Policing and Crime Bill

Lord Ponsonby of Shulbrede Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 16th November 2016 Lords Chamber

[Lord Wigley (PC)]

My Lords, Amendment 228C stands in my name and those of the noble Lord, Lord Ponsonby, and the noble Baroness, Lady Howe of Idlicote. I apologise, as I have before, that I have had to dip in and out of the debates on this Bill, for reasons I think noble Lords will understand.

This amendment concerns the victims and witnesses of serious crime and its purpose is to prevent the disclosure of a victim’s identity to the accused when there has been a serious sexual assault and the accused is a stranger. The need for this amendment is best illustrated if I briefly recall a disturbing incident. About 30 months ago, a person, whom I shall call “M”, was followed by a stranger off a bus and subsequently attacked. There was an attempted rape and threats to kill her if she did not stop screaming. Fortunately, two off-duty police officers heard the screams and arrested the attacker. The noble Baroness, Lady Brinton, will recall that M gave harrowing evidence to a seminar that she chaired last month. M told Peers that, later at the police station, she was horrified to learn that her full name had been given to the assailant. He did plead guilty and was handed down a seven-year sentence but, understandably, M is now terrified that, on release, her assailant will find her and attack again. She contacted Voice4Victims, who worked out that he will be released on parole in July next year. M has changed her name, moved home and deleted her name from the electoral register, but she still fears that, by using the internet and social media, he will trace her.

She is not alone: other women have reported similar experiences. One woman reported dropping a case of sexual assault after learning that the attacker had been given her name. Another reported, “I am still scared every day that the guy who did this will be released and he has all my details”. That was also a case of attempted rape. She said that it would have been much safer for her if she just had not reported the attack. M has contacted the police and the Met have responded, saying:

“There is no specific policy or legislation which covers the issue of providing the name of a victim of rape to the suspect. Instead it is an operational decision taken by the officer in the case on a case-by-case basis”.

This came from the office of Commander Christine Jones. M has written to the police heads in all 32 London boroughs. What emerged is that there is no uniform policy at police stations. Most confirmed that, yes, they did disclose. Some said that they did not and that it was a matter for the court. Most were unsure. This situation is not satisfactory and is putting vulnerable female victims at risk. It is not a matter of the right of the accused knowing the accuser. As they are strangers, the use of initials or a single letter would be enough. At court, special measures can and are applied for, but by then it may be too late.

The amendment makes it clear beyond doubt that disclosure puts victims at risk—anonymity does not. The clause, which was drafted for me by Voice4Victims, stipulates that disclosure is prevented if it is reasonable to assume that disclosure would put the victim at further risk of harm. In determining the concept of “reasonable”, the police would take into account previous convictions, mental health issues and, indeed, access to IT. This should mean that in practice names are never given to perpetrators.

I hope that the Minister will recognise the serious circumstances which have led me to table this amendment. I hope that the Government will accept it today, but if for any reason there are technical difficulties with it, I would ask that they bring their own amendment at a later stage, so that this serious matter is properly addressed and victims are not caused additional and unnecessary distress, and potentially serious consequences, because of the current uncertainty as to the requirements of the law. I beg to move.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I rise to support the noble Lord, Lord Wigley. I was sent the same briefing as him, so he has largely said the same as I was going to say. I just remind the Committee that I sit as a magistrate in central London and I deal, not with issues of this seriousness, but certainly with issues of harassment and others of that nature. There is one other factor that I want to add, on what I understand the legal position to be, which I took from the CPS website. If the police want to apply for anonymity for a victim and believe that they have proper grounds to do that, they can apply to a magistrates’ court but, indeed, I believe police officers can give that anonymity if they believe that there is a proper case for it. They have to reapply for anonymity when a trial happens, either at the magistrates’ court or at the Crown Court.

As the noble Lord, Lord Wigley, said so clearly, many of the police who were contacted about this issue simply did not know what the law was and they gave wrong advice to the young woman who was asking for advice. This is very worrying and is very likely to discourage other young women from coming forward. That is really the importance of this amendment.

[Baroness Howe of Idlicote (CB)]

My Lords, it certainly seems extraordinary that there is no policy for legislation determining whether to disclose the identity of a victim of serious sexual crime to the alleged stranger perpetrator. It seems to me that, while nothing is gained by disclosure in the police station, it could be very damaging to the victim. It is relatively easy, in today’s society, for anybody with access to the internet to trace and find the whereabouts of any person, just by having their name.

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[Baroness Howe of Idlicote]

My Lords, I want to add a few words of support for this amendment. Four years ago I was fully in support of the creation of the offence of stalking, which involves putting a person in fear of violence, serious alarm or distress. Although the maximum sentence is five years, there have been a number of disturbing and unduly lenient court sentences for perpetrators who had been stalking their victims for a decade or more.

I recently met Claire Waxman who has been referred to and who had been hounded by a relentless stalker for 13 years. Her case highlighted the struggle that stalking victims face in the criminal justice system. It was one of the key cases given as evidence in the stalking law reform and it took over a decade for her perpetrator to receive a substantial custodial sentence. In those years, Claire said, “I felt completely failed by the justice system for allowing my long-term stalker to receive suspended sentences or very short jail sentences. These sentences served little purpose as he continued his criminal behaviour each time. I strongly believe had we been able to refer this case to the Attorney-General for the Court of Appeal, he may have received the right sentence earlier on, saving me from years of unnecessary harm and distress”. I very much hope that the Government will see a way to support this amendment fully.

[Lord Ponsonby of Shulbrede]

My Lords, I also support this amendment, to which I have put my name.

As I mentioned in an earlier debate, I sit as a magistrate in central London for crime, youth and family matters. I have been a magistrate for just over 10 years and have seen a big change in the nature of crime which we deal with in London. While there is a decreasing overall amount of crime brought to courts in London, there is a rising proportion of crime related to domestic abuse. We all receive specialist training on that matter—we have specialist courts and are very careful about the way we deal with those matters in court. It is an ever increasing proportion of our workload, so I have given out many restraining orders and have also dealt with many breaches of restraining orders. When one gives a warning to somebody who has been given a restraining order, one can never really be too stark in explaining to the offender just how serious it is. Many times you get the impression that they do not appreciate the seriousness of their activities.

Even when a defendant has been acquitted and found not guilty, you can still put in place a restraining order if you believe it is suitable, and you still have to give a suitable warning for that restraining order being put in place. The amendment deals only with people who have been convicted, but restraining orders can be put in place when people are acquitted as well.

The purpose of this amendment is as a backstop to provide the ability to have higher sentences where the courts have put in place unduly lenient sentences. The maximum is five years, but very often there needs to be a facility and an ability to increase sentences if they are felt to be unduly lenient.

[Baroness Brinton]

My Lords, one of the major concerns is that stalking is not used as a charge often enough. It is still too easy to charge with the offence of harassment, rather than stalking. We really need to make sure that the criminal justice system recognises and understands stalking—that was the law reform in 2012 that we worked hard to achieve. However, it is also important to recognise that some cases of stalking are consistently appalling and are also coercive behaviour.

The noble Lord, Lord Wigley, referred to the case of Emily Maitlis’s stalker who had previous convictions, including breaches of restraining orders in 2008, 2010, 2013, 2014 and earlier this year. I am sorry to say that that is not uncommon behaviour with stalkers and there needs to be the facility for the courts to apply for more serious custodial sentences where orders are consistently breached—not least the way that the stalking and coercive behaviour continues. One of the problems we have heard time and again from victims of domestic violence, stalking and coercive behaviour is the way other courts are used—the civil courts or family courts that do not recognise restraining orders that have been held elsewhere. We heard of information, which had not been passed to the family courts, of one former stalker who had been trying to get in front of his ex-partner through the family courts. It is very necessary to have this limited use but essential tool available for the judiciary.

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[Lord Wigley]

My Lords, I will speak also to Amendments 231 and 231A in this group; all are also in the names of the noble Lord, Lord Ponsonby, and the noble Baroness, Lady Howe. The amendments address issues related to digital crime review, surveillance and monitoring offences, and digital crime training and education. I am grateful to Harry Fletcher of the Digital-Trust for his assistance in drafting these amendments. First, they consolidate the numerous statutes that have been enacted over the last 30 years, a period that covers the huge expansion of illegal digital activity. Secondly, they aim to update the law to address the most recent online behaviour. Thirdly, they attempt to ensure that police officers are properly trained in respect of digital crime.

The growth in online crime has been truly immense. Two years ago the head of the College of Policing said on Radio 4 that half of all crime reported to front-line officers had a digital element. By now, it represents a majority of crime. More than 30 separate Acts of Parliament cover various aspects of this category of crime, from the Offences Against the Person Act 1861 to the Data Retention and Investigatory Powers Act 2014. Inevitably, such a plethora of law lacks clarity and is confusing for the police in undertaking their responsibilities.

The Computer Misuse Act 1990 was originally intended to deal with hacking, unauthorised access, stealing data and circulating viruses. Yet between 1990 and 2006 there was on average just one conviction per month. Parliamentary Answers show that between 2007 and 2013 there was a slight improvement—the number of guilty outcomes increased to 1.5 each month across England and Wales. My amendments would place a duty on the Secretary of State to review and consolidate the existing legislation. In doing so, the Minister would of course consult the police and other relevant bodies.

Many online activities may not be covered by current statutes, however. The amendments clarify the situation. For example, use of a digital device to repeatedly locate, listen to or watch a person without legitimate purpose becomes a specified offence. Similarly, installing spyware without the user’s agreement would be an offence, as would taking multiple images of a person, unless it is in the public interest.

In a very timely report, published on 3 November, Her Majesty’s Inspectorate of Constabulary warned that some forces risk being overwhelmed by the volume of digital evidence being collected. It said that there was a significant shortfall in digital skills in the police and unacceptable delays in fulfilling basic tasks such as getting data off mobile phones. It also noted that some forces were not capable of dealing with the amount of digital evidence being gathered, especially in cases such as harassment, sexting and serious domestic abuse. This is a worrying state of affairs and supports the urgent need for comprehensive digital training for all police officers.

I now turn to the extent and type of digital crime. According to the Digital-Trust, digital abuse is rising steeply as a result of five identifiable factors. First, there is the increased use of technology at work and for social interaction and entertainment. Secondly, ever-increasing technological complexity results in increased risks. Thirdly, technology has become too intricate for victims to recognise the threats and know how to respond. Fourthly, surveillance technology has been consumerised and is available to abusers. Finally, the volume and speed of change makes it difficult for individuals, organisations and, indeed, the criminal justice system to react in a timely fashion.

Many types of behaviour are seen in digital abuse, including, first, unwanted communications by phone, text, emails, electronic messaging and social media; secondly, intimidation, including the posting of threats of physical violence and humiliating victims by posting explicit photographs; thirdly, grooming, using online information to groom a victim financially or sexually; and fourthly, surveillance, illegally accessing accounts or using computer technology to monitor movements, conversations and contacts. The phenomenal growth of online crime threatens to overwhelm those who may be expected to move against the perpetrators. There is a pressing need to step up action, and the authorities need the law to facilitate and support the initiatives which are now urgently needed. I beg to move.

[Lord Ponsonby of Shulbrede]

My Lords, I rise to support the noble Lord, Lord Wigley, who has made almost all the points I was going to make. I am very conscious that there has been a large and ongoing investment by government to address the changing nature of digital crime. Metropolitan Police officers now routinely wear body cameras, we have large investments in data collection and the presentation of data in courts, and the CPS is grappling with the changing nature of crime. This is a massive amount of investment, and a massive amount of data has to be handled to go through the court process properly.

I want to make a point that is slightly different from the one made by the noble Lord, Lord Wigley. In my experience, digital is also changing the nature of crime in the domestic context. I have seen films of police officers going into houses where there is a domestic dispute. The situation is very stark and is seen immediately. I suggest that digital makes it much more likely that there is an early guilty plea in such cases. The whole context of crime is changing—not just digital crime but the way more traditional crimes are perceived and the likely conviction rates of those crimes. I support the amendment.