Crime (Overseas Production Orders) Bill [Lords]

Jim Cunningham Excerpts

2nd reading: House of Commons
Monday 3rd December 2018 Commons Chamber

[The Minister for Security and Economic Crime (Mr Ben Wallace)]

I beg to move, That the Bill be now read a Second time.

As a simple soldier, it is nice to follow a debate full of so many learned colleagues. I have sat in wonder at the lawyers and their questioning over the last two and half hours. It was incredibly generous of the Attorney General to give so much of his time and to answer so many of my colleagues’ questions. I fear that we cannot normally afford lawyers for that long, but I hope the House managed to get to the bottom of it all.

This year, Dr Matthew Falder was sentenced to 25 years in prison. His charges included 137 offences of encouraging child sexual abuse, blackmail, forced labour and possession of indecent images. He tricked his vulnerable victims into sending him images of themselves naked or partially clothed and then blackmailed them into sending increasingly sickening images. He traded these abuse pictures on “hurtcore” forums, whose users revel in controlling and inflicting pain on victims. These hurtcore sites—hidden dark web forums—are dedicated to the discussion, and the sharing of images and videos, of rape, murder, sadism, torture, paedophilia, blackmail, humiliation and degradation. Long delays in getting vital evidence to our law enforcement agencies help people such as Dr Matthew Falder to continue abusing vulnerable children. It is our duty to protect victims from people such as him as quickly as possible.

The Bill is a straightforward piece of legislation designed to remove the bureaucratic barriers we currently face in investigating and prosecuting serious criminals when evidence is held by companies based outside the UK. The Bill provides a new route to allow law enforcement agencies and prosecuting authorities quick and efficient access to electronic data held by overseas communication providers. As I am sure hon. Members are aware, communication service providers are increasingly based outside the UK, and although we can currently access data held or controlled by these providers using mutual legal assistance channels, these processes are often long and bureaucratic, delaying serious criminals being brought to justice. In some cases, that even leads to investigations being abandoned.

Under MLA, there are several obstacles to overcome before law enforcement agencies can obtain data for use in an investigation. The requests must go through both countries’ executing authorities and both countries’ central authorities before getting to the relevant CSP. It can take anything from six months to two years to receive what could be vital evidence, meaning that the prosecution of criminals such as child sexual abusers can be severely delayed, in which time they can continue abusing. Indeed, less than 1% of child sexual abuse content stored online is hosted on UK platforms, meaning that 99% is hosted on platforms owned by companies overseas. The Bill will ensure that law enforcement officers and prosecutors can more effectively investigate and prosecute these horrific offences, so that children in all our constituencies can be kept safe.

Officials in the Home Office have been working closely with operational partners to understand the scale of the problem. Child exploitation and abuse is a very real, very serious and growing epidemic. The National Crime Agency received more than 80,000 individual referrals of horrific online content from the tech industry in 2017, a 700% increase since 2012. In 2014, the NCA made more than 1,600 referrals to UK police forces following tech companies highlighting horrific online content. After just three years, in 2017, the figure rose to nearly 10,000. The agency estimates that in the UK a minimum of 66,0000 to 80,000 individuals present some kind of threat to children. In one operation, it worked with overseas partners to take down a site that contained more than 100,000 videos of child sexual abuse material that had been downloaded more than 1 million times.

All the case studies that I have been given make chilling reading. There are examples of people abusing children online—people whom our agencies struggle to identify and prosecute because of the delays in accessing the data that they need. It is our duty to do something about it and to protect those who are vulnerable online. Of course, online crime goes beyond child sexual abuse. Electronic messages in the form of texts or emails can incriminate arms dealers, drug traffickers, people traffickers and those involved in other types of serious crime, including terrorism. We must ensure that our laws reflect the modern, technological world in which we live.

The overseas production order process offers a much simpler and quicker alternative to MLA for obtaining certain types of electronic data. An overseas production order could be served directly on the relevant overseas CSP rather than via that country’s courts and central authority, which means that our law enforcement agencies and prosecutors will be able to gain access to the data that they need in a matter of days or weeks rather than months or years. The orders will operate in a similar way to domestic production orders. To that end, the Bill was designed to reflect existing domestic legislation as far as possible. Of course, the necessary stringent safeguards will exist to govern access to the data. That includes a requirement that UK courts must be satisfied that the data is of substantial value to the investigation or proceedings, and that there is a public interest in its being produced before an order can be granted.

For the power to make an overseas production order to be available, a relevant international agreement needs to be in place. We envisage that the first agreement will be with the United States, given that a large majority of CSPs are based in North America. Parliament will have an opportunity to scrutinise each international agreement properly and thoroughly before it is ratified in the usual way.

Members of the other place have already expressed their broad support for the Bill, but a non-Government amendment was made to clause 1(6), on international agreements. As it stands, the subsection is technically deficient, because it refers to data that the UK provides “under this Act”. The Bill is only about the UK’s outgoing requests for data from overseas providers, so the UK would not be providing data under it. Because that subsection would not achieve what the Government understand to be the Opposition’s intended effect, “this Act” will need to be amended to “the agreement.” I have listened carefully to the arguments advanced by Members of the Lords, and I look forward to working with Members of this House to address their concerns.

Members may accept that bureaucracy is sometimes a necessary evil, but when electronic data could be obtained in a much quicker way and further criminal activities could be prevented, it needs to be reduced. The overseas production order process, together with the international agreements that will underpin it, will remove the unnecessary bureaucratic delay that currently exists in accessing the same electronic data through MLA.

Delay extends the investigation when someone has molested children. Delay leads to continued offending, and those children continue to be abused. Delay leads to serious criminals absconding before they can be brought to justice. Delay could even lead to our law enforcement agencies and prosecutors issuing fewer MLA requests to seek evidential data as they lose faith in the system, and thereby failing to pursue these vile criminals. We do not want to end up in that position: such delay is unacceptable. That illustrates why the Bill is so important, and the heavy price that we continue to pay every day without it.

[Mr Jim Cunningham (Coventry South) (Lab)]

Other countries are guilty of delays—indeed, long delays.

[Mr Wallace]

Under the current system, we present an MLA to a country’s central Government authority, which will take it to that country’s courts. Once it is out of our hands, the pace will be that of the country concerned. Its courts will recognise the order and enforce it against the CSPs overseas, which are predominantly in the United States—for instance, Facebook and Google—and will then bring it back to us. That whole process involves many bureaucratic delays. For instance, there is the time that it takes for the case to go to the central authority and then to the courts, and the time that it takes for the volume of the orders to be decided, and sometimes challenged, in the courts. We are simply seeking to introduce a system whereby our police go to a court in the United Kingdom, the court makes the order, and the international treaties allow our orders to be recognised by overseas CSPs.

[Mr Cunningham]

May I pursue the point a little further? Can the Minister give us a rough idea of the timescale, and what the delays actually cost?

[Mr Wallace]

As I have said, some of them have gone on for years. Some cases are still sitting in courts overseas. It is predominantly a matter of months and years at present, and we want to reduce that to days and weeks. Every day on which we cannot access content in this area—and let us remember that it is the court, not me, that must be satisfied that a request from the police is valid—is a day on which, in many cases, the offenders are still offending. That is why we think the Bill is so important. It reflects the changes in how offending is happening, and the fact that it is now happening online. For many months, Members on both sides of the House have asked what more the Government can do about not only online radicalisation but online offending. This is a concrete step to ensure that we can do more to counter it.

The MLA process will continue to exist. It remains critical to other types of evidence that are not within the scope of the Bill and to any electronic evidence that may not be provided for by the relevant international agreement. However, one of the biggest pitfalls of the current system is the long wait to secure electronic data that, by its nature, can be shared very quickly. The Bill provides the solution in the form of an additional, streamlined alternative: the overseas production order.

I do not doubt that Members will support the crucial purpose of the Bill, which is to provide a significantly faster mechanism for obtaining vital electronic data that is held by overseas providers in order to prosecute the most serious offenders and to safeguard vulnerable people in our society from further unnecessary harm. I commend it to the House.