Police, Crime, Sentencing and Courts Bill

Lord Beith Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Monday 13th December 2021 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, this group of amendments and the related clauses address the phenomenon that those unfortunate enough to have experienced it call digital strip-searching—the practice of demanding a complainant’s device, usually a mobile phone, in the police station in return for agreeing to pursue a criminal investigation, usually into an alleged sex offence such as rape.

I begin by thanking the Minister for taking the problem seriously and understanding the need to address it via statute. I am afraid that I remember Ministers standing at that Dispatch Box even a couple of years ago, denying that the practice was problematic, widespread or disproportionate and even arguing against the need for primary legislation—so-called consent, in exchange for a vindication of one’s fundamental right to an investigation into such a serious crime, being sufficient. Mansplaining to rape survivors is bad enough; “Baronsplaining”, if I may call it that, was a new level of insensitivity.

I will not insult the empathy of your Lordships’ House by reiterating why an extraction of data from a personal smartphone or computer is one of the most intimate searches in the modern era and can leave the complainant feeling more like a suspect, even if the extraction is swift and on the spot and takes no more data than is strictly necessary to the particular investigation. That successive Governments, DPPs and police leaders have failed to address this problem must have played at least some part in our appalling attrition rates for the prosecution of sex offences.

While this part of the Bill is a much-needed attempted correction, we would not need to amend it if survivor and human rights groups had been properly consulted. I declare an interest as a council member of the all-party group, Justice. Amendments 43 to 46, 48 and 51 in my name are advanced by a broad coalition of civil society organisations, led by Big Brother Watch, Amnesty International, the Centre for Women’s Justice and Rape Crisis. They are currently unconvinced that the Bill, either as it stands or with proposed government amendments, does enough to protect complainants and rebuild trust in the investigation and prosecution of sex offences.

Amendments 43 and 44 allow the complainant to be present during the extraction of data, unless that is impracticable or inappropriate, and create a time limit for any police retention of the device. Amendment 45 would make the threshold for extraction the tighter and objective ECHR test of strict necessity, and Amendment 46 would further tighten the criteria. Amendment 48 would allow a DCI review of the strict necessity of any extraction agreement, and Amendment 51 requires a fuller explanation of the person’s rights before they agree. I thank the noble Lord, Lord Paddick. Crucially, his Amendment 50 ensures that the explanation is given orally, as well as in writing. My noble friend Lord Rosser’s Amendment 52A makes provision for data in the hands of a third party.

Government Amendment 52 in the Minister’s name creates a proportionality but not a strict necessity test for extraction where the authorised person is of the subjective view that there is a risk of obtaining confidential information—of course there is. Amendments 53 to 56 replace the need for regulations with the laying of statutory guidance.

The government provision still contains fewer statutory safeguards than sought by the victims’ rights coalition, so I urge the Minister to move further in its direction by accepting its amendments, refining or tweaking them at Third Reading or, at the very least—and before the preparation of any statutory guidance under the new legislation—agreeing to meet with a small group of those representing voices that have been ignored for too long. I beg to move.

[Lord Beith (LD)]

My Lords, I am ready to support the commitment of the noble Baroness, Lady Chakrabarti, in bringing forward this amendment, and appreciative of the Minister’s moves as represented in the government amendments. I simply want to clarify some points, because there are still concerns in this area. Some of the concerns arise from the context.

Police abuse of procedures of various kinds has been apparent, even to the extent of affecting murder victims. It cannot be denied that within police forces there are a few people who will do these things. That makes it that much more difficult to have complete confidence in the voluntary arrangements that these amendments deal with. I ask the questions: how voluntary, how confidential, and how about disclosure?

How voluntary? When someone is asked to hand over their phone, the police officer usually says, “It’s up to you but unless you hand over your phone to me, I can’t see the Crown Prosecution Service having enough material to take this case forward, and I think that would probably be the end of your attempt to get justice”. I am paraphrasing, but that might effectively be what he says. That means the safeguards are important, and I welcome them, but will they be sufficient?

How confidential? Government Amendment 49 says “confidential” has the meaning it has in Amendment 47, but Amendment 47 does not actually define “confidential”. Clearly, on somebody’s phone there is a great range of confidentiality: from what might be a conversation about an intimate relationship through to a bank account, a family row or something else that someone regards as in need of safeguarding and treating as confidential. We need to be a little clearer about that.

What about disclosure? Can the Minister say a little about to what extent, if any, the requirement of disclosing material to the defence is affected by these provisions? That puts a further pressure, of course, on the victim of the crime, but it is an essential part of our justice system that when evidence is found that would assist the defence, it is the duty of the prosecution to hand it over. These are the points that concern me.