Data Retention and Investigatory Powers Bill

Simon Reevell Excerpts

Tuesday 15th July 2014 Commons Chamber

[Simon Reevell (Dewsbury) (Con)]

I accept that the timing of the Bill is unfortunate. This is the second time in three years that a Court case that was known about well in advance has produced a result that has caught the Government flat-footed and necessitated emergency legislation. It is also unfortunate that this is being done so quickly, because there is great cynicism towards the state among the general public, and dealing with these matters in this way does nothing to address that problem. However, it is the content of the Bill, rather than the timing, that is the central issue.

The content of the Bill maintains existing powers, and those powers are important where it counts, which is at the sharp end of these things; at the criminal trial of the person accused of serious criminal activity, where the sort of evidence that these powers produces can mean the difference between conviction and acquittal. I know that because I prosecute those cases and have used the evidence produced as a result of these powers.

It is worth bearing in mind the alternative. It is worth thinking about what would happen if it was not possible to have access to that sort of information. Imagine two alternatives. First, consider an individual who is stopped by the police and has his telephone on him. Nobody would suggest that his telephone should not be looked at. Nobody would suggest that it should not be plugged into a computer so that the content can be interrogated. Nobody would suggest that, if his telephone was known to be in his house, the police should not be able to go through his front door, break the lock on a cupboard and retrieve it if that was necessary for the purposes of evidence.

Secondly, consider another individual who has no telephone on him but in whose home the police find a telephone bill. Is the suggestion that they could not use the telephone bill to go to the service provider and see whether they can find the same sort of information that they would have been able to take from the telephone had it been in the individual’s jacket pocket? Is it really being suggested that we should not use technology at all in the investigation and prosecution of serious crime? If that is not being suggested, and there is therefore no difficulty about the use of the technology, the only issue is the extent to which that is fettered by regulation and law, and that is not a matter for this debate, because the Bill is about provisions that already exist.

In serious criminal trials up and down the country today, people are using evidence that deals with the fact of a text message and its content, the fact of a telephone and information that has been retrieved from answerphones, information from social media, and the fact of an e-mail and its content. However, there is a distinction between what can be taken from a computer, if a computer is found, and the data that can be retained and accessed if the hardware is not there, but that is a debate for another day.

As far as the Bill is concerned, its effect, which is to maintain powers that have previously existed, to allow access to data that have previously been accessed and to prosecute people in the same way they have been prosecuted in the past, does not deserve the general challenge that it is receiving from those who simply do not like the idea of retaining data, and the criticism that it somehow opens Pandora’s box as far as privacy is concerned. The idea that the police should be able to identify someone who might become a criminal so that only their data are retained is absurd. The idea that data need be retained for only a short period of time ignores the way in which drugs conspiracies, for example, are investigated, where the drugs are traced from the individual on the street back to the wholesaler, from the wholesaler to the central supplier, and then from the central supplier to the importer. That all takes time, and if the data are not retained for a period, by the time the importer is identified, all their data have gone and the link cannot properly be established.

It is all very well to talk about the importance of privacy—I completely understand and respect those who prioritise that—but there is a conflict between the effective use of data to prosecute serious crime and privacy in the sense that the fact of something or the existence of something will not be made available to law enforcement bodies and a recognition that with that will come an inability on the part of the police and the prosecutor to deliver convictions that, at the moment, go a long way to keeping people safe.

Crime and Courts Bill [Lords]

Simon Reevell Excerpts

Monday 14th January 2013 Commons Chamber

[Simon Reevell (Dewsbury) (Con)]

I shall concentrate on one aspect of the Bill: clause 30, which deals with self-defence and which has been touched on already by my hon. Friend the Member for North West Cambridgeshire (Mr Vara). The clause introduces important practical changes, but I wonder whether it concentrates too much on where things are happening and not enough on what is taking place.

The title of clause 30 is “Use of force in self-defence at place of residence”. It has been suggested that the result of the provision is that an Englishman’s home is his castle, but I wonder whether an individual grappling with a burglar at 2 am is worrying about where he is, rather than what is actually happening. In other words, is his concern the defence of his own person, rather than the defence of his property?

I hope that my examples will demonstrate the importance of that point. Imagine a person who runs a petrol station in a rural area and lives in a house 100 yards away. If he is attacked in his home, the new law will apply, but if he is attacked at the petrol station just as he turns out the lights and is about to lock up, or while he is walking from the petrol station to the house, it will not apply. Someone who works as a night watchman is protected by the new law while they are at home, but when they arrive for work, the provisions will not apply. A vicar is covered if the burglars come to the vicarage, but if he goes to investigate a light in the church at night and behaves in the same way there, the new law does not apply.

We have heard an interesting example involving a farmer. If a farmer hears a noise downstairs in his home and goes to investigate with a shotgun that he has taken from his gun safe in his hand, the new law will apply, but if, after he has been shooting legitimately, he is wandering back through his farmyard and goes to investigate a noise where all his expensive machinery is kept, and is then boxed in by the same people and reacts in the same way as in his home, the proposed law will not protect him.

Leaving aside the obvious point that we are asking people to remember that the law is different depending on whether they are at home, just outside their home or at work, notwithstanding the fact that they could be attacked by the same person in the same way and in the same early hours of the morning, a different test will apply if ever someone who is alleged to have breached the new law by behaving in a certain way is tried alongside someone who dealt with another member of the gang, but happened to do so in an outbuilding. The person who confronted one of the burglars in his home may rely on the new law, but his brother or son who behaved in exactly the same way towards another member of the gang in the outbuilding will not be protected at all.

[Dr Huppert]

The hon. Gentleman is setting out an interesting argument. Does he accept that anyone who uses only proportionate force, given the circumstances as they believe them to be, will always be protected?

[Simon Reevell]

The point of the clause is to put in place the new test, but that test applies only in a dwelling.

The clause gets even more bizarre when we consider proposed new subsection (8B), which deals with the corner shop with a flat above. A shop owner who comes downstairs from the flat and meets a burglar in the shop premises will be fine, because he will be covered by the new definition, but the person who lives next door and has to step out on to the street before going into the shop to start their work there for the day, and who encounters exactly the same circumstances when locking up for the night, will not be covered. If those two people meet the burglar while the premises are open, the shop owner who lives on site has the advantage of the new law, because the shop is part of the building in which their flat is located, but his assistant does not, so a different test will be applied to two people in exactly the same circumstances and encountering exactly the same villainy—and, indeed, the same villain.That cannot be a sensible revision, and the reason is that the focus is on the place of residence as opposed to what the problem really is, which is self-defence.

If this was reconsidered, and if instead of the test relating to the dwelling it related to whether the person was a victim of a criminal enterprise, all the examples I have given would be neutralised, because in all of them the person concerned would have been a victim of a criminal enterprise, whether it was in the church, the petrol station, at home, walking from one to the other, at work as a night watchman or outside as a farmer. If that were the trigger, the person concerned could rely on the new test, but as it is drafted, all those contradictions apply.

Subsection (6) makes it clear that this would not be a retrospective provision, and I understand that, but the amount of publicity generated by this clause means that to a lot of people out there the law has changed already. It would be ridiculous to have somebody waiting to face trial in circumstances where once the legislation was passed, a prosecution would never be brought, because the test would have changed. In whatever form the section appears in the Act, it needs to be introduced as soon as possible so that people do not rely on it before it is available for them to rely upon.

I should have said at the beginning, and so I say at the end, that I draw attention to the fact that, as a practising member of the Bar, I have an interest.

Home Affairs and Justice

Simon Reevell Excerpts

Thursday 10th May 2012 Commons Chamber

[Simon Reevell (Dewsbury) (Con)]

I am grateful for the opportunity to make some observations about three matters raised in yesterday’s Gracious Speech: one proposal that should be straightforward, one that can be made so and one that I fear cannot. I should also declare an interest, as registered, not least because it includes prosecuting in the criminal courts, on which I shall touch.

The proposed offence of drug-driving does, as other Members have already said, actually exist. It is in section (4) of the Road Traffic Act 1988 and has been around since then. It involves

“driving…unfit…through drink or drugs.”

The difficulty is with measuring “unfit”, which according to the Act occurs at the point when

“ability to drive properly is…impaired.”

The test is designed with alcohol in mind, and drugs require a much simpler approach, recognising that possession of alcohol is legal but possession of real problem drugs is not.

Consumption of alcohol is legal, so Parliament sets a level beyond which the assumption is that driving is impaired. Prohibited drugs, which by definition are not legal, need no such tolerance. The possession of such drugs is an offence, so it would be bizarre to have a threshold for driving which was based on impairment. All that is required is a simple law stating that a person in charge of a motor vehicle while in possession of a prohibited substance commits an offence and that possession shall include that which is within the person. The difference between drugs in the pocket and drugs in the bloodstream would be reflected in sentencing and evidence would be obtained using the same technology as is used in compulsory drugs tests carried out for the armed forces and many other organisations. The same defences available to those charged with drink-driving, such as inadvertent consumption, would be available. I hope that the opportunity to deal with the matter simply and effectively will not be missed.

The second area is the proposal to extend powers to access communications. It is worth pausing to consider the current position, in which telephone traffic, the location of telephones, and the record and content of text messages are all used and provide valuable evidence, along with entries from Facebook, e-mail and the like. If the police recover an accused’s computer or telephone, web searching and web content will all feature at trial.

The proposals simply make the matter more straightforward in the context of the developing use of instant communication. It is difficult, if not impossible, to draw any real distinction between the fact of a text message and the fact of an instant message. It would be ridiculous if the difference between the text icon and messaging icon was the difference between the availability of evidence or otherwise. However, the role of messaging and the growth in its use has been huge. If it had been suggested in 2000 that the Regulation of Investigatory Powers Act would compel people to lodge all their private post with the Royal Mail for 12 months, there would have been uproar, but the suggestion for electronic messaging is the 2012 equivalent. It may be necessary, but as the powers change so much so, too, must the safeguards.

Legislation of that type, sold on the back of the fight against paedophiles and terrorists, ends up in the hands of a wide variety of public bodies for which its use is totally disproportionate. If the Government want that significant extension of the scope of the data that they can see, there must be real safeguards such as the identification of specific offences to which the legislation will apply; disclosure to police and security services only; and access via a High Court judge’s order to named officers only. The legislation can be made to work, but there has to be a recognition that although it is a progression, it is a significant progression and safeguards are necessary.

The third area is somewhat different. I am afraid that if it is read carefully, the consultation document on the increased use of closed courts sets out a policy that appears to have at its heart a desire to protect Governments from direct or indirect embarrassment. For decades, there have been examples of Government Departments appearing to regard the public interest as meaning, at least in part, that errors are hidden and omissions denied. Public interest does not mean that.

The proposals are at odds with our principles of open justice, and the justifications for the departure in the consultation document are few and unconvincing. If the British state ensures that it never again colludes with those who kidnap and torture in the name of justice, we will not need to worry about Norwich Pharmacal applications on behalf of the victims.

The measures are not proposed for the criminal courts, of course, but it is to the civil courts that the citizen comes seeking remedy against the state. To cloak those courts in secrecy is good news for those who fear accountability, but not for those who wish to shine light on the extent of their mistreatment by the state. I hope that the recognition that the proposal cannot be extended into the criminal courts, and the realisation that a Minister should not decide whether it should apply in the civil courts, is, in fact, the beginning of an acceptance that the proposal is simply wrong.