Data Protection and Digital Information Bill

Baroness Morgan of Cotes Excerpts

Committee stage
Monday 15th April 2024 Grand Committee

Moved by

[Baroness Morgan of Cotes]

137: After Clause 30, insert the following new Clause—
“Processing of data in relation to a case-file prepared by the police service for submission to the Crown Prosecution Service for a charging decisionIn the 2018 Act, after section 40 insert—“40A Processing of data in relation to a case-file prepared by the police service for submission to the Crown Prosecution Service for a charging decision(1) This section applies to a set of processing operations consisting of the preparation of a case-file by the police service for submission to the Crown Prosecution Service for a charging decision, the making of a charging decision by the Crown Prosecution Service, and the return of the case-file by the Crown Prosecution Service to the police service after a charging decision has been made.(2) The police service is not obliged to comply with the first data protection principle except insofar as that principle requires processing to be fair, or the third data protection principle, in preparing a case-file for submission to the Crown Prosecution Service for a charging decision. (3) The Crown Prosecution Service is not obliged to comply with the first data protection principle except insofar as that principle requires processing to be fair, or the third data protection principle, in making a charging decision on a case-file submitted for that purpose by the police service.(4) If the Crown Prosecution Service decides that a charge will not be pursued when it makes a charging decision on a case-file submitted for that purpose by the police service it must take all steps reasonably required to destroy and delete all copies of the case-file in its possession.(5) If the Crown Prosecution Service decides that a charge will be pursued when it makes a charging decision on a case-file submitted for that purpose by the police service it must return the case-file to the police service and take all steps reasonably required to destroy and delete all copies of the case-file in its possession.(6) Where the Crown Prosecution Service decides that a charge will be pursued when it makes a charging decision on a case-file submitted for that purpose by the police service and returns the case-file to the police service under subsection (5), the police service must comply with the first data protection principle and the third data protection principle in relation to any subsequent processing of the data contained in the case-file.(7) For the purposes of this section—(a) The police service means—(i) a constabulary maintained by virtue of an enactment; or(ii) subject to section 126 of the Criminal Justice and Public Order Act 1994 (prison staff not to be regarded as in police service), any other service whose members have the powers or privileges of a constable.(b) The preparation of, or preparing, a case-file by the police service for submission to the Crown Prosecution Service for a charging decision includes the submission of the file.(c) A case-file includes all information obtained by the police service for the purpose of preparing a case-file for submission to the Crown Prosecution Service for a charging decision.””Member's explanatory statement
This new Clause adjusts Section 40 of the Data Protection Act 2018 to exempt the police service and the Crown Prosecution Service from the first and third data protection principles contained within the 2018 Act so that they can share unredacted data with one another when making a charging decision.

[Baroness Morgan of Cotes (Con)]

My Lords, I shall speak to Amendment 137 in my name. I apologise to the Committee that I was unable to speak in the Second Reading debate on this Bill, which seems a long time ago now.

This is a discrete amendment designed to address an extremely burdensome and potentially unnecessary redaction exercise in relation to a situation where the police are preparing a case file for submission to the Crown Prosecution Service for a charging decision. The amendment was originally tabled in the House of Commons by Jane Hunt MP; both of us would like to thank the Police Federation of England and Wales for its assistance in briefing us in preparing the draft clause.

Perhaps it would be helpful to say by way of background that the existing data protection legislation requires our police forces to spend huge amounts of time and resources, first, in going through the information that has been gathered by investigating officers to identify every single item of personal data contained in that information; secondly, in deciding whether it is necessary or, in many cases, strictly necessary for the CPS to consider each item of personal data when making a charging decision; and, thirdly, in redacting every item of personal data that does not meet this test. I ask noble Lords to imagine, with things such as body cams being worn by the police, how much personal data is being collected these days every time officers respond to incidents. The police federation and the National Police Chiefs’ Council estimate that the national cost of this redaction exercise is approximately £5,642,900 per annum and that, since 1 January 2021, 365,000 policing hours have been consumed with this redaction exercise.

In his Budget last month, the Chancellor of the Exchequer asked for ideas to improve public sector productivity, so it will come as no surprise to the Minister that the Police Federation has rushed to submit this idea as one of those suggestions about how we might improve that productivity puzzle. I want to share one example of what this redaction requirement means in practice. This came from a detective constable in Suffolk who was attached to a regional crime unit. They said that the case they were involved with was

“a multi-million pound fraud offence from Suffolk with 115 victims. After a five year investigation two persons were charged (in Oct 2023) however, these charges would have been brought far sooner had the CPS not insisted that all used and unused material in the case be provided and redacted prior to the actual charges being brought. The redactions took six months to complete and at times both officers and civilian staff were deployed full time to accommodate”

this exercise. Due to the nature of the investigation, the victims in this case were elderly and some had, sadly, passed away over the years.

While the detective constable accepted that the investigation itself was lengthy, they

“were able to manage the expectations of the victims by providing routine updates on the progress of the case”.

However:

“It was more difficult to explain come early 2023 that documents in the case then had to be redacted before the CPS would allow us to charge the suspects. The fact that documents of varying sizes (some several pages in length) of the unused material had to be redacted prior to charge, when these documents may or not be served and ultimately would be served secondary to the used items is difficult to understand for the officers let alone explaining this to victims who are losing interest and respect for both the Police and CPS. Anyone would question why we were spending time redacting documents that MAY NEVER be served. It is … easy to say redact everything! In turn the additional months redacting affected the court process, delaying that also. Victims are questioning whether they will be alive to see”


the conclusion of the process. While the delay was

“not solely down to the redaction demands a more targeted redaction process after charge is more logical and cost effective for all”.

The redaction exercise is potentially unnecessary in the case of any given case file because the CPS decides to charge in approximately only 75% of cases. In the 25% of cases where the CPS decides not to charge, the unredacted file could simply be deleted by the CPS. Where the CPS decides to charge, the case file could then be returned to the police to carry out the redaction exercise before there is any risk of the file being disclosed to any person or body other than the CPS.

The simple and practical solution, as the Police Federation has put forward, is for the police to carry out the redaction exercise in relation to any given case file only after the CPS has taken the decision to charge. I should be clear that what is being proposed here does not remove any substantive protection of the personal data in question. It does not remove the obligation to review and redact the personal data contained in material in a case file; it simply provides for that review and redaction to be conducted by the police after, rather than before, a charging decision has been made by the CPS.

The law enforcement directive on which the relevant part of the Data Protection Act 2018 was based would have permitted this when that Act was passed. Part 3 of the 2018 Act implemented that directive and makes provision for data processing by “competent authorities”, including police forces and the Crown Prosecution Service, for defined “law enforcement purposes”. However, although recital 4 to the law enforcement directive emphasised:

“The free flow of personal data between competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences … should be facilitated while ensuring a high level of protection of personal data”,


Part 3 of the 2018 Act contains no provisions at all to facilitate the free flow of personal data between the police and the CPS.

The effect of the proposed new clause as set out in this amendment would be, first, to exempt the police from complying with the first data protection principle—except in so far as that principle requires processing to be fair—and from the third data protection principle, when the police are undertaking processing that consists of preparing for submission and submitting to the CPS a case file seeking a charging decision. Secondly, the amendment would exempt the CPS from the first and third data principles to the same extent when it makes that charging decision. Thirdly, it would require the CPS to return the case file to the police if a decision to charge is made, after which the data protection principles will apply in full to any subsequent processing.

I appreciate—particularly with the Minister here—that the Home Office is really in the driving seat here. We understand that the Home Office objections to this amendment seem to boil down to the belief that it will only partially resolve the problem, because the legal requirements around sharing of data are broader than just the first and third data principles, and that there are other relevant provisions not addressed by this drafting. It is of course absolutely open to the Minister and the Home Office to say that they support the broad principles of this draft clause, while suggesting that the drafting of this particular amendment should identify some other relevant provisions, and it would be helpful if they did that rather than just objecting to the whole amendment as put forward.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

I thank all noble Lords for their contributions. We acknowledge this particular problem and we are working to fix it. I would ask my noble friend to withdraw her amendment.

[Baroness Morgan of Cotes (Con)]

My Lords, I thank my noble friend the Minister for his response. I also thank the noble Lords, Lord Clement-Jones and Lord Bassam, for their support. I hope that those watching from outside will be heartened by what they have heard. I think there is general agreement that this problem should be simplified, and the burden taken off policing.

I am interested to hear about redaction but, with bodycams and images, as well as the mass amount of data on items such as mobile phones, it is complicated. My noble friend the Minister mentioned that the Home Office and the Information Commissioner’s Office were consulting with each other to reduce this pre-charge redaction burden. Perhaps he could write to me, or we could have a meeting to work it out. The challenge in all this is that we have a debate in which everybody agrees and then it all slows down again. Perhaps we can keep the momentum going by continuing discussions outside, involving the Police Federation as well. For now, I beg leave to withdraw the amendment.

Amendment 137 withdrawn.