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Digital Evidence

Volume 805: debated on Monday 7 September 2020


Asked by

To ask Her Majesty’s Government what progress has been made towards finalising a digital evidence policy for access to complainants’ and witnesses’ mobile phones, particularly in relation to cases of alleged rape and sexual assault.

My Lords, cross-government work continues to ensure that complainants and witnesses are asked only to provide what is necessary and proportionate to investigate crime. Policing and the Attorney-General will publish new and updated guidance and the Home Office will work with policing to ensure that this is enabled by appropriate technology and training.

My Lords, there is a sense that, in recent years, police policy in sexual offence cases has swung from favouring one side to favouring the other. Following recent court cases, and the need to review how police deal with digital evidence, can my noble friend and the Home Office officials help ensure that both the alleged victim and the accused have fair and reasonable access to all relevant communications at all times?

I share my noble friend’s sentiment. While rape and sexual assault are devastating and serious crimes, we expect all investigations to be conducted thoroughly and fairly to ensure equal access to justice for both victims and defendants. We are engaging with partners, including the NPCC, the CPS and the College of Policing, to ensure that the police have the appropriate framework, technology and training to strike the right balance between a victim’s right to privacy and reasonable lines of inquiry.

My Lords, the important Question from the noble Lord, Lord Hayward, was one of policy, but there is a prior and more fundamental question of legality. Can the Minister tell the House what is the specific legal foundation for taking rape complainants’ phones? She will know that, to comply with the Convention on Human Rights, this kind of intrusion into personal privacy needs not just to be necessary and proportionate; it has to be in accordance with the law, as well. Mere consent will not work, not least when that consent is given in exchange for the right of something as serious as a rape complaint to be taken forward.

The question of legality is good and pertinent. The ICO found that there is a complex legislative interplay in this area. Officers should be extracting data from victims and witnesses only when it is strictly necessary as part of the investigation. We are working with the police and the CPS to ensure that the proposed framework meets both the requirements of officers to fulfil their lawful duties to pursue all lines of inquiry and to meet their duties of disclosure, as well as providing clarity and transparency about the safeguards and assurances to complainants on their right to privacy.

My Lords, the recent Court of Appeal case makes the issue of examination of the contents of mobile phones and other electronic devices of both complainants and accused far more complex. It is not simply a question of the police investigators receiving additional training. Quite often, the Crown Prosecution Service instructs officers to carry out further investigation. What co-ordination is taking place between the Home Office and the Ministry of Justice to make sure that the training is consistent, both for the police and the CPS, and is in line with that Court of Appeal guidance?

The noble Lord is absolutely right: there has to be consistency and training has to be sufficient across the piece. The CPS, the Home Office and the Ministry of Justice are working through this together. The rape review, led by the Home Office, the Attorney-General’s office and the Ministry of Justice, is considering fully the reasons for a drop in referrals, to which the noble Lord has alluded in the past, and whether the digital disclosure is part of this.

My Lords, earlier in my career, from 1982 to 1988, I was the UK representative on the United Nations Commission on the Status of Women. Interestingly, when we had meetings in Brasilia and in adjoining countries in South America, I was very impressed by how much more real help was available for the victims of such bad situations. I support the view that we should do everything we can to stay ahead of these needs. While I have listened to the various technical points raised, will the Minister bear in mind that this would really help women who are in a very desperate situation?

My noble friend is right that this could indeed help to clinch a case one way or another. At the heart of this is that police and prosecutors have a duty to pursue all reasonable lines of inquiry in every investigation. Increasingly, evidence is coming digitally. In response, the police have to ensure that they are acting in a way that is proportionate, but which also protects privacy, as talked about by the noble Baroness, Lady Chakrabarti.

My Lords, is the Minister aware that Claire Waxman, the London Victims’ Commissioner, has called on the police and the CPS to implement the ICO’s recommendation of introducing a code of practice to prevent excessive and disproportionate requests for data, as real victims could otherwise be deterred from pursuing the justice they deserve? Will she accept recommendation 1 of that report, as she seemed to indicate earlier, that the Government should strengthen the current legislative framework by producing a statutory code, or other equivalent measures, to ensure that the law is sufficiently clear and foreseeable?

The public consultations on the Attorney-General’s Office’s updated disclosure guidance and the Criminal Procedure and Investigations Act code of practice ended recently, and the AGO is seeking to implement them later this year. It will implement the recommendations made in the 2018 disclosure review and the Justice Select Committee report on disclosure published in July 2018.

Will the review which the Minister mentioned consider whether there is a differential effect on women raising complaints because of the way in which digital data is used by police?

I am sure that it will take such things into account, perhaps particularly the anxiety that women might feel when handing over something that is so much more about our lives in general now than just being a phone. That is where the balance must be struck. We want women to come forward. Rape is such an underreported crime, and we want people to come forward, not to feel hindered.

Rape prosecutions have fallen to a record low. Does the Minister think that this is a result of the Met’s intransigence about data grabbing from victims’ phones, the CPS’s ego-driven attempt to improve its conviction rate, or perhaps the Government’s swingeing cuts?

The noble Baroness obviously has firm views about all three areas, but the rape review will consider all the reasons behind recent drops in referrals—they are low anyway—and charges, prosecutions and convictions of rape cases, so the impact of digital disclosure is being considered as part of that.

In the light of the recent legal challenge and the change of stance by the National Police Chiefs’ Council through withdrawing the digital data extraction forms, what early evidence is there that the experience of the legal system for victims of rape is now actually improving?

I cannot stand at the Dispatch Box and say that there is clear evidence. I am saying here that the Government are doing a number of things across a number of areas to make it easier for people to come forward, to be listened to, and for evidence to be gathered in a proportionate and non-intrusive way. Digital extraction is one part of that, but we would not want that to impede a woman’s—or man’s—willingness to come forward.

Sitting suspended.