Digital Devices: Search Powers at the UK Border

Pauline Latham Excerpts

Tuesday 5th December 2023 Westminster Hall

[Mrs Pauline Latham (Mid Derbyshire) (Con)]

I beg to move,

That this House has considered powers to search digital devices at the UK border.

It is a great pleasure to serve under your chairmanship, Sir Edward. We live in a digital age, but the powers that our law enforcement agencies have do not mirror that. Our Border Force is one agency that cannot carry out its duties properly because of the powers that it was afforded in an analogue age, which have never been updated.

In the United Kingdom, 835,000 individuals represent a sexual risk to children. The proliferation of online child sexual abuse and exploitation material means that more and more children can become victims of sexual predators. One place where our law enforcement agencies can intervene is at the ports of entry into our country. It is there that previously unknown predators can be identified, stopped and prevented from harming our children.

Eighty-five per cent of online child sexual offenders are also hands-on abusers. If Border Force were able to intercept individuals who offend digitally, we could stop children from being abused physically. Border Force is in a unique position to help to tackle this problem and I believe that the Government should afford them the statutory power to search passengers’ digital devices for child sexual abuse and exploitation material. I also wish to see a new offence of obstruction allowed where individuals refusing to co-operate with any reasonable digital searches are prosecuted.

The current scope of the search powers of the UK Border Force is designated by the out-of-date Customs and Excise Management Act 1979. Those powers grant Border Force the power to search the person and the baggage of an individual entering or leaving the United Kingdom in order to detect the import or export of prohibited goods. “Prohibited goods” has a very broad definition under the Act, including child sexual abuse and exploitation material such as images, videos and childlike sex dolls.

Under the Act, the UK Border Force is not required to have reasonable grounds to suspect that an individual entering or leaving this country possesses prohibited goods in order to search them in a port environment. However, the scope of Border Force search powers granted under the Act was conceived for a world that knew nothing about the internet, let alone the smartphone. Almost every passenger who passes through a UK port carries a digital device, be it a smartphone, tablet, laptop or hard drive. Some of these passengers travel with digital child abuse and exploitation materials, images and videos, created in the UK or abroad, on their devices. Under the provisions of that Act, Border Force officers cannot compel a passenger to unlock a digital device, but the police can—not at the Border Force area, but in the country.

If a passenger refuses to unlock their device at the request of Border Force, there is nothing that Border Force can do—nothing at all. The passenger is not committing a criminal offence, because we do not have a criminal offence of obstruction for this circumstance. Border Force must then let the passenger suspected of possessing prohibited goods pass into our country and there are no grounds to arrest them.

As 85% of digital child sexual offenders become hands-on abusers, we need to prevent, at the first possible opportunity, individuals from having the chance to abuse our children. Our Border Force could be part of that arsenal to stop those offenders at our border. Its powers do not extend to being able to require a person to “open” their digital baggage so that a search can be conducted; its existing powers are no longer fit for purpose.

Back in the 1970s, child sexual abuse material would amount to a stack of Polaroid photographs, which border officers could readily detect; they were on paper before the eyes of staff who had suspicions. Today, these images are carried digitally, more often than not behind locks such as passwords, passcodes and encryption software. Under the existing legislative framework, Border Force is unable to penetrate those locks without the passenger’s consent.

I believe that many children could have been saved from predators if Border Force had intercepted them when it had the opportunity. There have been numerous examples where passengers entering or exiting the UK have been travelling alone and without dependants and have been identified as having been in possession of paraphernalia associated with the commission of sexual offences against children. If a passenger travels with toys, lubricants, condoms and children’s underwear, many of which are key indicators of an abuser, it is highly likely that the passenger will be in possession of digital child sexual abuse and exploitation material. With digital search powers, Border Force could arrest the passenger if he possessed such material.

To counteract situations such as I have described, we need to introduce a new criminal offence of wilful obstruction, under which an individual would be prosecuted where he refuses to unlock his digital device so that it can be searched for obscene or indecent material. Such a search can be done in seconds, because the technology already exists—our police have access to it. We would protect more children by granting Border Force that power, as individuals entering our country who pose a sexual threat to children would be arrested as soon as it was discovered that they owned indecent child abuse images on their phones and laptops. Granting Border Force the power I have outlined would enable it to become an active part of the cross-agency response on identifying previously unknown persons who pose a risk of harm to children. Where digital devices seized by Border Force contained new sexual abuse and exploitation material produced by the passenger that had not yet been uploaded to the internet, that material would be prevented from being uploaded to the internet.

Critics might say that that proposal is too intrusive, and I have heard that said. They might also say that there is grave potential for the infringement of an individual’s right to a private life, as set out under article 8 of the Human Rights Act 1998—it does not worry too much about the children who are abused. A standard operating procedure would make sure that a device is inspected by a scan that looked for codes associated with known child abuse files already catalogued and verified by the Home Office. No file would be downloaded by Border Force and no manual inspection of the device would be needed as the scan is driven by code only. As such, there is no possibility of collateral intrusion and an individual’s digital private life being invaded. It is worth noting that a similar power exists for the police in relation to terrorist material under section 7 of the Terrorism Act 2000.

The power I wish to see for Border Force already exists in customs legislation across a number of countries globally, notably New Zealand, which is a member of the Five Eyes intelligence-sharing alliance. New Zealand brought in a similar digital search power under its 2018 customs Act, which introduced a step process for examining devices in furtherance of detecting prohibited materials, including child sexual abuse material, at its borders. The New Zealand process is comparable to that which I believe would work for the UK. Border Force could carry out a step 1 initial scan to indicate the presence, or not, of indecent material. If such material is detected, the UK police or the National Crime Agency would carry out a more intensive step 2 scan.

New Zealand has already begun to see success stories arising from that legislation. New Zealand’s Act also provides a coercive power for the customs force to require access to an electronic device, the breach of which triggers a $5,000 fine and device seizure. I believe that that would be a sensible mechanism for the UK to adopt. Detection at the border is often the starting point for wider investigation, which encompasses identifying further devices and materials held at the suspect’s home address, or contact offences against minors.

Where that power exists in other countries, it is typically without the requirement for reasonable suspicion. However, the power I am seeking will be legally used only when there are reasonable grounds to suspect an individual possesses indecent and obscene material. We would avoid any abuse of that power, as a high burden will be placed on the Border Force ahead of its use.

The UK’s current baseline for detecting individuals representing a risk to children at the UK’s borders is near zero, due to the absence of the ability to verify digital media. They then have to alert the police about their suspicions, and it can take a couple of weeks for the police to trace the individual. There have been cases where the suspected individual has raped two or more young girls before the police have caught up with them.

If Border Force were granted these powers, we would protect children from the lifelong harm of being abused by a sexual predator. Even without immediate prosecutions for possessing child abuse material, the detection of a suspect at the border will enable a management plan to be developed at pace, to mitigate risk to minors with immediate effect. If Border Force had the same access to the devices that the police have, it could scan them very rapidly, pass the suspects on to the police, and we would close that gap and stop those children being raped and abused. For the sake of our children in this country, we need to do that.

I hope that the Minister will agree that it is time to make our Border Force able to tackle digital baggage. Border Force is well placed to detect individuals who pose a sexual risk to our children. For Border Force to perform its duty to protect us now, we must give it those necessary tools, and the tool to search digital devices is one that, frankly, should be given to it today.

[The Parliamentary Under-Secretary of State for the Home Department (Laura Farris)]

It is a pleasure to serve under your chairmanship, Sir Edward. I congratulate my hon. Friend the Member for Mid Derbyshire (Mrs Latham) on securing the debate. I compliment her on her steadfast commitment to the rights of children, and protecting them from sexual exploitation in a range of ways.

I will start with some preliminary observations. First, my hon. Friend presents a compelling case, which I undertake to take back to ministerial colleagues and discuss further. The opportunity represented by inspecting digital devices at the border to increase our ability to tackle and prevent sexual abuse is one that we should take seriously, and it is a key priority for the Government.

I will go through the scale of child sexual abuse, with which she is familiar. The Office for National Statistics estimates that perhaps as many as 7.5% of children in this country will experience some form of sexual abuse before the age of 16. That is the equivalent of just over 3 million people across England and Wales. Reports from the Internet Watch Foundation show that the fastest-growing age group appearing in online child sexual abuse imagery is seven to 10-year-olds, and the prevalence of the most severe forms has more than doubled since 2010. Not only are children being abused, but these moments of their lives are being captured, uploaded on to the internet and essentially frozen in perpetuity. For them, it is a never-ending cycle of abuse from which they will never escape. The files are not even hidden in hard-to-reach parts of the internet; many can be accessed in just three clicks.

My hon. Friend knows how seriously we take child sexual exploitation in this country. We are the Government who implemented the independent inquiry into child sexual abuse. It had a historical focus, but it none the less informs our continuing work.

We also recognise the unique vulnerability of children online. We have tackled that to some extent through the Online Safety Act 2023, which brings companies in scope under legal duties to proactively combat the threat of child sexual abuse on their platforms and to identify, report and remove material. We are now working with the independent regulator Ofcom and the National Crime Agency to implement and operationalise those new powers and duties. However, I do not want to duck my hon. Friend’s wider point, which is that the border provides an important opportunity to apprehend and arrest perpetrators. On occasion, there will be important probative material that would lead a member of Border Force to reasonably suspect that an individual has images on their device that suggest serious criminality and that would give an opportunity for interception.

When people enter or leave our country, we can see where they are going and where they have been. We can create risk profiles based on their movements and note when someone has travelled to multiple locations that are well known for child sex tourism. Under our existing customs powers, Border Force can, without the requirement for reasonable suspicion, check the baggage of people entering and leaving the country. That baggage may include obscene or indecent materials. Notable examples include child and baby-like dolls, which sometime have purpose-built internal sex organs. Specialist Border Force teams are trained to capture this key information, seize materials and arrest where appropriate.

[Mrs Latham]

I recognise what the Minister is saying, but the gap exists and Border Force needs these powers. It can search bags and pockets, and strip-search individuals, but it cannot look at their phones or devices. That is where the gap lies and if we do not close it, there will be even more children being abused on a regular basis.

[Laura Farris]

My hon. Friend has accurately pointed out what looks like a lacuna in the law—where physical objects that may be identified in someone’s baggage indicate something, Border Force simply does not have the power to search devices. I have already undertaken to go back to Ministers and discuss that with them.

I reassure my hon. Friend that the Government remain firmly committed to exploring and exercising all potential levers that can be used to safeguard children and bring offenders to justice. We will continue to work across the whole system to ensure that we are doing all we can to tackle this abhorrent crime, and I thank my hon. Friend again for securing this important debate.

Question put and agreed to.