Victims and Prisoners Bill

Lord Hampton Excerpts

Committee stage
Wednesday 7th February 2024 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I support Amendment 115 and would certainly have put my name to it had there been any space. I was shocked when I discovered this initially, and remain shocked, that victims are advised to postpone counselling and therapy, which goes against everything that I understand about the importance of counselling and therapy. It is another instance of victims being regarded as a sort of unwarranted hindrance to a prosecution. They are bystanders —somehow they are being too awkward, almost by their existence.

I very much support the amendment. However, I wonder whether the arguments do not extend to some extreme offences other than sexual offences—violence, modern slavery and so on. Since we will not be voting at this stage and, on an amendment like this it would be unusual for the Minister to say, “I agree”, and then sit down, if this amendment comes back at a later stage, perhaps thought could be given to extending it. It could be about not just victims of offences—I am not making the distinction between sexual and other offences—but about victims of acts which, if proved, would be offences. That may be a bit technical at this point.

I also support Amendment 106. There is something very perverse about the data subject being so hampered in the deletion of her or his own data, as if our personality and humanity were somehow lesser than our data presence.

My name is to the first two amendments in the name of the noble Baroness, Lady Thornton, which are about independent legal advocates and legal advice. We had a long debate on Monday about the skills that are needed by advocates, and Amendment 78 seems to bring those skills together. An advocate needs a range of skills, which should include legal qualification. I do not know whether it needs to be that of a solicitor— I am a solicitor; a legal executive with experience in this could do it equally well—but it is about the combination of the legal skills and other skills that are needed to work in support of victims. I do not suggest that solicitors would not have those.

[Lord Hampton (CB)]

My Lords, I will speak briefly to my Amendments 103 and 103A, which the noble Baroness, Lady Thornton, has already talked about. I am grateful for the support of the noble Lords, Lord Ponsonby of Shulbrede and Lord Russell of Liverpool.

These amendments would simply add the Children’s Commissioner as a statutory consultee for the codes of practice alongside the Information Commissioner, the Commissioner for Victims and Witnesses and the domestic abuse commissioner. The Minister might well say that this is covered by the phrase

“such other persons as the Secretary of State considers appropriate”.

The noble and learned Lord, Lord Bellamy, pointed out proudly earlier in our debates that children are mentioned in the Bill three times; this is an opportunity to add them two more times, making five in all. By simply adding the Children’s Commissioner to the list of names in the Bill, the Government can, with no effort or watering down, show the importance of children as victims. I look forward to the Minister’s answer.

[Baroness Newlove (Con)]

My Lords, I support most of the amendments in this group, which is quite lengthy. One of my key priorities for the Bill is that it delivers greater safeguards to protect the privacy of victims of sexual violence. That is why I am speaking in support of these valuable amendments.

The Government’s rape review was in response to the concern at collapsing charging and prosecution numbers. The review found that most victims did not see a charge or reach court, and one in two victims withdrew from the rape investigations. Privacy concerns led many to withdraw. It had become standard practice for victims who reported to the police to be asked to hand over large quantities of private information. This included digital data from mobile phones, but also what is known as “third-party materials”—personal information about an individual held by organisations.

“Third-party materials” is a seemingly innocuous phrase, but it belies a greater meaning and significance. In reality, it means education records, medical files, social services records or therapy notes. These can all be requested as part of an investigation—an investigation that focuses on the victim, not the accused. I quote one sexual violence survivor:

“I felt anxious, confused and infuriated. I was under far deeper investigation than the rapist (who I have no doubt would have had questionable material had they searched the same). They had refused to take physical evidence—my clothing from the night of the attack—but wanted to investigate my private life. I asked them to justify each request but they could not, so I did not provide it”.


This material often includes documents that the victim may have never seen. These can be introduced at court and used to attack the victim. As one victim told me:

“I had good support for the criminal court. Good preparation. But it made me angry. I was made out to be a liar and it made me feel low. That came as a surprise—it was dreadful. I wasn’t expecting it. Afterwards I was very upset and couldn’t control myself. I started having dreams and flash backs. I was asked about things in my records that I knew nothing about—my past and I didn’t know why”.


In effect, victims are being forced to choose between seeking justice and their right to a private life. That is not a choice; that is an ultimatum. The Government made reassuring noises when they announced an amendment to the Bill over the summer. They promised better protection for rape victims from invasive record requests, but I am concerned that their proposals do not offer the level of protection that we are calling for or that victims need. We need provisions that will offer the protection required. For this reason I am in full support of Amendments 101, 102 and 173, tabled by my noble friend Lady Morgan, which my noble friend Lady Finn eloquently addressed today.

Some noble Lords may recognise these provisions: my predecessor as Victims’ Commissioner, Dame Vera Baird, secured similar amendments to the Police, Crime, Sentencing and Courts Act 2022. These were designed to protect rape victims from overintrusive and excessive police requests for personal mobile data downloads. This amendment not only provides greater support for victims but provides police with a consistent approach to handling requests for digital material and third-party material. Their job is difficult enough as it is, without lawmakers adding to the complexity of their work by placing two very different processes and criteria side by side.

I am also pleased to support Amendments 78 and 79, which call for free legal representation for victims of rape and sexual assault to ensure that their privacy is also protected. Requests for information are often a clear violation of our human right to privacy—our Article 8 rights, to use the legal jargon. My predecessor argued that there should be a right in law for victims to be given free legal representation where these rights are threatened. I wholeheartedly and absolutely agree. Put simply, a lawyer advises and makes representations on the victims’ behalf, cooling police requests for data and improving victim confidence in proceedings. In their rape review, the Government committed to consider a pilot, and I will push hard to get this up and running.

I also support Amendment 115, which if enacted would enable rape victims to seek therapy to help them cope and recover. I am always concerned when I meet victims of rape who tell me they have declined to seek counselling. They are rightly told that notes from counselling sessions might be disclosed to the court. Worse, they might be disclosed to the defendant: intimate, personal details shared with their abuser. That cannot be right. As a result, many victims will wait until the trial is complete before seeking therapy. This can mean years without support, suffering alone and in torment. Some may take their life. It is no surprise that many withdraw so they can access counselling sooner. That is no good for the victim, no good for justice and no good for society.

Currently, notes are routinely requested and can end up being the subject of cross-examination at court. As one survivor said when appearing on “Newsnight”:

“The defence said ‘Are you truthful?’ and when I said yes, she said—‘Well, you’re not exactly truthful with your husband are you? Would you like me to read your therapy notes out about what you’re currently discussing with your therapist?’ I said no. It was like a physical punch because I wasn’t expecting it. That someone would bring that up in a courtroom, about my current sex life. How, how is that relevant? It was violating—like another trauma”.


That is why I want to see records of therapy and counselling received by victims of sexual violence made subject to a form of privilege that would make them exempt from disclosure. It would not be an absolute privilege: judges could waive it if they considered a substantial value to the notes being disclosed. It is a model that balances the defendant’s right to a fair trial with a victim’s right to access counselling. We know it works. As my noble friend mentioned, it has been in place for many years in Australia, where the criminal justice system is comparable to ours. It is about a fairer model, and that is what the Bill needs to deliver: a level playing field for victims.

I also support Amendment 106. Like many others in this Committee, no doubt, I was appalled to hear that malicious individuals are weaponising legislation designed and put in place to protect vulnerable children. As we have already heard, if an individual makes a malicious complaint about someone to the police, the police can act to remove that record.