Police, Crime, Sentencing and Courts Bill (Seventh sitting)

Alex Cunningham Excerpts

Committee stage
Thursday 27th May 2021 Public Bill Committees

[Sarah Jones]

I completely agree. The issue of people having things on their phone that relate to their family or friends, which they feel it would be terrible for others to see, has not been thought through.

In the Bater-James Court of Appeal judgment, the judges were clear that there should not be speculative searches, and that there must be specificity based on a reasonable line of inquiry. The information should be extracted only in so far as it is strictly necessary and proportionate to the investigation, and the officer must be satisfied that there are no other, less intrusive means available to them of pursuing that line of inquiry. It is vital that the police can rely on “strict necessity” for law enforcement purposes from the perspective of data protection, but it is also vital that the victims agree to the download, meaning that they fully understand what is being sought, and that the agreement is freely given.

In an evidence session last week, we heard from Martin Hewitt of the National Police Chiefs’ Council that there is an ever-increasing

“volume of digital evidence that is required for almost every investigation.”

He said:

“That has created real pressure on the time limits of investigations and our ability to gather the evidence that we need to take an investigation forward. We have increased the capability. It is partly about equipment and having the right equipment to be able to extract digital evidence. It is also about having officers and staff who have the right capabilities to assess that evidence and produce it in an evidential form…However, the flip side and the really important point is making sure that what is being done is lawful, proportionate and necessary. Again, that side of the work is equally important…So we need the legal framework to allow us to do that properly and we then also need the resourcing and the capabilities to do it within the right time limits.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c.16, Q21.]

[Alex Cunningham (Stockton North) (Lab)]

My hon. Friend is making a very clear argument. She will recollect clause 36(10), which relates to the age of an adult. It suggests that in the context of extraction for information, an “adult” is someone who is 16 years old. Is it not all the more important that we have legal protections for children, if the Government insist that they are adults at the age of 16?

[Sarah Jones]

My hon. Friend makes a very good point, which was raised last week, and which I know the Minister has clocked. We have an amendment to shift the age from 16 to 18, but my hon. Friend is absolutely right to say that if the age remains that low, we need to make even more sure that we protect victims.

Police forces carry out digital data extraction from victims’ phones in kiosks. In the police forces that have kiosks—not all of them do—the police often have to queue and wait to download their information. Martin Hewitt’s point about time limits is crucial; the police clearly do not have the right equipment for the new power to be used in the way that the law says it should be used. The police do not have the technology to draw out specific information from people’s phones, and the risk of incriminating family or friends can prevent cases from going ahead. I know that the guidance from the College of Policing says that police must immediately delete all data that are not relevant, but there is a big problem, in that so many cases brought to them do not go ahead. Will the Minister provide assurances as to how the Government will provide the police with the resources and capacity that they need to enforce what they need to do with digital extraction?

In the evidence sessions, we also heard from Dame Vera Baird that

“The police have now done a lot of work to try to shift policy backwards, and this new power—which has no obvious nod, even, in the direction of the protection of complainants—came out of the blue from a different Department of the Home Office, and has absolutely none of the protections that, in policy terms, the police have been looking towards for quite some time.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 20 May 2021; c.111, Q174.]

New clauses 49 to 53, on the power to extract data from electronic devices, would protect the rights of complainants under article 8 of the European convention on human rights, particularly in sexual assault and rape cases. They would more clearly define that “agreement” in the legislation means informed and freely given agreement, to avoid abuse of this power. The new clauses would ensure that alternatives were considered before a request was made to a victim, and that only specified persons could agree and provide a device on behalf of children, who must be consulted before a decision is made. The same would apply to adults without capacity. The new clauses would oblige the code of practice to address a number of points about exercising the power, in order to better protect the rights and experience of victims.

I will run through the issues that we are seeking to correct through the new clauses. The first is that there is no definition of “agreement” in the legislation. As we have said, police all too often seek the agreement of complainants of sexual violence in circumstances where they are not fully informed—sometimes they are being coerced—so it is really important that the primary legislation defines “agreement”, which means agreement that is informed and freely given. Linked to agreement is the need for the police to be specific about what data they are seeking. Only if the police are specific can the data owner give informed agreement to extraction.

The second issue is that a reasonable line of inquiry is not clearly defined in the legislation. It nods to that by using the word “relevant”, but material sought from a suspect or complainant for the purposes of investigating and prosecuting crime will be relevant only inasmuch as it is part of a reasonable line of inquiry. It is vital that that be clearly defined in the legislation. Without a clear definition, the legal hoop for police is merely reasonable belief and relevance. This risks further embedding a culture of wholescale downloads and intrusion into privacy.

--- Later in debate ---

[Victoria Atkins]

We have been working together on this. We must not not forget that the background to the legal framework has to take into account the Criminal Procedure and Investigations Act 1996 and the more general disclosure rules, for example. But this has been very much a piece of work across Government, because we want this framework to give confidence and clarity to victims and to suspects, but also, importantly, to the police and the Crown Prosecution Service, because they are the ones who must administer and work within the legal framework and the code of practice.

If I may, Mr McCabe, I will take a bit of time, because this is such an important measure and I am mindful that there are questions about it, to set out some of the detailed thinking behind the way in which the clauses have been drafted. The current approach to the extraction of information from digital devices has indeed been criticised by some as feeling like a “digital strip-search” where devices have been 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 where it was not relevant to the offence under investigation. We absolutely understand the concerns that have been raised in relation to that.

[Alex Cunningham]

I think this is an appropriate point for me to lay the challenge on the Government about the decision to classify children as adults at the age of 16 in clause 36(10). The Minister has just used the expression “digital strip-search”. Is it really appropriate for a 16-year-old girl, or boy for that matter, to have a digital strip-search, giving up all their little secrets and everything else, because the Government think that they should be classified as an adult and that adult factors should be applied directly to them?

[Victoria Atkins]

I will deal with that in detail in due course. Just so that colleagues understand how that age was settled upon, in the drafting we carefully considered people’s views, including the Information Commissioner, about the freedoms and the feelings of power and authority that users of devices have. We settled on the age of 16 because we understand that a 16-year-old is different from a 12 or 13-year-old, if their parents have allowed them mobile phones, although I am banning my son from having a mobile phone until he is at least 35, but there we go. A moment of lightness, sorry.

I will deal with the point in more detail later, because it is important, but there is a difficult balance to maintain between rights of victims, suspects and defendants but also rights of users, particularly under the European convention, so that has been the Government’s motivation in this. However, we are alive to scrutiny.