about fraud, bribery and commercial organisations who are naturally seeking a safe and effective way of making their concerns known. They are whistleblowers. Any solicitor would make a file note, and it is not a happy thought that a police officer, solely on his own authority, could seek access to that note and thus to the relationship of confidentiality with our clients that we lawyers have been brought up to believe is a vital foundation.

It may also fall to any practising solicitor to be consulted by someone seeking, as for example in the Jimmy Savile saga, to allege that serving police officers were complicit in abuse, and then to be approached by a police officer, perhaps seeking to head off trouble at the pass, being able to access information via RIPA without ever having to explain to a judge what evil it was he was specifically seeking to expose. I accept—of course, I do—that client confidentiality can and must be breached in extremis and with the issue of a warrant or authorisation by a judge, but it should not be possible for police officers to avoid the PACE rules or to go round them and get at the principle of client confidentiality by using legislation that was never intended to do that.

We solicitors are all members of the Supreme Court. We are bound to assist it, but we are bound to assist judges. We are not meant to be a branch of the Executive and, as such, we ought to be subject—and all legally applicable documents ought to be subject—to the power of the courts and not to the power of the police, or indeed, if push came to shove, to the Secretary of State. I commend the amendment.

[Lord Thomas of Gresford (LD)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Cohen of Pimlico, and to make the same point from the point of view of the Bar. I do not think that legal professional privilege is fully understood. Certainly in the criminal field, there may be a perception that defence barristers get together with their client and cook up some story, and if only the police could have access to the instructions of the barrister or the solicitor, all would be revealed. The contrary is the truth.

If I can bowdlerise a little bit, when I see a client for the first time, I say to him, “Will you please not tell me any bull? I want to know the truth. Unless you tell me the truth, I am not able to help you. I am not able to give you proper advice, just as though you went to the doctor saying that you had a pain in your toe when in fact the pain was in your head. Tell me the truth”. It very often happens that the client will then come out with a story which you can then check against the other evidence in the prosecution case, and go back to him and say, “You did tell me a lot of bull. I really need to know the truth if I am to represent you properly”. He will change his story in some instances and will tell the truth. With that truth, you can win cases or you can mitigate the just punishment that will ultimately be imposed on him and advise him to plead guilty if that is the right thing to do.

It is an extremely delicate relationship between the client and the barrister or solicitor—I have been in the solicitor position as well—that many people do not understand. A judge understands it. If a judge, on a proper application being made to him, decides that it is in the public interest that this relationship should be investigated, and if there is something about the way in which the case is being conducted that gives rise to suspicion so that prying into the papers of the defence is an appropriate thing to do, the judge from all his experience—all judges will have been through the mill themselves and will know precisely how these things should be approached—will give the ultimate permission for the file or the papers to be looked at. Generally speaking, though, he will not do so, and it is quite wrong if the police use RIPA powers—legislation that was intended for a completely different purpose—to break into that very delicate relationship and break it up.

That is the importance of the amendment moved by the noble Lord, Lord Strasburger, and I support it entirely.