Victims and Prisoners Bill

Baroness Bertin Excerpts

Committee stage
Wednesday 7th February 2024 Lords Chamber

Amendments 103 and 103A, to which my noble friend Lord Ponsonby has added his name, would make the Children’s Commissioner a statutory consultee for the codes of practice for victim information requests, to ensure that a child’s distinct needs and experiences are reflected, which is surely a necessary matter. I beg to move.

[Baroness Bertin (Con)]

My Lords, on behalf of my noble friend Lady Morgan, who is sorry not to be here today, I shall speak to Amendments 101, 102 and 173, and I shall speak to my own Amendment 115. I give praise and thanks to the noble Baroness, Lady Thornton, for outlining a lot of the issues in these amendments.

First, I shall talk about Amendments 101, 102 and 173, which, I might add, have the name of the noble Baroness, Lady Kidron, attached to them too. Amendment 102 and the associated necessary Amendments 101 and 173 seek to ensure that victims of crime—but particularly victims of sexual violence, for that is where the issue most frequently arises—are protected from excessive and unreasonable demands for their personal data. As the noble Baroness, Lady Thornton, has pointed out, that is the reason why attrition rates are as they are.

Third-party material is material about the victim held by third parties. It can include medical, educational and social services records, as well as records of therapy and counselling, which I will come to in more detail later. It has become commonplace for victims to be subjected to scrutiny of their personal lives, and thus their credibility, by way of a trawl through their personal data, and nowhere more so than in rape investigations. This issue has been well examined in both the media and at a policy level. These trawls act as a deterrent to reporting, and can cause a victim who has reported to then withdraw. There are fears about deeply personal information ending up in the hands of the defendant or being aired in court, where friends and family of the victim may hear it. In addition, requesting this information in such a non-discriminatory way can dramatically elongate already considerable investigation times.

I applaud the Government for introducing legislation in the Police, Crime, Sentencing and Courts Act, which set out a regime to be used by police when requesting digital data, such as that held on mobile phones. Within this Bill, the Government have tabled clauses which purport to do the same for third-party material, but these clauses differ considerably from those in the PCSC Act. As it stands, there will be two quite different regimes for the police to apply when considering obtaining digital material and third-party material, which, in practice, they frequently do in tandem. This is potentially confusing for the police, but, more importantly, for the victims of crime.

Amendment 102 is quite simple, in that it seeks to apply exactly the same robust regime to third-party material as the Government, having listened thoroughly to campaigners, already laid down in legislation for digital material. I hope Ministers will see the need to follow suit in respect of third-party material. This amendment is backed by my noble friend Lady Newlove, the Victims’ Commissioner, so I will allow her to speak to it.

I will speak to my Amendment 115. I am very grateful for the support of the noble Baroness, Lady Thornton, and the noble Lord, Lord Ponsonby. Rape and sexual abuse, as we know in this Committee, are deeply traumatic crimes, the impact of which can be wide-ranging and life changing. Sexual violence and abuse are often a root cause of mental health problems, eating disorders and self-harm, and, tragically, suicide. It is common for the impact of sexual violence and abuse to affect family and personal relationships, a victim’s ability to work, and long-term educational attainment. For many victims and survivors, counselling and therapy are a vital means of working through trauma, supporting them to find routes to regain control of their life. It is therefore imperative that those who choose to do so can seek support without fear that their counselling records will be used to humiliate them in court or, more often, to stop their case progressing in the first place.

The reality is that counselling records contain feelings and not facts. Typically, rape survivors will have feelings of shame and self-blame, and often complex feelings towards the perpetrator. Counsellors and therapists will support survivors to work through these painful feelings and make notes of things that will support their recollection for the next session. They are not collecting evidence for criminal investigations.

Routine access to this material by criminal justice agencies has severe consequences for victims’ mental health and well-being. Some try to stay with the process, while receiving no or limited emotional support, while others drop out altogether because of the intrusion into their private lives. According to recent figures, the proportion of adult rape investigations which ended due to victim attrition was 62%. I think we can all agree that that is far too high. Despite widespread recognition of this problem and the good work carried out by the Government to limit the vast amounts of personal data taken from rape victims, this remains a very big problem.

The Home Office’s own research found that, in case file reviews of rape cases, almost one-third contained a police request for counselling and therapy notes. Where a reason was given for the request, 32% were simply related to establishing a perceived victim reliability or credibility, and did not pertain to the facts of the case.

Rape and sexual abuse are treated with exceptionalism in the criminal investigation process. In no other crime does the victim have their counselling and therapeutic records trawled through and scrutinised with a view to finding any content that may disregard their character. I acknowledge 100% the good work that the Government have taken forward and progressed through Operation Soteria. Stronger legal protections are needed to limit far-reaching requests for these notes which very often contain the most sensitive personal data.

Other jurisdictions have demonstrated that it is possible to do this, while allowing for vital fair trial rights to be duly safeguarded. The state of New South Wales in Australia is a good example. It has an adversarial legal system—very similar to ours—but its notes are afforded far greater protection. This is achieved by ensuring that counselling records are disclosed only when they contain material of substantial probative value and by transferring the decision as to whether this meets the test to a judge. In 20 years, no appeals have been overturned on the basis of counselling and therapy notes.

I propose a similar model because it would strengthen and support the important work led by this Government. It would reinforce the transformative effects undertaken by police and prosecutors through Operation Soteria. It would also save precious police and prosecutor time and resources. They would need to access this material only when they were able to ascertain that there was substantial probative value in it, and not waste time simply trawling through irrelevant records.

We should not miss this opportunity. If the situation does not change, tens of thousands of survivors will have their rights undermined, face further intrusion and be deterred from both therapy and from engaging with criminal investigations. I will leave my noble friend Lady Finn to speak to Amendment 106. I whole- heartedly support Amendment 78. I sincerely hope that the Government will take it on board.

[Baroness Finn (Con)]

My Lords, I rise to speak to Amendment 106 in the name of and on behalf of the noble Baroness, Lady Morgan of Cotes. She is sorry not to be here today because of family commitments. This amendment was first debated in the other place. It was proposed by the honourable Stella Creasy based on her own experience as a victim of harassment. This experience is not unique to her. I am grateful—as I know she is too—for the support for this amendment of the noble Lord, Lord Russell of Liverpool, as well as the noble Baronesses, Lady Thornton and Lady Brinton.

In short, if an individual makes a malicious complaint about someone to the police, the police can act to remove that record. Malicious reporting to other organisations—whether social services or an employer as part of a campaign of stalking and harassment—does not carry the same safeguard. As a result, data is retained on individuals who have been targeted maliciously, be it through workplace harassment, stalking or something else. Many victims find that, even if the person targeting them has been convicted, their harassment continues because such records remain. Current data protection rules mean that such records cannot always be deleted. The retention of this data has lasting consequences for all individuals involved.

This proposed new clause seeks to enable the deletion of data where a clear threshold is met to show that the report was the result of malice and that retaining it would continue the harassment. As the testimony of victims has shown, it is not necessary to be an MP to be subject to malicious reporting as part of a deliberate campaign of stalking and harassment. Such reporting, designed to have a serious long-term impact on victims and their families, can occur against anyone doing any kind of public work, in the context of domestic abuse or as anonymous, vexatious harassment.

Public bodies can refuse to delete the data on the grounds that they feel it necessary to retain that data for compliance with a separate legal obligation or for performing a task in the public interest. To overturn this, a person has to demonstrate that the public body’s retention of the malicious data is not necessary for either of these purposes, thereby putting the burden of proof on to the data subject and potentially requiring lengthy court action.

For most people, this is not possible or desirable, leaving them with no legal recourse. This amendment would update the UK general data protection regulation and address these inconsistencies, mirroring the concept of exceptional circumstances under which any deletion would take place. The proposed new clause would give all data controllers guidance on how to manage situations where there are competing obligations—for example, in safeguarding or identifying repeated attacks on an individual via third-party reporting. Unlike the current right to object, this would create an absolute right to request deletion and therefore overrule exemptions that currently apply. This would ensure that public bodies such as local authorities are able to comply with these requests for deletion without risking failing to meet their legal duties. At present, these authorities are very clear that due to existing data protection rules they cannot take this step.

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[Baroness Newlove (Con)]

My Lords, it is exactly as the noble Lord, Lord Marks, said. He put it so succinctly, more so than I did—I would go on, because I am so passionate about this.

I have admiration for the noble Earl. What worries me in all this legislation is that it is so simple to say, but when it is enacted on a traumatised rape victim, it is not as simple as joining the dots. I am up for having further conversations, but this is for the professionals. While we can stand here and say this, I am still going through the criminal justice system, and believe you me: I could write another book on how it does not do a service to victims—and I am in the position that I am in, as is the noble Baroness, Lady Brinton; it does not follow.

For rape victims, it is really hard-hitting when they are going to a SARC centre to be forensically examined, and they are talking to individual people. While we want to have trust and faith in our police officers, the police are so not like what we will have in statutory guidance. Also, what do we class as reasonable? Everybody within our criminal justice system has a different definition. It should not be for the victim to think, “What is reasonable?”, when they just want to do what is best.

I really want this to work, but I wish we could be cautious and understand that the people we are talking about are traumatised. They may have been raped not once or twice: it could have been in their home. Everything is intrusive, and it is down to the victim to have a voice to go forward. I wish we could get that in the guidance and the legislation, because it is their lives that we are speaking about and it is their lives that we need to put back on a level playing field.

[Baroness Bertin (Con)]

My Lords, I will also come in on this. I have huge respect for the noble Earl, and I have huge respect for the police, but I am afraid I cannot accept the idea that all 43 police forces and all chief constables will look at, understand and know the code of conduct, and that this will somehow be better than a judge saying that something is right or wrong when it comes to releasing therapeutic records. I would certainly like to meet him and others about this, ahead of Report.

[Earl Howe (Con)]

My Lords, I am the first to agree that a code of practice takes us only a certain distance. We also need to ensure that there is proper training for police and others. We had a short debate about this earlier in the week, and I hope I gave some useful information to noble Lords on that front. I am, of course, very happy to speak to my noble friends about this—as I am sure my noble and learned friend Lord Bellamy will be, once he gets better. It is not a simple matter, and I did not intend to suggest that it is.

On the amendment tabled by my noble friend Lady Bertin, as I have already said, it is vital that victims of crime can access the justice system and get the support they need without fear that their privacy will be violated. I am aware of concerns that deeply private information about victims, including notes from counselling sessions, have sometimes been used inappropriately to discredit victims—in particular, victims of rape and serious sexual offences—seeking justice through the criminal justice system. This can, as the noble Lord, Lord Marks, pointed out a minute ago, prevent victims from accessing the support they need in the first instance. That should not be the case, and I am grateful to my noble friend for raising the topic through the amendment.

My noble friend’s amendment seeks to put in place a judicial barrier for disclosure of counselling records and, with some exceptions, to create a requirement for the court not to grant access to this material where the disclosure was made in confidence by the victim to a person providing support services in a professional capacity.

Through the Bill, we are placing a new statutory duty on the police, as I have said, to request victims’ information from a third party only where necessary and proportionate in pursuit of a reasonable line of inquiry. Police must also provide information to the victim on what information has been requested, why, and how it will be used.

As I have outlined, the Government have asked the Law Commission to examine the trial process in sexual offence prosecutions and consider the law, guidance and practice relating to the use of evidence. This review will include consideration of whether a court direction should be required before accessing third-party material such as counselling records, and consideration of international examples where this system is in place.

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[Earl Howe (Con)]

My Lords, having tasked the Law Commission, as we have, with preparing a full-scale set of recommendations in this area, it would be unthinkable for us to pre-empt its report. I am afraid I must disagree with the noble Baroness. I realise how emotive and stressful an area this is for anyone who is intimately involved in it day to day, but that is how we have to proceed.

[Baroness Bertin (Con)]

I want to make a technical point about the Law Commission review, which I have full respect for. As I understand it, the commission will not be looking into pre-charge situations, so the amendment would still stand as that subject is not being tackled by the Law Commission. I reiterate that I just do not buy the idea that police officers all around the country are necessarily going to have the right training to enact the responsibilities that we are putting on them. We really will be pursuing this, I am afraid.

[Earl Howe (Con)]

I hear what my noble friend has said. I was able to give what I hoped was helpful information in our debate on Monday about police training, but it is by no means an overnight process, as I am the first to acknowledge. Still, work is under way, and it is surely an important ingredient in the mix.

We think that the Law Commission is best placed to conduct a holistic review of the existing system and to make recommendations for improvement where necessary, and the Government are most reluctant to make changes at this stage that could pre-empt the outcome of its review. However, we can all look forward to closely reviewing and responding to its findings and recommendations when they are published later in the year.

Before I turn to Amendment 173, I shall address the point raised by the noble Baroness, Lady Finlay, about victims with limited mental capacity. There are general points in the code about enhanced rights if the victim’s quality of evidence is likely to be affected because of a mental disorder. They may be supported by a registered intermediary if a mental disorder affects their ability to communicate. Some communications under the code might be done with a nominated family spokesperson if the victim’s mental impairment means that they are unable to communicate or lack the capacity to do so.

The Law Commission is looking at the impact of rape myths on people with disabilities or mental health conditions and how the current legislation and practice of the use of intermediaries is working in respect of complainants in sexual offence cases with disabilities and disorders.