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.

Victims and Prisoners Bill

Baroness Morgan of Cotes Excerpts

Report stage
Tuesday 30th April 2024 Lords Chamber

Moved by

[Baroness Morgan of Cotes]

94: After Clause 25, insert the following new Clause—
“Review of requests for counselling information relating to victims(1) The Secretary of State must prepare a report about the operation in the review period of Chapter 3A of the Police, Crime, Sentencing and Courts Act 2022 (requests for information relating to victims) (inserted by section 24 of this Act) in relation to counselling information requests.(2) The Secretary of State may discharge the duty in subsection (1) by arranging for another person to prepare a report about those matters.(3) As soon as is reasonably practicable after the end of the review period, the Secretary of State must—(a) arrange for the report prepared under subsection (1) (or under arrangements under subsection (2)) to be published, and(b) lay the report before Parliament.(4) In this section—“counselling information request” has the meaning given by section 44A(3B) of the Police, Crime, Sentencing and Courts Act 2022;“review period” means the period of three years beginning with the day on which section 24 comes into force.”Member’s explanatory statement
This amendment requires a report about the operation of Chapter 3A of the Police, Crime, Sentencing and Courts Act 2022, inserted by section 24 of this Act, in relation to counselling information requests to be prepared, published and laid before Parliament.

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Moved by

[Baroness Morgan of Cotes]

95: After Clause 26, insert the following new Clause—
“Victims’ rights in relation to data(1) The UK GDPR is amended as follows.(2) In Article 21 (right to object), after paragraph 1, insert—“1A. The data subject shall have the right to object on grounds relating to his or her particular situation, at any time to processing of personal data concerning him or her, or a third party where that party is a child for whom they have parental responsibility, which is based on points (a) to (f) of Article 6(1), including profiling based on those provisions, if exceptional circumstances apply.1B. The exceptional circumstances mentioned in paragraph 1A are—(a) that the processing of the data was connected to, or reliant upon, conduct which could reasonably be suspected to constitute a criminal offence, or(b) that the processing of the data was connected to, or reliant upon, conduct which could reasonably be considered as being intended to cause harassment, alarm or distress to the data subject or another living individual.1C. The Secretary of State may by regulations subject to the affirmative resolution procedure prescribe other exceptional circumstances where the right to object mentioned in paragraph 1A applies.” (3) In Article 17 (right to erasure (“right to be forgotten”)), after paragraph 1(c), insert—“(ca) the data subject objects to the processing pursuant to Article 21(1A).””Member’s explanatory statement
This amendment would allow victims of third party harassment to request the deletion of any personal data which was gathered or held as part of activity which could be considered criminal conduct. The aim of this amendment is to prevent third party reporting from causing ongoing distress to victims.

[Baroness Morgan of Cotes (Con)]

My Lords, I am sorry that due to a family matter I could not be in the House for the Committee stage of this Bill to move the similar amendment tabled earlier. I am very grateful to my noble friend Lady Finn for speaking to that amendment. This amendment was tabled in the House of Commons by Stella Creasy MP based on her experience as a victim of harassment, but it is not unique to her situation. I am grateful, and I know she is too, for the continuing support for this amendment from the noble Lord, Lord Russell of Liverpool, the noble Baroness, Lady Brinton, and my noble friend Lady Finn, and for the engagement we have had with the Opposition Front Bench. I am also very grateful to Ministers and officials who have engaged with us in recent weeks on the issues raised by this amendment.

To recap briefly, just to put the amendment in context, if an individual makes a malicious complaint about someone to the police, the police can act to remove that record, but 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, whether that be workplace harassment, stalking or some other malicious behaviour. Such harassment, stalking or malicious behaviour might well include allegations about the parenting capacity of the victim, but it often takes other forms.

Many victims find that even if the person targeting them has been convicted, their harassment continues because such records remain in existence. This is because current data protection rules mean that records such as this cannot always be deleted. The retention of this data has long-lasting consequences for all individuals involved. In fact, having to repeatedly disclose the existence of the complaint, even if it has been proven to be part of a campaign of stalking or harassment, is in many ways a repetition of that harassment.

I think that where we are now, after that engagement with Ministers and officials, is that there is now a recognition by the Government that reporting by a third party can be used to perpetuate harassment or as part of a stalking campaign, and also that victims should be better supported to have those reports deleted. I understand that the Government’s concern has been to strike a balance between the right to erasure of data held as a result of malicious conduct or intent and the need of organisations to retain data that could become relevant in some future safeguarding context, particularly involving children.

That is why the proposed new clause before the House seeks to enable the deletion of data where a clear threshold is met to show that the report was the result of malice and its retention would continue the harassment. I think all those involved in the discussions, including the Government, agree that the threshold would certainly be reached in the case of a criminal conviction. Many of us also believe that the threshold is reached in the case of a civil order, where such an order is applied for by the police or made by the court, and where a breach of that order is in itself a criminal offence. It is important that we do not put victims off having such orders applied for in order to stop the harassment or stalking behaviour.

It is also important that the burden of getting the data deleted is not placed back on the victim of the stalking and harassment. Careful amendments to statutory guidance and the victims’ code would also be very welcome to ensure that in the right circumstances there is a presumption for the removal of data and the relevant authorities are given clear guidance on how to treat victim applications where malicious reporting is involved.

Having said all that, I shall now listen carefully to the rest of this debate, particularly to what to my noble and learned friend the Minister has to say in reply to these points. This is an important issue that we can do something about in the Bill to support victims of this malicious behaviour, and I hope that the House, Ministers and the Government will take the opportunity to do so. I beg to move.

[Lord Russell of Liverpool (CB)]

My Lords, I was happy to add my name to this amendment, to which several of us spoke at Second Reading and in Committee. I pay tribute to the noble Baroness, Lady Morgan, and Stella Creasy MP for the dogged way in which they have pursued this issue. I give the Government and the Bill team credit for being worn down to the extent that a degree of accord, and indeed a recognition of this particular form of invasive behaviour, have been reached.

There is a lot in the press at the moment about a phenomenon known as sextortion. I would almost call what we are talking about in the amendment a form of domestic terrorism. It is somebody making a completely unfounded allegation about, in this case, somebody else’s fitness to be a parent of small children in order to, in a sense, force a situation in which an investigation has to take place. Even though the investigation finds that there is absolutely no basis in the allegation, the allegation remains on that individual’s record, and that individual is compelled to reveal that allegation in a variety of situations in which they are required to provide due diligence. In each case they have to explain that it was malicious and the result of harassment. That is what we are trying to avoid.

I too am looking forward to what the Minister will say in response. I hope that at Third Reading there will be an amendment that we can all agree with. Your Lordships will be aware that, as Stella Creasy was surprised to find out, we in your Lordships’ House are able to table an amendment at Third Reading. We very much hope that will not be necessary, because we are sure the government amendment will meet what is required. To that extent, the sooner we are able to see the wording of the government amendment and have a further dialogue about it if necessary, so that we are all on the same page at Third Reading, the better. I thank the Minister and the Bill team for being so accommodating.

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I can also commit to working further with my noble friend and other Peers once we have the necessary wording ahead of Third Reading, to ensure that there is time for scrutiny and discussion on this. I pay particular tribute to my noble friend Lady Barran, who I think has engaged closely with my noble friend Lady Morgan and others on this topic. On that basis, I urge my noble friend to withdraw her amendment at this point.

[Baroness Morgan of Cotes (Con)]

My Lords, I thank my noble and learned friend Lord Bellamy very much for that wording. I also thank all those who have spoken in this short but perfectly formed, deeply efficient and extremely tenacious debate for their support, which has been much appreciated. Perhaps I might say that this has also been an instructive lesson to Members from the House of Commons as to how we get things done here in this Chamber.

We need to see the wording and I am grateful to my noble and learned friend for saying that. We will of course engage with his officials. I am also deeply grateful to my noble friend Lady Barran for her engagement already. I am very grateful that the Government now see the need to update the law to take into account this very real situation. Any amendment needs to be clear that the process of applying for deletion must be accessible to victims of malicious complaint. The threshold, as we have heard, is not just criminal convictions but, potentially, other orders so that we do not create a perverse incentive for victims not to have certain orders sought on their behalf. I also appreciate that any amendment obviously needs to safeguard protection and rights for children.

On this basis, we will see whether the government amendment goes far enough when we see it before Third Reading—I hope we see it well in advance of that—and, if not, I reserve the right to table our own to continue the debate. I am grateful for the support. I will even take it to a vote at Third Reading if we feel that the Government’s amendment is not fit for purpose. But, for the purposes of today, I will withdraw Amendment 95.

Amendment 95 withdrawn.

Victims and Prisoners Bill

Baroness Morgan of Cotes Excerpts

3rd reading
Thursday 23rd May 2024 Lords Chamber

[Lord Bellamy (Con)]

I think this is not a very useful debate to pursue at this stage of the proceedings. Without going any further, I am under the impression that it is not only the question of agreeing on a lawyer, but whether a standing public advocate should be appointed in the first place. I suggest that is something we should leave aside for today’s purposes.

My second duty is to speak to Amendment 1 in my name on the Marshalled List. I thank the noble Baroness, Lady Morgan of Cotes, and Stella Creasy, a Member of Parliament in the other place, for the amendments they have tabled on this issue, and their engagement with myself and officials in this area. The amendment concerns what to do when there is a malicious complaint to social services and the procedure for removing that complaint, following the conviction of the complainant and the finding that the complaint was malicious.

Amendment 1 will insert into Article 17(1) of the GDPR—in fact, it inserts it into the relevant European directive so we have an unusual example of the UK Government directly amending European legislation—a new Part 2 ground which creates the right for certain victims who are data subjects to request deletion of personal data when the following two circumstances occur: first, when an allegation has been made by a person who has been convicted of relevant criminal offence against the data subject, or the person is subject to a stalking protection order made to protect the data subject from a risk associated with stalking; secondly, following an investigation by the data controller, it has been decided that no further action has to be taken in relation to the allegation.

The relevant criminal offences listed in the amendment are the offences of stalking and harassment against a victim. A power is also taken to update this list by regulations made using the affirmative procedure, should further offences be required to be included in the future. This amendment will provide a specific new ground for victims of stalking and harassment for the deletion of false allegations made about them, and support them to prevent the further distress that retaining this information may cause.

To ensure that the data controller has an important reason to retain the data, the exemptions under Article 17(3) of the UK GDPR will apply. This allows the data controller to refuse the re quest for a limited list of reasons, including whether processing is necessary for compliance with a legal obligation or the performance of a task carried out in the public interest, which could capture refusal for safeguarding reasons. However, data controllers must provide reasons for any refusal and inform data subjects of their right to complain to the Information Commissioner’s Office. We will ensure that guidance, including on child safeguarding, is updated so data controllers understand how the new ground is intended to work. We will also update the victims’ code so that victims are aware of their rights around data erasure.

I therefore commend this amendment to the House, and I hope that what I have said will permit the noble Baroness, Lady Morgan, not to press her Amendment 2 on the marshalled list.

[Baroness Morgan of Cotes (Con)]

My Lords, it is a pleasure to speak on this very important Bill. I am delighted that it covers so many vital issues and will proceed, we hope, to Royal Assent before Parliament is prorogued.

I shall speak to Amendments 1 and 2. I thank my noble friends the Minister and Lady Barran, and their officials, for their engagement on this matter at some speed. I am delighted that Stella Creasy is here to listen to the debate. I thank the noble Baroness, Lady Brinton, my noble friend Lady Finn and the noble Lord, Lord Russell, for their support, as well as the Opposition Front Bench.

Politics is the “art of the possible”, as the important quote goes. The Government have now accepted, after resisting for many months, the principle behind Amendment 2, which we repeatedly tabled in this House at various stages of the Bill. As we have heard, the law should be updated to recognise that, in cases of stalking and harassment, one of the things that the stalker or harasser can do to prolong their victim’s agony is to make a false and malicious allegation which stays on the record, and data controllers hide behind their rights in not deleting it even when the allegation has been found to be both false and malicious.

I recognise the progress that has been made in the tabling of Amendment 1. As ever, of course, the devil is in the detail. As my noble and learned friend Lord Bellamy has said, there are still grounds under Article 17(3) of the GDPR on which a data controller could refuse to delete the data. I really welcome his clear commitment that there needs to be strong guidance to the ICO and data controllers in the Explanatory Notes to the Bill, and also provisions in the victims’ code. The danger with all this is that we still leave the burden on victims to argue for the data to be erased, and the power remains with the data controller. That is what worries me about those exemptions in Article 17(3).

In that guidance, the data controller must be told that they need to set out substantive grounds for refusing any request for erasure of the data. We also hope that the Government will set out scenarios in which those exemptions in Article 17(3), provided for in law, cannot be used in cases where data records have been created as a result of malicious conduct.

Having said all that, I recognise where we are at this time in this Parliament. I will be interested to hear what other noble Lords might say in this short debate and what the Minister might say in summing up. I recognise and thank my noble and learned friend for the progress that he has made on this issue.

[Lord Russell of Liverpool (CB)]

My Lords, I will speak very briefly. I pay tribute to the noble Baroness, Lady Morgan, for her persistence and skills in negotiating with her own party, which is possibly easier than doing it from outside the party.

I stress the absolute importance of giving crystal clear guidance. The occupation of data controller is not necessarily high on the list of most of us as a potential career. I suspect that it is not the most exciting part of many bureaucracies. I also suspect that it is an area where one follows the rulebook, or what one perceives to be the rulebook, particularly closely. I suspect that the ability of individuals to feel that they have the power to exercise their own judgment is somewhat limited and probably not encouraged. It is incredibly important that there is absolutely no doubt in the mind of even the least curious or the most obdurate data controller as to what is and is not acceptable in terms of erasure.

Other than that, I thank the Government for having thought about this carefully, and for having responded. I hope that as a result of this, the data controller in Waltham Forest who is making Stella Creasy’s life rather difficult will at least read this debate or be told of it and will rethink his or her decision to not erase the data.