Victims and Prisoners Bill

Debate between Baroness Newlove and Lord Hampton

Committee stage
Wednesday 7th February 2024 Lords Chamber

[Lord Hampton (CB)]

My Lords, I will speak briefly to my Amendments 103 and 103A, which the noble Baroness, Lady Thornton, has already talked about. I am grateful for the support of the noble Lords, Lord Ponsonby of Shulbrede and Lord Russell of Liverpool.

These amendments would simply add the Children’s Commissioner as a statutory consultee for the codes of practice alongside the Information Commissioner, the Commissioner for Victims and Witnesses and the domestic abuse commissioner. The Minister might well say that this is covered by the phrase

“such other persons as the Secretary of State considers appropriate”.

The noble and learned Lord, Lord Bellamy, pointed out proudly earlier in our debates that children are mentioned in the Bill three times; this is an opportunity to add them two more times, making five in all. By simply adding the Children’s Commissioner to the list of names in the Bill, the Government can, with no effort or watering down, show the importance of children as victims. I look forward to the Minister’s answer.

[Baroness Newlove (Con)]

My Lords, I support most of the amendments in this group, which is quite lengthy. One of my key priorities for the Bill is that it delivers greater safeguards to protect the privacy of victims of sexual violence. That is why I am speaking in support of these valuable amendments.

The Government’s rape review was in response to the concern at collapsing charging and prosecution numbers. The review found that most victims did not see a charge or reach court, and one in two victims withdrew from the rape investigations. Privacy concerns led many to withdraw. It had become standard practice for victims who reported to the police to be asked to hand over large quantities of private information. This included digital data from mobile phones, but also what is known as “third-party materials”—personal information about an individual held by organisations.

“Third-party materials” is a seemingly innocuous phrase, but it belies a greater meaning and significance. In reality, it means education records, medical files, social services records or therapy notes. These can all be requested as part of an investigation—an investigation that focuses on the victim, not the accused. I quote one sexual violence survivor:

“I felt anxious, confused and infuriated. I was under far deeper investigation than the rapist (who I have no doubt would have had questionable material had they searched the same). They had refused to take physical evidence—my clothing from the night of the attack—but wanted to investigate my private life. I asked them to justify each request but they could not, so I did not provide it”.


This material often includes documents that the victim may have never seen. These can be introduced at court and used to attack the victim. As one victim told me:

“I had good support for the criminal court. Good preparation. But it made me angry. I was made out to be a liar and it made me feel low. That came as a surprise—it was dreadful. I wasn’t expecting it. Afterwards I was very upset and couldn’t control myself. I started having dreams and flash backs. I was asked about things in my records that I knew nothing about—my past and I didn’t know why”.


In effect, victims are being forced to choose between seeking justice and their right to a private life. That is not a choice; that is an ultimatum. The Government made reassuring noises when they announced an amendment to the Bill over the summer. They promised better protection for rape victims from invasive record requests, but I am concerned that their proposals do not offer the level of protection that we are calling for or that victims need. We need provisions that will offer the protection required. For this reason I am in full support of Amendments 101, 102 and 173, tabled by my noble friend Lady Morgan, which my noble friend Lady Finn eloquently addressed today.

Some noble Lords may recognise these provisions: my predecessor as Victims’ Commissioner, Dame Vera Baird, secured similar amendments to the Police, Crime, Sentencing and Courts Act 2022. These were designed to protect rape victims from overintrusive and excessive police requests for personal mobile data downloads. This amendment not only provides greater support for victims but provides police with a consistent approach to handling requests for digital material and third-party material. Their job is difficult enough as it is, without lawmakers adding to the complexity of their work by placing two very different processes and criteria side by side.

I am also pleased to support Amendments 78 and 79, which call for free legal representation for victims of rape and sexual assault to ensure that their privacy is also protected. Requests for information are often a clear violation of our human right to privacy—our Article 8 rights, to use the legal jargon. My predecessor argued that there should be a right in law for victims to be given free legal representation where these rights are threatened. I wholeheartedly and absolutely agree. Put simply, a lawyer advises and makes representations on the victims’ behalf, cooling police requests for data and improving victim confidence in proceedings. In their rape review, the Government committed to consider a pilot, and I will push hard to get this up and running.

I also support Amendment 115, which if enacted would enable rape victims to seek therapy to help them cope and recover. I am always concerned when I meet victims of rape who tell me they have declined to seek counselling. They are rightly told that notes from counselling sessions might be disclosed to the court. Worse, they might be disclosed to the defendant: intimate, personal details shared with their abuser. That cannot be right. As a result, many victims will wait until the trial is complete before seeking therapy. This can mean years without support, suffering alone and in torment. Some may take their life. It is no surprise that many withdraw so they can access counselling sooner. That is no good for the victim, no good for justice and no good for society.

Currently, notes are routinely requested and can end up being the subject of cross-examination at court. As one survivor said when appearing on “Newsnight”:

“The defence said ‘Are you truthful?’ and when I said yes, she said—‘Well, you’re not exactly truthful with your husband are you? Would you like me to read your therapy notes out about what you’re currently discussing with your therapist?’ I said no. It was like a physical punch because I wasn’t expecting it. That someone would bring that up in a courtroom, about my current sex life. How, how is that relevant? It was violating—like another trauma”.


That is why I want to see records of therapy and counselling received by victims of sexual violence made subject to a form of privilege that would make them exempt from disclosure. It would not be an absolute privilege: judges could waive it if they considered a substantial value to the notes being disclosed. It is a model that balances the defendant’s right to a fair trial with a victim’s right to access counselling. We know it works. As my noble friend mentioned, it has been in place for many years in Australia, where the criminal justice system is comparable to ours. It is about a fairer model, and that is what the Bill needs to deliver: a level playing field for victims.

I also support Amendment 106. Like many others in this Committee, no doubt, I was appalled to hear that malicious individuals are weaponising legislation designed and put in place to protect vulnerable children. As we have already heard, if an individual makes a malicious complaint about someone to the police, the police can act to remove that record.

Victims and Prisoners Bill

Debate between Baroness Newlove and Lord Hampton

Committee stage
Monday 5th February 2024 Lords Chamber

[Baroness Newlove (Con)]

My Lords, I add my support to Amendments 30, 31, 37 to 46, and 53. Compliance with the victims’ code goes straight to the heart of what the Bill is about. This year, the code will have been on the statute book for 20 years. Its creation was based on good intentions, and the many entitlements, if properly implemented, would deliver the support and treatment deserved. On that we all agreed.

As discussed in the previous debate, the same piece of legislation sought to underpin the code by setting up the role of an independent Victims’ Commissioner, whose role is to

“review the operation of the code”.

Twenty years later, I think we all agree that the expectations created by that piece of legislation have never been fully met. Victim Support has found that as many as six in 10 victims do not receive their rights under the victims’ code, two in 10 are not referred to support services, and six in 10 are not referred to a needs assessment. In my most recent victim survey, fewer than three in 10 respondents were aware of the existence of the code. Only 29% recalled being told about the entitlement to make a victim personal statement.

In December, we had the report of the joint inspection on how well the police, the CPS and probation supported victims, which also found that the focus on complying with rights under the victims’ code has led to an emphasis on process rather than quality of service. The police, the CPS and the Probation Service did not always consider the needs of victims. As for police sharing information with victims, the report found that this was often a box-ticking exercise, with no evidence of quality. We love tick boxes, but we are missing the whole point of issuing this information and supporting victims. As the recent case in Nottingham has shown so powerfully, the quality and timeliness of communications with victims are crucial.

After 20 years, it is disappointing that we need to have this debate yet again. During that time, there have been many well-intentioned attempts to drive up performance: a tweak here, a nudge there, and yet another revision of the code. This Bill must not be allowed to become another nudge and another tweak.

There is much in the Bill to commend it. It will set up a structure whereby data is collected locally, with the Secretary of State issuing guidance on the data required. There will be an internal process to oversee monitoring of compliance, a programme board, and a ministerial task force. If an agency fails to deliver, it will eventually be issued with a notice of non-compliance. These are all positive developments.

Yes, I do have some concerns—for example, about whether the police and crime commissioners will be resourced to undertake the required data collection and analysis, and about the influence they will be able to assert over national criminal justice agencies at a local level—but let us not focus on those for now. The question we must ask ourselves is: will regional directors of, say, the CPS or the Probation Service lie awake at night worrying about an MoJ notice? I very much doubt it. Where are the transparency, the public accountability, the independent scrutiny and the challenge? By itself, will this worthy framework deliver the culture change we have all been talking about?

As the noble Baroness, Lady Chakrabarti, said last week—I know we have had a weekend in between—we might ask: does it have teeth? I fear that it does not. I support the amendments in this group not because I want to undermine or devalue the work that has been done in government, but because I want to give the Government the tools to make it succeed.

Amendment 30 sets out a framework for the Government to hold the criminal justice agencies to account should they fail to deliver a minimum level of compliance with victims’ rights. This proposal is not a straitjacket; it is a framework. The Government set the threshold, and the timeframe is two successive years. A failure to meet the Government’s set thresholds will result in an inspection, which in turn will result in a published report highlighting shortcomings and making recommendations for the change. This holds agencies fully to account and provides much-needed transparency. To put it bluntly, it has much more clout than an MoJ non-compliance notification.

For the same reason, I support Amendment 31, which gives holders of my role the opportunity to issue non-compliance notices where there is evidence of persistent non- compliance.

I turn to Amendments 44 to 46, tabled by the noble Lord, Lord Russell of Liverpool. The systematic collection of compliance data offers an opportunity for proper scrutiny and accountability. The publication of the data will be a significant development, but the Government propose to give themselves the responsibility for delivering the assessment of the data. Therefore, they decide on the data to be collected. They fund the PCCs, victim activity and data collection. They also publish their own internal assessment of the data. As the noble Lord, Lord Russell, says, this smacks of the Government marking their own homework.

This framework lacks independent scrutiny and challenge. We can do better than this. This assessment needs to be undertaken by the person who has statutory responsibility for reviewing the operation of the code—in other words, the Victims’ Commissioner: someone who has the freedom to report without fear or favour, and who is able to challenge both the Government and the criminal justice agencies. As a person independent of government, his or her findings would be viewed as credible by victims, the public and the media. I add that my term expires in October, so this responsibility would fall to the future commissioners.

A former CEO of the office of a police and crime commissioner watched the debate last Wednesday, and she emailed me to say that the concerns from speakers about the approach of the criminal justice agencies to the code resonated with her. She said:

“On the additional ‘A’ being added by Lord Bellamy of ‘adaptable’, I understand the point he was making, but I would suggest the agencies sat around the Local Criminal Justice table have made full use of the adaptable nature of the code to date and the lack of governance around it which is why we are in the position we find ourselves with only a third of victims having awareness of the code”.


This needs to change. From the outset, I have constantly said that the credibility of the Bill rests on delivering code compliance and ending the culture within our agencies of adapting themselves around it. This is something on which we are all agreed, and I hope the Minister and the Government will, at long last, listen and act upon our concerns.

[Lord Hampton (CB)]

My Lords, I have added my name to Amendments 30 and 44 to 46 in this group, in the name of the noble Lord, Lord Russell of Liverpool. Others have spoken at length and much better than I can about these, so I really just want to echo the noble Baroness, Lady Newlove, here. These amendments are about compliance, accountability and the Victims’ Commissioner. The noble Baroness, Lady Newlove, talked about tweaks and nudges, which we do not want—just give the Victims’ Commissioner teeth, because independence and rigorous scrutiny are vital if the Bill is to have the confidence of victims.