Police, Crime, Sentencing and Courts Bill (Third sitting)

Victoria Atkins Excerpts

Committee stage
Thursday 20th May 2021 Public Bill Committees

[Alex Cunningham]

Thank you very much for that. I think you have covered everything that I needed to cover.

[The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)]

Q Dame Vera, I want to roll back and put this set of clauses in context. Everybody acknowledges that there is a significant problem with the trust of victims of sexual violence in particular when it comes to the seizing of phones and digital evidence. There have been recent cases that we have heard about. In consequence, the Government have an ongoing end-to-end rape review, which is looking at every single stage of the criminal justice system. Following the last question, I would not for a moment want colleagues to think that this Bill is the Government’s answer to addressing the real and keenly felt concerns of rape victims and other victims of sexual violence.

On the point about digital divides, do you accept that there is a need to clarify the law on this? At the moment, we have the Criminal Procedure and Investigations Act 1996 and we have the Attorney General’s new guidelines, but presumably you accept that there is a need to set a framework in law in order to help and protect victims, and to protect the right of a free trial under article 6 of the Human Rights Act 1998?

Dame Vera Baird: I think national legislation to clarify the law about this is imperative, but it is just not this national legislation.

[Victoria Atkins]

Q Okay. Within that context, we have to bear in mind the Criminal Procedure and Investigations Act 1996 and the Data Protection Act 2018. Do you accept that?

Dame Vera Baird: Yes, of course we have to do so. I am not sure you will be doing that with this power. I think there is a real human rights challenge here already, and I am pretty satisfied that there will be data protection challenges too. Yes, of course data protection is the law and it is important. I do not think this fulfils all your obligations under that either.

[Victoria Atkins]

Q All right. Clause 36(5)(a) sets out the conditions under which the power may be exercised—namely, that an “authorised person”, as defined elsewhere in the Bill, must reasonably believes

“that information stored on the electronic device is relevant to a purpose within subsection (2)”.

That wording of course comes from the 1996 Act, doesn’t it?

Dame Vera Baird: I do not know which it comes from, but “relevant” is no good, Minister. “Relevant” is not a reasonable line of inquiry. Somebody who comes across the letter from the lady in Northumbria might think that is relevant. I do not think that finding it is a reasonable line of inquiry. A reasonable line of inquiry in the CPIA is the right test, and this is the wrong test.

[Victoria Atkins]

Q All right, but do you accept that there is a test of relevance in terms of disclosure under the 1996 Act?

Dame Vera Baird: There is a test of a reasonable line of inquiry under the CPIA. That is the test, and that is very much a narrower test than the one in the proposed clauses. I have to say, because we narrowed it from relevance down to a reasonable line of inquiry in our amendments, the police were happy to accept that, so I am not sure why the Home Office wants it to be wider than the police want it to be.

[Victoria Atkins]

Q I will come back to that. The test in clause 36(5)(b) is that the authorised person must be

“satisfied that exercise of the power is necessary and proportionate”.

Again, that wording applies across the board in terms of criminal proceedings. Is that correct?

Dame Vera Baird: I have come across the terminology before, but it is highly subjective. Insufficient detail is gone into for it to have the meaning that it is important to have. I think it is a very good thing, if I may say so, Minister, that you have accepted that the backdrop against which we approach these clauses is a very, very undesirable one, where confidence has been lost by over-demands on vulnerable complainants’ personal data. It is hugely important therefore to put into the legislation every protection that can be put in, for fairness. Remember, there is a massive power imbalance in the relationship at the time of the requests—

[Victoria Atkins]

Q I have long accepted that, Dame Vera. That is why we have the end-to-end rape review, which is ongoing, as you know. The reason I ask that is because one would not want the Committee to think that these clauses are the only measures being taken to secure the framework for extraction of digital devices. You will accept that the clauses set out that a statutory code of practice will accompany the Bill.

The codes of practice under the Police and Criminal Evidence Act 1984, for example, are vital codes of practice that are relied on in court. If a police officer does not meet the standards expected by that code when interviewing suspects, for example—if there is a significant breach—the entire prosecution can fall. Do you accept that although we are rightly looking at the wording of the clauses, just focusing on those would not give the full picture? We also need to consider the importance that the code of practice will have. It will deal with some of the practice points that you have raised.

Dame Vera Baird: I do not think it is the right analogy to compare any code of practice. Let me tell you, the code of practice under this is invisible or non-existent. Codes of practice are discussed though they are the answer to it all. The first thing to say is that they do not have the power of statute, and if the legislation goes through as it is now, that is what the police will likely rely on. Of course a statutory code of practice under PACE has the consequences that you described, Minister, but that is because if you break the code of practice under PACE, it impacts on the defendant. The defendant can say, “Oh, that’s been done unfairly and jeopardised my fair trial,” and a breach can even be the end of a prosecution. There is absolutely no power for a rape complainant to have a similar resolution of a breach of any code of practice in this legislation. They can breach the codes of practice until they are blue in the face, and it does not make any difference to the trial.

[Victoria Atkins]

But you accept—

Dame Vera Baird: That is a difference in power, is it not? That is an important point.

[Victoria Atkins]

Q No, it is a proper analogy, because they are both statutory codes of practice. Of course the police will have to abide by those codes of practice and will be held to account by the Victims’ Commissioner and others if they are seen to be failing those codes.

Dame Vera Baird: I am sure you accept the difference, though, Minister—

[Victoria Atkins]

No—

Dame Vera Baird: There is no possible remedy or solution for the complainant that is analogous to the outright acquittal that can be a consequence of breaching the PACE code of practice, because that is about a defendant. This is about a complainant. What do you suggest would be the solution if the code of practice were breached in my case of rape and too much documentation was taken and disclosed? What is my remedy?

[Victoria Atkins]

Q The police force or the CPS are accountable for their conduct under the codes of practice. That is why the code of practice is in the Bill, not least because putting the sort of detail you seem to be suggesting in the Bill is not as responsive and flexible as putting it into a code of practice—by definition, changing primary legislation is not as responsive or flexible. These clauses are not the only factors to bear in mind when looking at the overall issue of digital devices. I will move on—

Dame Vera Baird: I would like to answer that, if I can. They are the only thing, because there is no sign of a code of practice. There is no draft code of practice at all. When I ask what my remedy would be as a rape complainant, you say to me that the police will be accountable, but how will they be accountable? It is not a crime and it is not a tort to break this code of practice, so what is the remedy if it is broken? It is not an analogy with the PACE code of practice. Do not over-rely on this code of practice, Minister. You and I share the aim of protecting complainants. Do not over-rely on a code of practice no one has ever seen and that does not have statutory form.

[Victoria Atkins]

Q This will not be operating in a vacuum. The police are of course accountable to police and crime commissioners, as you know as a former commissioner. The police are also accountable to Her Majesty’s inspectorate of constabulary, and the police forces have their individual complaint processes. There are ways of accountability. I will move on—

Dame Vera Baird: If those routes really do exist, have they been working, Minister? I do not remember any complainant being able to come to me as a PCC and complain about an individual case. Let’s face it: the dire situation where the public, or at least this sector of them, have lost confidence in the police has occurred at the time when all of those bodies that can call them to account have been in play, and they have not called them to account.

[Victoria Atkins]

Q There are many aspects to public confidence, but that is why we are addressing this one aspect of it in the Bill as part of the Government’s overall work on the rape review and, as you said yourself, the victims law.

I will move on to unauthorised encampments. You were asked about the impact and you fairly conceded that residents can be victims in the context of unauthorised encampments. Clause 61 sets out the offence. The conditions that are laid down for the alleged commission of an offence include factors such as “significant damage”, “significant disruption” and “significant distress”. With your focus on antisocial behaviour, presumably you welcome the focus on those unauthorised encampments that result in those sorts of distressing conditions?

Dame Vera Baird: I would not want anyone to suffer from any of those, but causing damage—I do not know what that is. If you are on an unauthorised encampment and you have not got a lavatory so you dig a latrine, is that causing damage to the field? I think it depends how it is defined. I really cannot go much further than saying that unless there is proper provision of authorised encampments, you have two sets of victims. I quite agree with you that the people who are distressed, damaged or whatever by an unauthorised encampment are victims of that. There is no doubt of it—you have made your point—but I want you to take into account the difficulty of finding somewhere to camp in a lot of places, which forces people into an unlawful place. Of course, damage is not justifiable, but that is a factor to consider. I was so pleased when the NPCC appreciated that as well.

[Victoria Atkins]

So do you see it as inevitable—

[The Chair]

Order. I am afraid that brings us to the end of the time allotted for the Committee to ask questions. I thank the witness again for her evidence.