Victims and Prisoners Bill

Baroness Morgan of Cotes Excerpts

Report stage
Tuesday 23rd April 2024 Lords Chamber

[Baroness Morgan of Cotes (Con)]

My Lords, I shall speak to Amendments 87A, 88A and 158, which, as the Minister has already said, discuss additional protections for victims of rape who are subject to requests for third-party material. I thank my noble friend Lady Finn, and the noble Baroness, Lady Brinton, for their support for these amendments, which I know are also supported by my noble friend Lady Newlove, the Victims’ Commissioner, and across the House as well. I am sorry that I was not able to speak to them myself in person—I am very grateful to those who did —in Committee due to a family emergency.

The Government argue that their amendment covering these issues sets out clearly in law that the police should request third-party materials only if they are necessary and proportionate to a reasonable line of inquiry. However, these amendments do no more than reinforce existing legal provisions that are already not adhered to. No additional safeguards or protections are being offered. This will do nothing to change policing culture around excessive requests because it will merely reaffirm what already exists in law rather than encouraging operational change. I listened very carefully to what the Minister had to say. Although I do not necessarily intend formally to move these amendments this evening, I am concerned to hear that the third-party material we are talking about is not going to be treated as sensitively as mobile phone data because the material we are talking about could be medical material, school information or even social services records. It may be created by a third party, but it is all sensitive data about the victim of a rape or a serious sexual assault. I think it is a mistake not to have entertained more the protections that we are talking about in these amendments.

Just last week, the Home Office published its report of a case file review of police requests for third-party material in rape cases. The findings are truly shocking, and I encourage anybody who does not believe this is an issue to read that report in full. I think we should consider the findings regarding each of the tests that the police are supposed to apply when making requests for this material. First, is it necessary? In the review of 342 third-party material requests, only 176 requests had a recorded rationale, leaving 49% of requests without an explanation for the necessity of that request. Is the request proportionate? The report found that nearly two-thirds of requests did not contain any parameters, such as a timeframe, to limit the amount of information about the victim being requested. Is the request following a reasonable line of inquiry? Nearly one-quarter of rationales given for the third-party material request were generic or not specific to the case. If the reasoning for making a third-party material request is speculative, it is unlikely to be necessary to make the request in pursuit of a line of inquiry.

We know there is a problem, but there is also a solution. As we have already heard, there is a well-developed framework within the Police, Crime, Sentencing and Courts Act 2022. That framework applies to requests for digital data held on phones, and it sets out that requests for victims’ digital data must receive the consent of victims. If consent is not received, this must not lead to the termination of the police investigation. One of the most serious aspects of this is that where the victim does not give consent, that is almost used as a reason to drop the investigation, which is devastating for the victim concerned. In that Act, there are strong safeguards offering key protections for vulnerable victims. That is what these amendments seek to do: to amend the wording in the Bill to mirror that in the Police, Crime, Sentencing and Courts Act.

Anecdotal evidence from victim advocates indicates that, since that Act was introduced, they have seen fewer requests, as well as requests being more appropriate in scope, because of that framework. I do not understand why the Government will not adopt that framework for third-party material requests. It does not make any sense to have two different regimes. Often, this material is sought in tandem. It would be better for victims, and for the police, for there to be one regime.

Victims of crime should not be forced to choose between their own privacy and their right to justice. I hope the Government will look favourably on these amendments, if not now, then in the future.

I want briefly to pay tribute to the work of my noble friend Lady Bertin for Amendments 87, 88, 89 and 94. She is absolutely right that victims and survivors of sexual violence should never have to choose between seeking justice and accessing therapy and support. I thank all those across the House who have supported her in making that case, and my noble friend the Minister for listening.

[Baroness Newlove (Con)]

My Lords, I am using IT in this speech—trying to get trendy, as my daughters tell me to do. My apologies, as I have sausage fingers with arthritis.

First, I would like to speak to Amendment 85. In April 2018, I published a report highlighting the discrepancies between the treatment of those victims whose perpetrator was serving a sentence in prison and those whose perpetrator had been detained under the Mental Health Act. I pressed the Government for change. Dame Vera Baird, who followed me, also took up the cudgels on behalf of this too-often overlooked group of victims. Our argument was that the grief and trauma caused by serious violence and sexual crime was no less if the perpetrator was in a hospital rather than a prison. They all deserve support. They all deserve to have their voices heard.

When I returned to the office last October, there remained unfinished business. Victims of patients detained in hospitals still could not submit a victim’s personal statement to the tribunal when discharge was being considered. Neither could they attend the hearing to present. I am therefore delighted that, on this occasion, the Government and my noble friend the Minister have listened and acted. I welcome the government amendment, which will ensure that, at long last, there will be parity of treatment for this group of victims. I again thank the Minister and his team for bringing this about. I feel sure that it will be welcomed across the House.

I support of Amendments 87A and 88A, which would, if adopted, increase protections for victims of rape who are subject to requests for third-party material. Before turning to those amendments, I thank the Government for their thoughtful consideration of amendments tabled in Committee by my noble friend Lady Bertin. These sought to provide additional protections for victims around notes of therapy, measures which I truly support. I am delighted that the Government have agreed to change the legal threshold for this material, and I hope that they may be persuaded to provide greater protections around other forms of third-party material.

I turn now to Amendments 87A and 88A. The Government argue that their own amendment to the Bill will stop demands for personal and private information from rape complainants but, as they stated in Committee, their clauses do nothing more than consolidate the current legal framework—a framework which has not been followed. How can things change? The Home Office report to which my noble friend Lady Morgan already referred found that, in almost a quarter of these cases, credibility was specifically cited as the reason for requesting third-party material. While credibility can sometimes form a reasonable line of inquiry in investigations, it is most often used in rape investigations. That is because, in rape cases, it is the victim who is being investigated to see if they are believable or credible, not the accused. In no other crime type is the credibility of the victim so scrutinised. Victims must be properly protected from these intrusive demands, as they have been by the Government’s measures in the PCSC Act, which successfully curbed the ambiguous practice of digital download from complainants’ phones—the digital strip-search, as it was known. The Government could, as it did there, introduce a new regime that empowers and protects victims, but instead they are merely reiterating the current framework and hoping that guidance will elicit change. It will not. The officers making the requests referred to in the Home Office report were operating under the existing framework —the same framework that the government clauses will consolidate in this Bill.

The Government point to the defendant’s right to a fair trial as the reason why Amendments 87A and 88A cannot be adopted. But there are other legal mechanisms available to the police and prosecution to obtain this material if the complainant does not agree to access, so the right to a fair trial is not impacted. Additionally, these amendments would provide consistency with the framework around digital material. This consistency is good for the police, and it is so good for the victims.

I urge support for Amendment 87A and 88A, which, along with the Government’s own measure on digital material, and now on notes of therapy, make a significant difference to the victims of this horrendous crime. I also support Amendments 77 and 78, which both seek to provide rape victims with legal advocacy when their right to privacy is engaged by the system. The Government have promised on numerous occasions to explore this option, but they have yet to do so in a meaningful way. It is being considered as a recommendation to the Government by the Law Commission, precisely because of the huge invasions of privacy that victims experience if they report a rape. I urge noble Lords to support these measures.