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Victims of Crime: Mobile Phone Data

Volume 797: debated on Monday 29 April 2019


My Lords, with the leave of the House, I will repeat a response to an Urgent Question given by my right honourable friend the Minister for Policing and the Fire Service in the other place:

“There is widespread recognition that disclosure in criminal cases must be improved. Disclosure of evidence is crucial for ensuring the public’s confidence in the police and in our criminal justice system.

It is important to note that police forces have been using forms to request victims’ consent to review mobile phones in investigations—including sexual assault cases—for some time. What is new is the new national form that was introduced today, which attempts to distil current best practice to replace the individual versions of the 43 forces, ensuring that there is consistency and clarity for complainants. That is the intention of the police.

In considering seeking such consent, the police must consider what is a reasonable line of inquiry and their approach must avoid unnecessary intrusion into a complainant’s personal life.

In July 2018 the Director of Public Prosecutions issued advice on investigating communications evidence, making it clear that examination of mobile telephones of complainants is not something that should be pursued as a matter of course and, where it is pursued, the level of extraction should be proportionate.

This Government have made protecting women and girls from violence and supporting victims and survivors of sexual violence a key priority, and it is encouraging that more victims than ever before have the confidence to come forward.

It is surely critical that victims are not deterred from seeking justice by a perception about how their personal information is handled. They can and should expect nothing less than that it will be dealt with in a way that is consistent with both their right to privacy and the interests of justice.

This is clearly a complex area. While disclosure is an important component of the criminal justice system to ensure a fair trial, the police have acknowledged that the use of personal data in criminal investigations is a source of anxiety, and will continue to work with victim groups and the Information Commissioner’s Office to ensure that their approach to this issue offers the necessary—if difficult—balance between the requirement for reasonable lines of inquiry and the victim’s right to privacy.

I can assure the House that the Government will continue to work with partners in the criminal justice system to deliver the recommendations in the Attorney-General’s review, designed to improve the efficiency and effectiveness of disclosure”.

My Lords, I am incredibly grateful to the Minister for repeating that Statement. However, I hope she will appreciate that widespread concern about reporting using this new form forces me to press her a little further on the detailed commitment from the Government. The anxiety is not with consent being sought in a targeted manner in particular cases where the electronic interaction between a complainant and a suspect is relevant to an investigation. As reported by a number of victims—the noble Baroness, Lady Newlove, is in her place, and no doubt we will hear from her in a moment to bear this out—the concern is that this practice is too routine and the trawling of data too blanket. If I am right about that, and if those concerns are borne out, that would put the authorities and the Government in breach of complainants’ fundamental rights under Articles 3, 6 and 8 of the European Convention. This is why I press the Minister.

Forms are no substitute for resources: that is, better trained police officers and more of them; victim support; and qualified lawyers to handle disclosure in the criminal justice system. I hope the Government are listening, and that the Minister might agree.

Where I do agree with the noble Baroness is that the victims should be at the heart of all that we do, and there should be consistency across the piece when using the forms to apply for consent to gather evidence. I think she would agree that 43 different forms across different forces probably is not as acceptable as one standardised form to ask for consent to gather evidence. I know she will agree that it is of absolute importance that personal information of complainants who report sexual offences is, as I said in the Statement, treated in a way that is both consistent with their right to privacy and in the interests of justice. That is what we seek for victims: that justice be served.

As for trawling through phones—to use her term—the CPS access guidance is clear that requests for access to information held by third parties on digital devices must be a reasonable line of inquiry, justified by the circumstances of the individual case. It should not be undertaken routinely in every case, and should not be used as a matter of course.

The noble Baroness asked specifically about funding for both victims and the police. In 2018-19, the MoJ is providing £12.5 million of funding specifically for services for victims and survivors of sexual violence, and £4.7 million to PCCs to deliver local support services for victims of CSA across England and Wales.

My Lords, while we accept that this is a complex issue, the facts are undeniable. It is estimated that only one in five rapes is reported to the police, with fewer than two in every 100 cases reported to the police resulting in a prosecution, let alone a conviction. This development is not going to help. While there may be an argument in some cases where consent is at issue—as the noble Baroness, Lady Chakrabarti, said—there can be no justification for a blanket requirement. What consultation has taken place with women’s groups, such as the End Violence Against Women Coalition, about the potential impact such a requirement will have on the willingness of rape victims to come forward or to continue with a prosecution once the rape is reported to police?

The noble Lord strikes the balance of where we should be—in other words, encouraging women to come forward and, when they do, feeling that their case will be dealt with properly through the criminal justice system. I hope I can comfort him by saying that it is not a blanket requirement. On consultation, the groups that were invited to comment on the form included Rape Crisis, the End Violence Against Women Coalition, the Survivors Trust and Galop, as were Dame Vera Baird and the ICO. The ICO has an ongoing investigation into how this data is used and the CPS has committed to reviewing the forms and the process in the light of that.

My Lords, I have had quite a busy day on this subject and I have a busy day tomorrow on anti-social behaviour. I have argued that, when making such huge decisions, fairness requires that the victims must be offered free access to independent legal advice. Where there are disputes between prosecutors and victims about what should be disclosed, the final decision should be taken by a judge and not by front-line police officers or prosecutors.

In the work that I do as Victims’ Commissioner I would like to count on one hand how many prosecutors actually engage with victims, an issue I used to work on with the previous Director of Public Prosecutions. This feels very much a process for the police and the criminal justice legal system; it is not for victims. Under the process it creates, where victims are scared they will not come forward.

It used to be called the Stafford statement but this is a new form and it is nine pages long. When you ask someone to sign this statement, no matter at what stage of the process, they will be traumatised and going through the harassment of trying to do the right thing for justice. It is not right to ask someone to sign this document without them having legal representation, especially when it says in bold print:

“If data obtained from your device has been or will be shown to the suspect/defendant, either as evidence or as disclosed unused material then we will inform you of this”.

As it is, communication to victims is appalling—we do not even get victims’ personal statements produced—and I would like the Government to work harder, especially as the office of the Victims’ Commissioner had no idea what this form looked like or contained. I was told by a journalist from the Telegraph. If we do not realise what the Victims’ Commissioner can do to support victims, what does that say about the process to make the victims we expect to come forward feel safe?

I pay tribute to the noble Baroness and all that she does for victims. I concur with her that at the point victims are asked to sign a form they may be in a highly traumatised state. This process is nothing new—it has not just happened today—but the standardised form is new. However, I take on board the fact that victims and potential victims are in a vulnerable state when they are asked to sign the form. There is nothing to preclude a victim having a legal representative with them at the time they are asked to do this. However, I take the noble Baroness’s views on board and, as I have said, the CPS has undertaken to review the form.

My Lords, I am concerned about these proposals for two reasons. First, the major cause of some of the problems is demand. We have had far more reporting of sexual offences over the past few years, there is a greater availability of devices for recording digital data and there is far more social networking. There is a huge amount of information to trawl through and, as the noble Baroness, Lady Chakrabarti, said, it is no good giving even more access to this type of material if the police do not have the skills and resources to act on it. It would have been a good idea to talk about that alongside this proposal. Although resources have been going to the police, they have not been in this particular area.

More fundamentally, I am less relaxed than some noble Lords who have spoken about whether it is okay to trawl, as that is how it will be seen, through someone’s material. It will be seen as an intrusion into the privacy of the victim, even though I am sure it is not intended in that way. We have got to the stage where a person is now entitled to withdraw consent at the point of the sexual offence. It does not matter about sexual history or what happens after the event. Many of the offences where disclosure has been an issue have been about things and communications which have been shared after the event. I wonder, as a point of principle, why it is relevant to search someone’s communications before or after. Surely it is the event and the consent. We are in danger of moving away from that fundamental principle, which has been fought for an awful lot over the past 20 years, and this seems to be a backwards step.

I know the noble and learned Lord is desperate to get in, but I shall answer the question asked by the noble Lord, Lord Hogan-Howe, first. I totally take his point about demand and the different ways of communicating and therefore the new demands on the police, the training what they have on to do and the resources that they need to do it.

I have talked about the money given to PCCs and the announcement of the quite significant increase in funding to the police going forward. The noble Lord made an important point about withdrawing consent and how we have become so much more attuned to what consent means, but I take his point that the police need to have the resources in place to deal with this as well as training.