Criminal Justice Bill (Eighth sitting)

Peter Dowd Excerpts

Committee stage
Tuesday 16th January 2024 Public Bill Committees

[Alex Norris]

The second point and the tone of the Minister’s contribution certainly give me a degree of comfort. The first point does not give me any comfort at all. The line that he quoted, which provides that the Secretary of State

“may prescribe only such purposes and circumstances as are related to policing or law enforcement”,

is a landing zone as wide as could possibly be needed to give police access to the DVLA database for all sorts of things. I will get on to that shortly. I would be delighted if the scenarios I am about to talk about are not what the Government intend, or even silly ones. I do not think that is the case, but I will be the gladdest person in the room if it is.

At the moment, I think the public would think there are sensible uses of the data, such as to double-check the last known addresses of a wanted person. Taken in extremis, however, the clause could mean that all the photos on the DVLA database become fair game for law enforcement. There are 41.2 million vehicles registered with the DVLA. We are talking about the data of tens of millions of people and, crucially, their photographs. The landing zone that I described under subsection (2) of proposed new section 71 means that someone’s photo could be used for a huge range of things.

Starting from where we think the public would be on this, the public expect and know that retrospective facial recognition is already used routinely. If a person commits a crime, they know that their custody photo will be held on file and that, if they are convicted, it could be held for six to 10 years, depending on the nature of the offence. It is a tale as old as the technology that the photo might subsequently be checked against footage relating to another crime and used for its detection. Similarly, if someone commits an act that means that their DNA is kept on file, that might be used in relation to unsolved crimes that happened in the past or to tackle offending in the future. All that is sensible.

On both fronts, we start in a sensible place, with the use of the DVLA database for cross-references to help detect crime, and the use of photos of offenders that lie on file to detect crime. The risk comes when we mix those two sensible principles.

[Peter Dowd (Bootle) (Lab)]

I have listened carefully to my hon. Friend. Does he agree that there is a danger that we will get mission creep and, more importantly, that the public will see it as such? As time moves on, we will get another bit, another bit and another bit.

[Alex Norris]

I absolutely agree, and that is exactly the point I am about to make. It is a legitimate anxiety. If that is wrong and I am somehow being conspiratorial, albeit it is not my nature, the Minister can tell me and that would give me a degree of comfort, but I think, and it has been expressed to me by interest groups, that there is a legitimate anxiety that the clause could mean that the police will access tens of millions of driver photos to solve crimes.

There is a problem with that on two fronts. First, we have the question whether that is a fair balance between individual liberty and collective safety. If that is what the Government want, we need to have that debate much more clearly before we get to these specifics. Secondly, certainly for the photos that are on file today, probably each one of us in the room, Members and beyond, is on that database, but none of us will have given our photograph with informed consent, knowing they were going to be used for the proposed purpose. That is a huge problem, not least because it is a kind of coercion. I would still give my photo on that basis, because the ability to drive is fundamental to my needs—certainly for work, never mind family life. But, again, it is a form of state coercion, rather than something that would necessarily be the right thing to do. Many people—many of my constituents, I know—would not consent on that basis. We live in an age of high-profile conspiracy theories and those who make an industry of them, and we should not give grist to the mill of yet another one.

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[Alex Norris]

There is a significant difference between what the Minister talks about, which is using, on an individual basis, information that is available to cross-reference—perhaps to deal with known aliases or known addresses—and where this could go. I mean a broad-scale use of surveillance, seemingly without any guardrails, that would essentially allow tens of millions—I think it is in the 40-something millions—of photos to be put on essentially the same footing as photos from the custody suite.

[Peter Dowd]

I heard the Minister’s intervention, but I am increasingly concerned about the point I made about mission creep and proportionality. That is what we must bear in mind. Would my hon. Friend agree? This partly goes back to amendments 61, 58 and 59: let us be as precise and specific as we can—in fact, let us have some control rather than this mission creep, and always have human rights and the question of proportionality in the back of our minds.

[Alex Norris]

“Proportionality” is the exact word here. It is about finding balance, as I say, between individual liberty and our collective safety. If we are saying that, in all instances where the police have a photo of a possible offender, we have complete comfort about their searching the entire DVLA database to try and identify that person—well, that is a very significant change. I would argue strongly that that is different from saying, “Well, we think we might know who it is; let’s apply for the driving licence of an individual.” I think that the public would see a big difference.

The issue becomes even more important given the pace of technological change; we have been talking about retrospective facial recognition technologies here, but live facial recognition technologies are developing at breakneck speed: cameras can scan huge crowds of people, check who they are and flag persons of concern. The Minister, I think, has a degree of enthusiasm for that technology; it is a plank of his plans around violence against retail workers, and shop theft more widely.

I recently visited South Wales police because I wanted to understand the use of this technology. With your indulgence, Ms Bardell, I will take this opportunity to put on the record my thanks to the police and crime commissioner for South Wales, Alun Michael, for his work. He is stepping down from public office at May’s elections after more than half a century in different posts. He has sat in the chair that I occupy; he has sat in the chair that the Minister occupies; he has sat in Cabinet, and he is one of the few PCCs to have served the entire 12 years of that post’s existence. His is a life of extraordinary public service to the UK and Wales, and to Cardiff, and we have been very lucky to have him.

As I was saying, South Wales police is very much in the vanguard of facial recognition technology. In a recent oral questions, the Minister graciously made reference to the work of South Wales police in this area, particularly the oversight that it is doing through the PCC’s office, which may well be a good model—in fact, it very much is. However, it is not without controversy, partly because it is in the vanguard and that sort of disruption is generating significant public interest.

There was quite a bit of public debate around one of the events in question: a Beyoncé concert at the Principality Stadium. That was a huge event. It had incredible hype; people really did everything to try to get tickets. Live facial recognition technology was used at that concert. The police advertised it, defined a public watch list, and said, “We are looking for anyone who is a known terrorist, in light of the Manchester bombing, and for paedophiles, in view of the likely attendees of the concert.” That probably finds the right balance: the public are informed and there is a defined watch list. There is a degree of common sense there.

As I said, what South Wales police have put in place, and what I think we are going to see across the country, is a model where we have civilian balance to the operational independence of the police and where the public’s representative, as we have in England and Wales in the form of police and crime commissioners, is able to know what is happening and to have public oversight. However, there is a real risk around how that sort of technology could be combined with the powers in this clause. The use of live facial recognition technologies could be combined with the entire DVLA photo database for the purposes of live blanket surveillance. I do not think that is what the Government want, but I do think that we have to hear that they do not. Relying on Henry VIII powers makes it even worse.

It is welcome that, according to proposed new section 71A of the Criminal Justice and Court Services Act 2000, a code of practice will be issued. That is really important, and speaks to my amendment 60, which is a pretty basic attempt to put some degree of parliamentary guardrail on to this new technology and its use in law enforcement. It states that once the Bill has received Royal Assent, a report on its usage must be published by the Secretary of State on an annual basis. I will be honest: I am not precious about the form that that should take, but I am precious about technology that has moved at great pace and with which there has been very little parliamentary engagement at all.

Stronger guardrails should be set. We have to be really cautious about other changes we might make, such as those in clause 21, that would mean that a significant database could be used for proactive surveillance of people who have never done anything other than apply for a provisional licence. That point could be held, but we would have to argue with the public and build public confidence around it. We would have to be shown the evidence for the effectiveness and the operational cases. I do not think the Government have done that.

My hope is that I am taking the issue far beyond what the Government intend. I will be very glad if that is the case. Part of the problem is that we are relying on regulations when we have no idea what their form will be. I stop at this point. I hope the Minister will be able to give the Committee some comfort.

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[Peter Dowd]

We can all come up with our examples, whether they be of rapists or a missing person, for example—who would not want to find a missing person who might have been missing for years and who we are trying to find? That is not the issue. We have used DNA in the past, and we all think it is wonderful, but it is used within parameters. Yes, let us have CCTV and facial recognition, but they have to be used within a certain context.

Then there is body-worn video and the move towards using algorithms in the detection and prevention of crime —and, in some places, the deterrence of crime—and also the issues around AI. I do not think there is a problem with that at all, but it has to be set in a context. We should not take a piecemeal approach to the whole question of technology. We are dealing with a vast area, and this must be set in that wider context. Perhaps the Minister can go off and think this through, outside this Criminal Justice Bill, and set in process a review of the whole question of artificial intelligence and so on, as part of crime reduction, crime prevention and crime detection.

[Chris Philp]

The hon. Gentleman is making a very reasonable point. In fact, I was going to come on to it later, but I will address it now. As for the current deployments of live facial recognition in places such as Wales, Croydon, Southend, Chelmsford, Soho and elsewhere, a framework was set out by the case of Bridges v. South Wales Police. There is authorised professional practice from the College, but that framework is there. The hon. Gentleman is, however, making the valid point that it would be useful to set out—outside of this Committee, as he said—a broader strategy, framework or explanation of how the technology can be used. That is not just the case for live facial recognition, but also for the retrospective recognition, which I will come on to in a minute. It is all set out, and we could perhaps debate and discuss it in the round.

The hon. Gentleman is making a reasonable point about something that I had in mind to do in the relatively near future. That is something that I am working on in the Home Office, and his suggestion has spurred me on to expedite that. We want to have this set out transparently and comprehensively so that everybody can look at it and know where they stand. It has actually been done in relation to live facial recognition, but it would be helpful to set it out in a broader context.

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[Laura Farris]

I thank my hon. Friend for his sensible question; I will write to him. One of the points I have clarified is that prison officers understand the use of reasonable force, because they have to use it at other times, and it is well understood by the police. “Reasonable force” has a meaning in context—it is not just a judgment call to be made on the day. However, that is a good point, and it deserves a response.

Returning to my remarks, in exercising their discretion a judge may decide not to order an individual to attend if they may cause significant disruption in court or further distress to victims, or if there is a significant mental health complaint that may prevent their attendance. Courts will also be required to consult with young offending teams before any decision is made on a child offender. I recognise that the provisions may not guarantee that every offender will end up attending their sentencing hearing.

[Peter Dowd]

I am unsure whether the Minister has considered the issue in relation to the victims charter. The victim’s family could be in court. Is there the potential, as part of the victims charter, to consult the family—

[Carolyn Harris (Swansea East) (Lab)]

Or the victim.

[Peter Dowd]

Yes—to consult the victim or the victim’s family on that issue? The victim or their family could be sat there, and the person could be brought in and be challenging, difficult and so on. As part of victims’ rights, would the Minister consider giving consideration to the consultation of the victim or their family in those situations?

[Laura Farris]

The hon. Gentleman makes a good point. It is generally accepted—this is consistent with the thrust of what we have heard—that it is an affront to the victim’s family when the defendant, who is a ward of the court for the purposes of the criminal proceedings, elects not to attend their sentencing. It has always been presented in one way, but the hon. Gentleman is correct: there is an argument to be made, particularly if the defendant is difficult, disruptive or perhaps politically motivated—[Interruption.] I have been reminded that it is for judges to decide, but the point that the hon. Gentleman makes is that perhaps the victim’s family should be part of that decision-making exercise.

[Peter Dowd]

Yes, I think it is important that families be consulted throughout the process and beyond it. The judge has discretion, but the victim should have the right to be consulted. What the judge does is a completely different matter, but the families or the victim should be consulted if appropriate.

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[Laura Farris]

I will come back to that. For the purposes of this afternoon’s Public Bill Committee, the issue is not whether the courts have an adequate understanding of grooming.

I will give my experience. I was appointed as counsel to the independent inquiry into child sexual abuse. I worked on that inquiry from 2016 to 2017, and it is on my Register of Members’ Financial Interests. I was also instructed by a Telford victim in a public law challenge—not a criminal law challenge in the High Court—against the local authority in relation to its breaches of various duties to her. So I have direct familiarity with cases of this nature.

There are many, many issues with this kind of offence. I think that the courts understand child sexual exploitation and grooming gangs and that it is left deliberately loose in law so that a range of behaviours can be encompassed. The one that the public are most familiar with is sexual exploitation, but there are other forms of grooming that go much wider and where there is no sexual element. It is right that that flexibility exists so that somebody is not outside the possibility of being a victim of a grooming offence.

[Peter Dowd]

This is an incredibly complex, difficult, challenging and sensitive subject. A question arises, though, and I will put it to the Minister. There are many definitions of grooming. There are international definitions —legal definitions in other countries—of what grooming is. So while I accept the point the Minister makes about trying to keep it flexible, we have the capacity to easily —if not easily, then as clearly as we can—determine what exploitation or grooming actually is. The work has been done and we have to build upon it. Does the Minister not agree that it is not beyond the wit of this Parliament to try to determine or define what we consider grooming to be? I say that with all of the sensitivity that I can bring.

[Laura Farris]

I thank the hon. Gentleman for his intervention and I promise that I will give some thought to that, but I just wanted to come back to the new clause tabled by the hon. Member for Birmingham, Yardley. This is not about creating a new offence. The treatment that the victim the hon. Lady described was subjected to is already covered by criminal law. This amendment is simply about an aggravating element going into statute in relation to grooming.

As the hon. Lady is well aware, the difference is that we are confining our amendment to the grooming of children for sexual purposes. That is our amendment. We have focused our amendment on that because child sexual exploitation by grooming gangs has been so problematic and so serious.

I will go back to some of the examples that the hon. Lady gave, although it is very difficult to respond to an individual’s case in the context of a Public Bill Committee, because I do not know all the details. I think that the hon. Lady said that the person was 27 and had been groomed since the age of 13. The vast part of what she suffered in the early days would be captured by this provision, because she was a child. I appreciate what the hon. Lady said about the continuing grooming—I think she said that that person is still being groomed today.

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[Laura Farris]

I will keep my remarks concise. Let us look at adult sexual exploitation—I accept, by the way, the breadth of the problem without reservation. First, the adult, simply by virtue of being an adult, has more ability to vocalise their experience than a child does. Secondly, there are more forms of exploitation—for example, forced labour or human trafficking, both of which overlapped with what the hon. Lady described. The case of children who are victims of grooming gangs is specific, and it is also a direct thing that we dealt with. The clause is directed just at children.

[Peter Dowd]

I hear the point that the Minister makes about the ability to vocalise. I gently challenge her on that one, however, because people who have been abused and exploited for many years, from childhood through, also find it incredibly difficult to vocalise. There is no question about that whatever. That is not to dismiss anything she says, but it is to recognise that vocalisation does not start at 18, 20 or 21; it might never, ever appear, given the nature of the exploitation and abuse that has happened to that particular person. I ask her just to think on that particular issue, not necessarily to respond now, but to put it into the mix.

[Laura Farris]

I have to take this back to what it is. It is not about creating an offence. It is not about saying, “If you sexually exploit a child, you’ve committed a criminal offence, but if you sexually exploit an adult woman, you haven’t.” That is not what this is about, and I do not want to get lost in that. The hon. Member for Birmingham, Yardley described a series of offences that, if they achieved convictions, would be category A offences. They are unbelievably serious offences. We are not denying that.

The clause, however, is directed at grooming gangs as they relate to children. The purpose of the clause is to capture the wider membership of the grooming gangs so that even if people did not directly groom the victim, they are on the hook for the same aggravation. It is to bring in the entirety of the grooming gang. As I said, that is usually defined by the CPS in terms of how it will choose to prosecute a case. That can be very wide indeed. It can bring hundreds to court, or certainly tens, but that is a decision for the CPS. The clause potentially brings all gang members within the scope of the aggravation, simply because they have been identified as part of the gang, if one of those victims has been groomed. That is the purpose of the clause.