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Archives: Documents

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Response from Tom Pursglove on the Victims’ Panel

In response to Dame Vera Baird's letter of 28 January 2022, Tom Pursglove MP, Minister for Justice, writes to update on the status of the Victims' Panel.

11 March 2022

Dear Dame Vera,

VICTIMS’ PANEL

Thank you for your letter dated 28th January 2022. I greatly appreciated hearing from you on the work of the Victims’ Panel. Since 2014, the Panel has played an invaluable role in informing victim policy, and I would like to thank you for your role as part of it.

It is a key priority for the Government to amplify victims’ voices and ensure that they are heard. As part of the Victims’ Bill consultation, we carried out wide-ranging engagement directly with victims. This included a series of 19 engagement events with victims which received excellent feedback from stakeholders. More than 50% of official responses to the consultation were also received from victims and members of the public. In addition to this, over the last 2 years the Victim and Witness Silver Command has played a highly effective, much-valued role in representing victims and the sector as we responded to the COVID-19 pandemic.

Continuing this engagement will play a crucial role in developing the Bill as it moves through the parliamentary process. It will also enable me to hear directly from victims on the issues which are most important to them in shaping policy more widely. In support of this goal, I will shortly be writing to Victims’Panel members to announce that we will be re-starting quarterly meetings, with a first meeting to be organised before Easter 2022. I will offer members the opportunity to extend their tenure to 2023, in light of the pause of meetings over the COVID period.

I hope that this is helpful in clarifying my intentions going forward.

Yours sincerely,

Tom Pursglove MP.

Letter to Tom Pursglove MP on the Victims’ Panel

Dame Vera Baird, the Victims' Commissioner, writes to Minister Pursglove requesting an update on plans to reconvene the Victims' Panel, which has lain dormant since 2019.

Tom Pursglove, MP

Parliamentary Under-Secretary of State

Copied to members of the Victims’ Panel

Via email

 28 January 2022

Dear Tom

Victims’ Panel

The Ministry of Justice set up an excellent Victims’ Panel in 2017. The Victims’ Panel brought together those with lived experience of crime and experts in victim support with the objectives of advising and assisting the Ministry of Justice in its aim to support victims within the criminal justice system. In particular to:

  • represent the voice of victims and provide victim focused views on specific areas of the MoJ’s work, including consultations;
  • identification of victims’ issues for the MoJ to consider when developing or implementing policy;
  • monitor the delivery of the Victims Strategy and highlight key themes/issues the Government needs to tackle in line with the vision set out in the Victims Strategy.

The Victims’ Panel is perfectly in line with the aims set out in the Victims’ Bill consultation to amplify victims’ voices and ensure that they are heard. Indeed, the Panel is likely to be helpful to the department in developing the Bill as it moves through the parliamentary process.

The terms of reference for the Panel specify that meetings will take place quarterly. However, the Panel has not met for some time – since 2019. Members understood that this was initially because of challenges presented by COVID. However, as we have all become familiar with online meetings and as restrictions are eased, it is not clear why meetings have not resumed. I have received a number of queries asking when the Panel will restart and, if there are no plans for a future meeting, what will otherwise happen to it.

I have agreed to write on behalf of Panel members, of which I am one, to raise these questions with you. Please can you advise the members of the Victims’ Panel on your plans for taking it forward?

Our usual practice, in the interests of transparency, is to publish our correspondence on our website shortly after sending unless there is reason not to do so.

Kind regards

Dame Vera Baird QC, Victims’ Commissioner for England and Wales

Dame Vera Baird QC

Victims’ Commissioner for England and Wales

Joint letter to the Deputy Prime Minister on the Victims’ Law (definition of a victim)

The Victims' Commissioner and Domestic Abuse Commissioner write to express concern about the narrow definition of a victim used in the Victims' Law consultation.

4 February 2022

Dear Deputy Prime Minister,

Thank you for the opportunity to respond to the consultation on the Victims’ Law and we have each put in a sizeable document which we hope you will find helpful. We would, of course, be more than willing to discuss any part of our submissions with your officials at any time.

Very recently we have appreciated a point which concerns us and which we wanted to draw to your attention.

In the consultation document, ‘Delivering Justice for Victims’, on page 5 at footnote 1, the authors set out the definition of ‘victim’ taken from the Victims’ Code, April 2021 edition. We assume that it is there because it is the definition of victim you would use in the new Act. We want to suggest that instead of using that definition you should instead rely in the new Act on the definition of victim which is in the Domestic Violence Crime and Victims Act 2004 (DVCA). That is, of course, the legislation which requires the Secretary of State to publish a Victims’ Code and we would suggest that the definition in the Code ought always to have been the same as the broader definition in the (DVCA) and that any new version of the Code should revert to that.

In s32 (1) DVCVA 2004 says ‘The Secretary of State must issue a Code of Practice as to the services to be provided to ‘a victim of criminal conduct’

s32(7) DVCA defines criminal conduct that as ‘conduct constituting an offence’

Oddly, though the DVCA requires the Code to be applicable to ‘a victim of conduct constituting an offence’ the current Code itself defines a victim more narrowly as ‘a person who has suffered harm…which was directly caused by a criminal offence.’

It seems to us that the purpose in the wider definition in DVCA is to remove any doubt that a person can be a victim and be entitled to Code rights if they are a victim of criminal conduct even if there is no charge and no other formal way in which the criminal conduct has been recorded as a criminal offence.

Our worry is that if the narrower definition in the current Code is used in the new Act it will risk limiting the applicability of all the provisions in the new Act to ‘a person who has suffered harm…which was directly caused by a criminal offence’

That would be to limit the definition for all of the purposes of the new Act to one which we think you will agree is too narrow. There cannot be a requirement that in order to be eligible for Code rights, a victim who in fact is a victim of conduct constituting an offence has, in some way, to have it rubber stamped as ‘a criminal offence’. In particular, that would appear to be inconsistent with the provision in the DVCA (s.32(6)) which states:

‘in determining whether a person is a victims of criminal conduct for the purposes of this section it is immaterial that no person has been charged with or convicted of an offence in respect of the conduct’.

We see it therefore as crucial that the new Victim’s Law should apply to “a victim of conduct constituting an offence”, as set out in the DVCA.

We would add that the addition of the words ‘a person who has suffered harm’ to the DVCA definition of a victim might be a reassurance to the criminal justice authorities that the definition is not exceptionally wide and at the same time it would be helpful for victims to recognise their entitlements. So, we would overall ask you to consider a definition following the DVCA as follows: ‘A victim is a person who has suffered harm as a result of conduct constituting an offence.’

The government has made very clear that it intends to improve the rights of victims in this legislation and certainly not to narrow them. There would be many uncertainties if the statutory definition of a victim was linked to a criminal offence. For instance, as you are aware up to 80% of victims of rape and sexual assault, and domestic abuse, do not report what they have suffered to the police and yet are in real need of their Code rights, in particular of Right 4 to have access to victims support services. Some victims report a case anonymously to assist police with intelligence, often via contact with a Sexual Assault Referral Centre, but do not intend to take it forward into the criminal justice system. In addition, many reported cases are not recorded by the police for a range of reasons and up to 40% of many kinds of victim withdraw from the criminal justice process even after they have entered it, often prior to any charge. It would be difficult to say which of any of these and other categories of victims who had, in fact, suffered ‘criminal conduct’ would be clearly eligible for their Code rights on the narrower definition.

We would be very grateful if you would feel able to consider the point we raise which is an extremely important one for many of the victims whose interests we represent.

Kind regards,

Dame Vera Baird QC, Victims’ Commissioner for England and Wales

Nicole Jacobs, Domestic Abuse Commissioner for England and Wales

Victims’ Law consultation: Letter from Minister Pursglove to Dame Vera Baird

On 26 January 2022, Tom Pursglove MP, Justice Minister, wrote to Dame Vera Baird about the Victims' Law consultation period. This follows earlier correspondence from Dame Vera Baird and Nicole Jacobs, the Domestic Abuse Commissioner. (See: Joint letter to the Deputy Prime Minister on extending the Victims’ Law consultation).

26 January 2022

Dear Dame Vera,


VICTIMS’ BILL CONSULTATION PERIOD


Thank you for your letter dated 16 December 2021. I appreciate your interest in the Victims’ Bill consultation and value your ongoing engagement in this field.


I sympathise with the exceptional challenges that the ongoing COVID-19 pandemic has presented to the victims’ sector, which I appreciate will have impacted both the demand for support and the capacity of some organisations to provide services to victims. I understand that the eight-week time frame of this consultation might overlap with other Government consultations that have been launched recently and are related to the victims’ sector.


Whilst I am aware of existing time pressures, the Government has made a commitment in the Queen’s Speech to introduce a draft Victims’ Bill in this parliamentary session. To meet this commitment, we are all working to incredibly tight timescales. Therefore, it will not be possible to grant a general extension to the consultation period. However, my department is willing to consider individual extension requests of up to two weeks, made either on the grounds of accessibility or exceptional pressures on organisations as a result of COVID-19 (such as acute levels of staff absence), on a case-by-case basis.


It is a key priority of my department to ensure that this consultation is as accessible as possible and to ensure the voice of victims is heard. From publication, we made the consultation document available in an accessible PDF format, as well as in large print (on request). Further to this, the consultation was, as you know, published in an accessible HTML format on 12th January and in a British Sign Language (BSL) format on 19th January. To maximise the opportunity for engagement, we are also working with partners in the victim support sector to deliver engagement events with both frontline practitioners and victims and survivors throughout the consultation period. You will be in receipt of a further letter in response to your letter to me, dated 24th January, imminently.


If you, or anyone you are in contact with wishes to request an extension on the grounds set out above, please contact victimsbillconsultation@justice.gov.uk clearly outlining the reasons for your request. My team will consider and respond to any requests as soon as possible.


Once again, thank you for your continued engagement in the victims’ sector and I look forward to working with you further as we move towards introducing a draft Bill later this year.


Yours ever,
TOM PURSGLOVE MP

Victims’ Law: Data on victims and receipt of Victims’ Code rights

This document forms part of the Victims' Commissioner's Victims' Law consultation response. It outlines the data the Victims' Commissioner believes is necessary in order to monitor compliance with the Victims' Code.

As we understand it, the Ministry of Justice (MoJ) is in the process of developing what they hope will be a clear and consistent set of metrics on Code compliance, which we welcome. We think two types of information are relevant here. Firstly, data that tells us who the victims are (so that we can, for example, ensure that different groups are getting equal access to services, and also so that we simply know the core demographics of the victim population, in a similar way to knowing the demographic composition of the offender population). For example, the age of the victim needs to be collected consistently (across agencies) via the date of birth, and ethnicity should be captured at an agreed level (e.g. ONS’ eight level classification).  We include a table of suggested data below. These need to be either easily extracted from administrative systems or collected onto these systems as an add-on.

Data on victims and receipt of Victims’ Code rights

We are recommending that two core sets of data are collected on victims: first, victim personal characteristics – to ensure that we understand who victims are, in a parallel way to understanding who defendants and offenders are, and to ensure that CJS agencies are meeting their obligations to victims under the Public Sector Equality Duty; second, receipt of Victims’ Code entitlements – to enable adequate monitoring of the Code, and to provide agencies with data if victims make complaints relating to Code entitlements. Taken together, the datasets will also ensure that Code delivery is consistent and fair, such that all demographic groups are receiving equal treatment under the Code.

This data must:

  • Use consistent categories across all CJS agencies, across all geographic levels;
  • Be collected via drop-down boxes on administrative systems, rather than open text, wherever possible;
  • In the case of personal characteristics, be self-defined, with all victims being given the option ‘prefer not to say’ for all characteristics;
  • In the case of Code entitlements, capture any reasons for non-compliance;
  • Be transferred across the administrative systems of different agencies, as necessary, so that the victim is not asked the same questions repeatedly;
  • Not replace additional data that is already collected e.g. vulnerable and intimidated witness/victim flags.

We stress that these are initial suggestions: consultation with criminal justice agency and victims’ sector experts would be required to produce a definitive list. 

Victim Personal Characteristics

  1. Date of Birth (so that victim age can be calculated at any point in the CJS process)
  2. Sex
  3. Gender identity (if different from sex registered at birth)
  4. Ethnic group (ONS 8 level classification)
  5. Religion (ONS 8 level classification)
  6. Sexual orientation (ONS 3 level categorisation)
  7. Marital status (ONS 6 level classification)
  8. Pregnancy and maternity
  9. Disability*
  10. Nationality or English not first language
  11. Homelessness

*ONS classifies disability based on three questions, ONSDISAB, ONSIMP and ONSACT: Do you have any physical or mental health conditions or illnesses lasting or expected to last for 12 months or more? (If yes) Do any of these conditions or illnesses affect you in any of the areas shown on the card? (Prompted list of 11 physical and mental conditions). And [Does your condition or illness/do any of your conditions or illnesses] reduce your ability to carry-out day-to-day activities? IF YES: Is that a lot or a little? 1. Yes, a lot 2. Yes, a little. Those that answer ‘a lot’ or ‘a little’ are classified as disabled in ONS data. 

For the purpose of collecting data on disability for CJS, this might be simplified. For example: Do you have any physical or mental health conditions or illnesses lasting or expected to last for 12 months or more? (If yes) Does this condition reduce your ability to carry out day-to-day activities? (Yes/No).

See Crime and justice methodology – Office for National Statistics (ons.gov.uk)

We know that much of the Code entitlement data is collected already, particularly by police Witness Care Units. Here, we are pressing for three things: better transfer of data across agencies; consistent categorisation across agencies and across operational areas; and improved data collection by some agencies (for example, we believe that HMCTS and the CPS lag behind the police on data collection re. Code entitlements).

Receipt of Victims’ Code Entitlements

  • Right 1: Victim has been offered an interpreter, if applicable? If yes, interpreter used/engaged?
  • Right 1: Victim has been told about the Victims’ Code.
  • Right 2: Victim has had crime recorded without unjustified delay? (Date)
  • Right 2: Victim has been told of right to have a supporter present at interview?
  • Right 2: Registered Intermediary (RI) has been considered (if applicable)? If yes, RI used/engaged?
  • Right 2: Victim has been offered the choice of being interviewed by a male or female police officer? (Domestic abuse and sexual violence cases)
  • Right 2: Pre-recorded (ABE) interview conducted? (vulnerable and intimidated victims)
  • Right 3: Victim has been sent written confirmation of allegation
  • Right 3: Victim has been told about restorative justice
  • Right 4: Victim has been informed about support services? Victim has been referred to support services?
  • Right 4: Victim has been offered special measures? Which special measures have been chosen (drop down box)? For chosen special measure, whether granted by Court; if not granted, reason
  • Right 5: Victim has been told about compensation
  • Right 6: Victim informed of arrest, interview under caution, release without charge, released on bail (and bail conditions) within designated time period (dates)
  • Right 6: Victim consulted on out of court disposal
  • Right 7: Victim has been given opportunity to give a Victim Personal Statement (VPS)? Victim has made a VPS? Victim has updated VPS? VPS read out in court.
  • Right 8: Victim informed of trial date and details within designated time period (date)
  • Right 8: Victim has re-read witness statement
  • Right 9: Victim informed of outcome of case if applicable, within designated time period (date)
  • Right 9: Victim informed of offender’s sentence (date)
  • Right 9: Victim offered meeting with prosecutor; victim told about Unduly Lenient Sentence scheme.
  • Right 9: Victim told of appeal by offender within designated time limit (date)
  • Right 10: Victim had mobile phone returned (date); victim had other property returned (date)
  • Right 10: Victim expenses paid (date)
  • Right 11: Victim informed about Victim Contact Scheme? Victim opted in or out.
  • Right 11: Victim offered opportunity to submit VPS to Parole Board
  • Right 11: Victim told of right to provide views on an application to change sex offender notification requirements; victim provided views.
  • Right 11: Victim informed of deportation of foreign national offender
  • Right 12: Victim given information on each agency’s complaints process; victim given information on how to complain if Code entitlements aren’t met.
  • Right 12: Number of Code-related complaints received; resolution at local and national level.

Joint letter to the Deputy Prime Minister: access and participation from Deaf and disabled communities (Victims’ Law consultation)

The joint letter from the Victims' Commissioner, Dame Vera Baird QC, and the Domestic Abuse Commissioner, Nicole Jacobs, calls for an extension to the Victims’ Bill consultation to allow for Deaf and disabled representatives to participate fully, and on an equal footing to individuals and organisations who do not have additional access needs.

Deputy Prime Minister
cc. Permanent Secretary of the Ministry of Justice
Sent by email

24 January 2021

Dear Deputy Prime Minister,

Copied to the Permanent Secretary of the Ministry of Justice

Victims Bill Consultation: Access and participation from Deaf and disabled communities

As the Commissioners for Domestic Abuse and Victims in England and Wales we share your high ambitions for the Victims Bill, and welcome the launch of the
consultation before Christmas. This Bill has the opportunity to be truly transformative for victims of crime, and we hope to continue to work closely with you and your officials to make this a reality. To that end, we have previously written to ask for an extension to the consultation to enable front-line services, who have been delivering life-saving work during the Covid-19 pandemic, to participate in this important work, and lend their expertise and advice to the process. We understand that a decision
has not yet been taken on this overall point, but in particular urge you to consider an extension for responses from Deaf and disabled communities.

We have grave concerns about the efficacy of a consultation process that is not accessible to Deaf and disabled people. We know from the Crime Survey of England
and Wales that disabled women are three times more likely than non-disabled women to experience domestic abuse. And yet Deaf and disabled communities can face some of the most significant barriers to accessing support, as well as barriers in accessing the criminal justice system. Often, it is only specialist ‘by and for’ services, run by and for Deaf and disabled people, that are able to meet the specific needs of these groups of victims and survivors.

It is therefore critical that Deaf and disabled people are able to fully access and contribute to this important consultation. We know that a British Sign Language version of the consultation was published on 19th January, alongside an HTML version which is accessible to screen-readers. Maintaining the deadline of 3rd February gives just two working weeks for a response. We would therefore strongly recommend that the deadline for individuals and organisations who need these versions to be extended to 16th March; 8 weeks after publication. This would mirror the 8 weeks afforded to individuals and organisations who did not require an accessible version, and is what we would expect in line with Public Sector Equality Duty.

To provide some context, we have previously had to write to the Home Office about the accessibility of their Violence Against Women and Girls Call for Evidence in
November 2020, and are concerned that this appears to be an issue shared across Government Departments. The lessons from this process do not appear to have
been learnt, and therefore we would welcome a follow-up discussion with the Permanent Secretary to ensure that policymaking across the MoJ recognises the
value of contributions from Deaf and disabled representatives in the future. In our letter to the Home Office last year we called on the Department to invest in specialist
training, and the resources and time needed to facilitate meaningful and inclusive consultation processes. We repeat that call to the Ministry of Justice.

Without an extension, Deaf and disabled representatives will be once more shut out of policymaking, on an issue that disproportionately affects their communities. The
Victims Bill will be poorer for it.

As ever, we stand ready to work closely with you in any way to support our shared aim that Deaf and disabled voices are fully represented in policy development.

Yours Sincerely,

Nicole Jacobs

Domestic Abuse Commissioner for England and Wales

Dame Vera Baird QC

Victims’ Commissioner for England and Wales

Joint letter to the Deputy Prime Minister on extending the Victims’ Law consultation

The Victims' Commissioner and Domestic Abuse Commissioner issue a joint letter to the Deputy Prime Minister expressing their concerns over the short consultation period for the government's Victims' Bill.

16 December 2021


Sent by email.


Dear Deputy Prime Minister


We want to thank you for taking the time to meet with us both recently to discuss the Victims’ Bill. We believe that this has the potential to transform the way in which victims of crime navigate the criminal justice system and access the vital support services needed to help them with this process and rebuild their lives. We really appreciate your commitment to ensuring that this work is conducted in a timely manner and that the Bill process begins within this parliamentary session.


We very much welcome the publication of the consultation and will be responding within due course. Our teams are on hand for any further assistance officials may need during this period to help draw out the detail that will be most useful in formulating the draft Bill. We are concerned, however, that an eight week consultation period, running over the Christmas season, will have a significant impact on both the detail that ourselves, the specialist domestic abuse and sexual violence sector, and victims and survivors of crimes are able to contribute to this important process.


Whilst we believe that an eight-week consultation would, under normal circumstances, potentially provide the time needed, we are concerned that the very rapid escalation of the Omicron Covid-19 variant will severely limit the ability of organisations, who will inevitably have to prioritise staffing frontline services during the busy Christmas period, to respond in the detail required. As you will be very aware, the increased number of people who are required to self-isolate during this period, as a result of the very necessary public health measures, will lead to an increase in domestic abuse and sexual violence. It will therefore be essential that these small and underfunded sectors focus their resources and capacity on supporting victims who are in immediate danger during this period. We are very concerned that without the input of both these survivors and expert sector groups in this consultation, that it will not fulfil its aims of ensuring that those who face the greatest barriers to accessing the criminal justice system are sufficiently supported.


We would also welcome further improvements to ensure that the consultation is accessible for Deaf and disabled respondents. There are currently no large print or Easy Read versions. We understand that these are only available upon request, creating further barriers to responding. We have echoed similar concerns that have been raised by VAWG sector organisations, led by Stay Safe East and SignHealth, with the Home Secretary on the need for accessible and inclusive consultations to ensure that all expert voices are factored into government policy-making.


This is a once-in-a-generation Bill, which has been strongly welcomed by victims, survivors and specialist organisations providing support to those accessing the criminal justice system. We are concerned, however, that without thorough input from them at this stage that this support for the legislation could be lost. We, therefore, call upon you to extend the deadline by four weeks to ensure that we are able to continue building on this support and that the Ministry can garner the richest response, from expert voices and those with lived experience.


We recognise that extending the consultation period would necessitate a compromise on timings elsewhere as the timetable is so tight and we would be happy to discuss what that might be.

Yours sincerely,

Nicole Jacobs
Domestic Abuse Commissioner for England and Wales


Dame Vera Baird QC
Victims Commissioner for England and Wales

Short Briefing: Intrusive demands for Third-Party Material in rape cases and the Police, Crime, Sentencing and Courts Bill

Summary

  • Victims of rape are being forced to choose between justice and their right to a private life. Rape victims are facing unjustified demands for personal information held by third-parties (medical, education, social services, therapeutic records etc.) and cases are frequently dropped if victims do not sign over their information.
  • Faced with handing over their personal information, many victims drop their complaints, leaving them with no resolution and the public with the risk of a criminal free to offend again. This is a particular risk in sexual offending, as research suggests that most offenders do so serially.
  • On the rare occasion that an allegation ends up at trial, victims are sometimes ambushed by this information in cross-examination. This can include items such as a social worker’s ‘impression’ of them as a child, which hold no relevance to the criminal charge.
  • The PCSC Bill currently contains clauses (Part 2 Chapter 3) which afford police and the Crown Prosecution Service (CPS), through the police, wide-ranging powers to wholesale access of victim data (from mobile phones etc). Please see the Victims’ Commissioner’s briefing on this issue on the website.
  • Government has indicated it will be amending those clauses to ensure that privacy protections for victims are on the face of the legislation. The same issues of privacy exist around third-party material and victims should be given the same legislative protections in respect of this material too.

Tabled Amendments

“It is my assertion that the only way to bring about a much-needed change in practice is to ensure that the framework in place to protect victims’ Article 8 rights is embedded in the legislation itself.” – Dame Vera Baird QC

  • The Victims’ Commissioner asks you to consider supporting the tabled amendments on this issue.
  • These amendments have the full support of the policing lead for disclosure and the Information Commissioner.  With the police being pleased that these would also have the added benefit of speeding up the investigation process, as only strictly relevant material will be sought.
  • As a further safeguard, victims should be afforded free and independent legal advice to help them assess if information requests are necessary and proportionate to the investigation.
  • A detailed briefing is available on my website.

Background

  • It has become routine for rape complainants to be asked to hand over excessive personal information. Requests can be in the form of both digital data (from personal devices) and ‘third party material’ (official records kept by others, including medical records).
  • Data requests are frequently disproportionate to the investigation and have had a chilling effect on victim confidence. Refusal of these demands frequently leads to cases being dropped (‘no further actioned’).
  • Guidance and case law prohibit the police obtaining an individual’s entire personal history; it is not relevant to a reasonable line of enquiry and is not strictly necessary or proportionate (the ‘tests’ laid down in ‘law’).
  • The Government’s ‘End to End Rape Review’ references CPS lawyers who “described the importance of obtaining as much digital and third-party evidence as possible in all cases to ensure prosecutors could make robust charging decisions.”  This will include stranger rapes where this information cannot possibly be said to be relevant to a reasonable line of enquiry.

The current legal framework

  • Existing case law, legislation and guidance makes clear that an officer is only entitled to ask for personal information if s/he believes that it is material relevant to a reasonable line of enquiry. In the case of Bater-James, Fulford LJ outlined a framework for dealing with such requests and insisted there can be ‘no speculative searches’. In the case of Alibhai, judges had already made clear that for a reasonable line of enquiry “it must be shown that there was not only a suspicion that the third party had relevant material but also a suspicion that the material held by the third party was likely to satisfy the disclosure test”. That is material which undermines the prosecution case or assists the defence. Data protection legislation only allows for extraction of specific information insofar as it is strictly necessary and proportionate.
  • Whilst data protection legislation allows police to access material under the strictly necessary for law enforcement ‘gateway’, it is vital that victims are asked to agree to the police accessing material free of pressure or coercion and that they fully understand what is being sought from them and the implications of providing information.

Why should Government’s include new clauses in the Bill?

  • The digital extraction clauses in the PCSC bill were initially sought by police for an entirely separate purpose outlined fully in the Commissioner’s longer briefing.
  • The Bill is currently silent on the matter of third-party material but as Government are minded to now include protections for victims around digital disclosure it is obvious that they must do the same in respect of third-party material too. As current practice means that demands are often ‘unlawful’ and the violation of victims’ privacy rights is massive, both issues (digital and third-party material) are also having an effect on attrition rates.
  • The Victims’ Commissioner (VC) has consulted the National Police Chiefs Council (NPCC) lead for disclosure on her proposed clauses he agrees that they would clarify the currently disjointed nature of the law, making the job of police easier.
  • Victims groups are also in favour of these measures.  

What are the protections needed in these clauses?The framework provided by case law, legislation and guidance must be enshrined in legislation.

1. The framework provided by case law, legislation and guidance must be enshrined in legislation.

  • Current practice is to get all material (digital, third-party etc) as soon as possible in most investigations of rape.  This happens in no other offence type. This is apparently driven by the Crown Prosecution Service (CPS) and appears to be done as a ‘credibility check’, which is unlawful.
  • This has been enabled in part because the legal framework around the seeking and obtaining of this material is contained across many different types of law (case law, legislation, guidance etc.) Police agree having a framework in primary legislation will help to clarify the position and bring about much needed change in practice.
  • The framework insists on the data-subject (in this case the victim) agreeing, free of coercion or pressure, to specified material being sought in pursuance of a reasonable line of enquiry.

2. Reasonable line of enquiry

  • That material must be relevant to a ‘Reasonable line of enquiry’ should be clearly stated in legislation. ‘Reasonable line of enquiry’ needs to be clearly defined and an audit trail for the decision-making process should also be mandated, so that decisions can be scrutinised at a later date.
  • Case study: A historical letter from a rape complainant’s childhood was considered by police to be ‘relevant’ to the investigation and disclosed to the defence and used in cross-examination. The letter pre-dated the incidence of rape by over a decade: as a child, the rape complainant had forged their mother’s signature to get out of a school class. If reasonable line of enquiry was clearly defined, there would have been no place for such material.

3. Strict Necessity

  • A complainant’s personal information can be expected to contain ‘sensitive data’ within the meaning of the data protection legislation (e.g. health and sexuality data, and/or such information pertaining to others). Statuteand case lawinsist on ‘strict necessity’ as the only appropriate test in circumstances where sensitive data will be processed as such this is included in the Commissioner’s clauses.  

4. Consideration of other means of obtaining the information

  • The Data Protection Act places a high threshold for processing data in this context: ‘strictly necessary for the law enforcement’. In order to comply with the legislation, the police need to demonstrate that they have considered other, less-privacy intrusive means and have found that they do not meet the objective of the processing.  

5. Other issues

  • The current digital extraction clauses in the Bill place no obligation on the authorised person to obtain views of childrenand those without capacitywhen seeking to obtain information from their phones. A duty to explore their views should be included to safeguard their human rights.  The same should apply to the clauses addressing third-party materials.
  • Victims should be granted the option of free and independent legal advice in circumstances where they are required to give consent to police to access their digital data or third-party materials.

Briefing on Intrusive demands for Third Party Material in rape cases and The Police, Crime, Sentencing and Courts Bill

*Please note: footnotes have been removed from the HTML version. To see full footnotes and references, please see the PDF document.

“They asked for my entire medical history, even though I only dated my rapist for 5 weeks – and said that they were asking for my complete records because the CPS will demand to see them, which sounds like nonsense given that the CPS are overwhelmed and irrelevant information will only add to their workload. They ‘let slip’ that any sign of drug abuse or depression in my medical history could influence the CPS’s decision. Can addicts and the mentally ill not be raped?”

I am pleased that the National Police Chief’s Council (NPCC) portfolio lead for Disclosure supports the case for this change. He agrees that setting out in legislation the framework carefully drawn by Fulford LJ in the case of Bater-James (see below), to ensure that it is applied both to digital material and to access to private material in the hands of third-party, would substantially reduce unnecessary infringements on the victim’s right to privacy while preserving the absolute right of the accused to a fair trial. The police are fully committed to this for the additional reason that it would reduce delay in rape investigations by properly limiting the excessive and time intensive pursuit of victims’ material to the position that it is required only by a reasonable line of enquiry. This, it is felt by the police, would reduce the likelihood of victim disengagement, which is one of the main challenges to overcome in order to improve performance in rape investigation

Background to prosecution demands for access to rape complainants’ private material held by third-parties

The issue of demands for excessive digital material from victims of sexual crimes has been well rehearsed in the media. The term ‘digital strip search’ has been used to describe the extremely intrusive nature of current practice. The Government has agreed to the need for change and has accepted amendments to clauses on this topic in the Police, Crime, Sentencing and Courts Bill (Police Bill). This will give better protection to victims everywhere whilst protecting fair trial rights and I am especially grateful to Minister Victoria Atkins for her support.

What has had less attention but is equally pervasive and entrenched is the way that victims are required by the Crown Prosecution Service (CPS) via the police to provide access to personal material about them in the hands of third parties. This is often a wholesale demand for lifelong medical records, including any mental health notes, social services material, school reports and educational material and records of any therapy taken. The resultant invasion of privacy is immense in contravention of victim’s Article 8 right to privacy. Complainants need to be protected against these excessive demands in the same way that the Government has now agreed to protect them against excessive demands for digital download. We have drafted clauses for the Bill which will extend that protection to third party material. They are attached and we ask the Government to take them on themselves, consistent with the welcome changes they have already made.

There is an annex of case studies (Appendix A) attached to this briefing note, but I hear frequently of this from the multiple victims’ organisations with which I have strong relationships. In particular this includes what I am told by Independent Sexual Violence Advisers (ISVAs) the highly skilled advocates who, day to day, support rape complainants in the police station and who are well-regarded by the Government which has invested in increasing numbers of ISVAs in recent years.

I am told of people reporting historic sexual offences from the ‘70s and ‘80s being asked to hand over their current mobile phones; victims raped in their thirties being required to consent to childhood social services records to be trawled. In cases where the rape is a stranger rape, with no previous contact at all between the victim and perpetrator similar demands are frequently made. ISVAs would say that these searches are demanded as standard. They can have no relevance to the facts of the case and do not meet the test in the Criminal Procedure and Investigation Act 1996 (CPIA) Code of Practice   that material is sought only where it is a reasonable line of enquiry.

This was confirmed in the case of Bater-James and judges were clear that this means no speculative searches, there must be specificity based in a reasonable line of enquiry.

Further the Court of Appeal had already established in R v Alibhai, that for a reasonable line of enquiry “it must be shown that there was not only a suspicion that the third party had relevant material but also a suspicion that the material held by the third party was likely to satisfy the disclosure test.” Blanket requests, where there is no specific reason arising from the facts of the individual case, do not meet this test.

However, the above experience of ISVAs and others together with the annexed case histories and abundant other evidence makes clear that the case law is not being followed and the law urgently needs to be set out clearly and transparently in statute.

It is equally clear that these demands do not meet with Data Protection law. This sets out that requests are only legitimate if they are strictly necessary and proportionate. Statute and case law insist on strict necessity as the only appropriate test in circumstances where sensitive data will be processed, that is for example health data, sexuality data etc. and/ or that information about others. 

Speculative requests like this appear to be conducted as a credibility check on the complainant. This happens only in rape and sexual assault and in no other kind of case. This appears to be driven by the Crown Prosecution Service. If the tests in the CPIA Code of Practice   and in the cases of Bater-James and Alibhai  are met, the Crown has a duty to make inquiries of the parties only where they are likely to hold disclosable material that is, material which is likely to assist the defence case or undermine the prosecution.

However, wide-ranging and irrelevant material is being sought often, and police report victims feeling pressured into agreeing to share this information due to the possibility that their case could not proceed without it. The perception amongst these police participants was that the CPS were often unwilling to consider cases without this information despite concerns of the police and the victim that the information was not relevant to the investigation.

The intrusion is a major reason why many complainants withdraw from pursuing their case, though they are clear that there was an offence and it is equally clear that the offender will remain free potentially to offend again. This material is frequently demanded at the outset of a case before any regard is given to the position of the alleged perpetrator, who may, for instance have admitted the offence in email and apologised, may admit it on arrest, may have previous convictions or have faced previous allegations or whether there is an eyewitness or other evidence of the offence.

If the suspect asserts, without more, that the victim’s account is untrue and therefore that she is lying, this is not a sufficient basis to access her personal records for a credibility vetting. If this were so then the same would apply in a vast range of other crime types, and to the suspect’s own personal records in such a case.

I would argue that the drop in rape charges is inextricably linked to the endless pursuit of requests for personal information about victims. Now even the smallest potential imperfection of the character of a victim unearthed in this way will result in a decision not to charge. Many such pieces of information that emerge would be ruled inadmissible if the defence tried to rely on them, but there is no opportunity to test their relevance as the case is closed.

Where cases do, albeit rarely, get to court and material is admitted, this process can lead to a victim being cross-examined by the defence on the basis of material that is not to do with the offence but indicative of less than perfect behaviour in some unconnected area. This will be done without any notice that something perhaps very intimate or from their long-ago past history is to be brought up to seek to discredit them. In many cases, since they are not the authors of the records, they do not know that the material exists, and it could be something like a social worker’s comment about them as a child with which they profoundly disagree. The utter irrelevance and the shock to the witness of being assailed by such material can fundamentally undermine their ability to continue to testify. If, as occasionally happens previous sexual history material is any part of what is disclosed, there should theoretically be an application to the court in advance of the trial and the victim should be notified about this but in practice this doesn’t always happen.

This is well illustrated and discussed by senior family and criminal law barrister David Spicer in his 2018 Serious Case Review Concerning Sexual Exploitation of Children and Adults with Needs for Care and Support in Newcastle-upon-Tyne, where he recommended a government review of these practices. Referring to the spectacle he witnessed of vulnerable victims being cross examined about their social services, school and medical records, he writes:

The disclosure process is costly. Records are not kept expecting they might be disclosed. Victims are unlikely to be aware of much of the content and are not informed in advance of appearing as a witness for fear of allegations that they have been coached and prepared. The consequence of this is that damaged and vulnerable individuals are knowingly exposed to distressing material without notice and to an experience calculated to confuse, intimidate and cause them further damage and distress. There is a strong argument that this is inhuman and degrading treatment prohibited by the European Convention on Human Rights and Fundamental Freedoms and does not lead to fair administration of justice.

He later quotes a victim:

“I had good support for the criminal court. Good preparation. But it made me angry. I was made out to be a liar and it made me feel low. That came as a surprise – it was dreadful. I wasn’t expecting it. Afterwards I was very upset and couldn’t control myself. I started having dreams and flash backs. I was asked about things in my records that I knew nothing about – my past and I didn’t know why.”

Neither situation I have raised is right or fair. We cannot continue with a system that abandons any victim unless they are faultless in all respects. Very few of us would be in that category. The CPS refusing to charge is the predominant current outcome indicated by the hopelessly low prosecution rate.  Similarly, we cannot permit where charges are brought that witnesses who are likely already to be vulnerable be hijacked as described by Mr Spicer, by being cross examined on the basis of records delivered to the defence by the Crown Prosecution Service from years ago.

Wide searching of personal history and cross examination of this intrusive kind whilst routinely undertaken in respect of victims is not normally conducted in respect of the defendant, indeed this unique situation is outlined in the recent (July 2021) HMCPSI and HMICFRS joint inspection report on Rape:

In no other crime type is the focus on the victim to such an extent; usually it is on the suspect. In our case files, we saw examples of victims who experienced detailed and personal questioning and searches, who gave up their phones (sometimes for 10 months or more), and whose medical records, therapy records and sexual histories were reviewed in minute detail. The approach towards the suspect tends to be somewhat different, with far less intrusion. The effect of this approach on all rape victims is unjust. It undermines public confidence and reinforces perceived barriers to accessing the criminal justice system. This mindset must change away from finding areas or elements that may weaken the case, and instead towards problem-solving to build strong cases from the outset.

These findings echo what I have heard too, the suspect is not subject to anywhere near the same levels of scrutiny, he is not expected to hand over his mobile phone, nor to surrender any third-party materials such as social services, medical and school records. In fact, he is afforded greater protections in this regard.

There is a specific related problem about how current therapeutic notes are dealt with.  Many victims will benefit from therapy to help them to deal with the trauma of what has happened. Historically, police and CPS told victims not to seek therapy prior to trial but to delay until afterwards.  Victims groups had long been saying this was unacceptable and in 2017 the CPS announced they would re-draft their guidance on pre-trial therapy. Amongst many others I sent views to their consultation on draft guidance last year. Nothing has been published.

It is unacceptable that victims were advised not to seek therapy pre-trial but equally unacceptable that the police and CPS require access to notes of their therapy sessions with the threat that they might be disclosed to the defendant. This clearly, also acts as a bar to therapy. The last person a victim traumatised by rape wants to hear about its impact on them is the man who she says did it. Many victims will not take the risk that something they said about their trauma may be put to them in court in front of the defendant. This means that few people are able to both have the therapy they need and to play a role in bringing a culprit to justice. Many kinds of therapy do not involve a rehearsal of the facts of the case, and it is unlikely that most therapy notes will pass the CPIA and Alibhai tests and yet it appears to be standard to treat them as if they do.

Despite case law, legislation and guidance practice on the ground echoes what we see with digital disclosure, it is practically CPS policy to get as much material as possible, but this only seems to be the case in rape investigations. 

CPS lawyers told the Government researchers for the End to End Rape Review about disclosure practices and ‘described the importance of obtaining as much digital and third-party evidence as possible in all cases to ensure prosecutors could make robust charging decisions.’ ‘In all cases’ of rape will include stranger rapes, where it is hard to see how any of the complainants’ personal data is likely to be relevant to a reasonable line of inquiry. In fact, police officers also told researchers their ‘perception that the CPS had changed the expectations of what should form part of a rape investigation which was driving the increase in the amount of digital and third-party material required. They felt that requests for third-party and digital evidence had become a standard CPS request for all rape cases rather than specifically for cases where there was a direct link to the incident, with CPS lines of enquiry described as being too broad and a ‘fishing expedition’

The CPS inspectorate’s (HMCPSI) 2019 rape inspection found around 40% of CPS requests for data and third-party material were not proportionate. A CPS internal report (as yet unpublished and not disclosed to HMCPSI during its inspection) showed that almost two-thirds (65%) of rape cases referred by police to the CPS for early investigative advice (EIA) involved prosecutors demanding ‘disproportionate’ and ‘unnecessary’ requests for information.

In Northumbria there was a pilot of Sexual Violence Complainants’ Advocacy (SVCAS) from September 2018 until December 2019. The scheme engaged local solicitors to provide legal advice and support to rape complainants in Northumbria relating to complainants’ Article 8 rights to privacy against inappropriate demands both for digital and third-party material.  The pilot demonstrated what was happening in practice in that force. The lawyers involved together with many police officers told the scheme pilot evaluation (SVCAS) about excessive requests. The report found about 50% of requests were not strictly necessary and proportionate and therefore did not fit the legal requirements for such requests. These requests were challenged by the advocates through the scheme.

Police participants in the advocacy scheme expressed concern about the level of demand being made of victims:

“I could talk all day about third-party material, and it is the real bone of contention. It’s one of the things that has given me sleepless nights over the years, you know. It has… And I had a rape team investigator say to me on one occasion, or a former rape team investigator, say to me, ‘I had to like leave the rape team because of what I was being asked to do, in relation to victims, I couldn’t do it’. And I think, you know, that, for me just spoke volumes. And lots of people were expressing their concerns, including me, but when that officer said that to me, I kind of thought, d’you know what, there’s something sadly wrong here.” (Police Manager 1)

“…The CPS routinely ask us to obtain peoples 3rd party, medical, counselling and phone records regardless of whether a legitimate line of enquiry exists or not. Further to that they insist that we check the voluminous data in its entirety. This is usually PRE-CHARGE.” (Police Officer Case 27, Case Files, emphasis in original).

This is the kind of behaviour for which the Government has recently apologised. In particular, the then Lord Chancellor, Robert Buckland said, in answer to a question from Harriet Harman MP about the use of a victim’s previous sexual history in trials when making a statement on the End-to-End Rape Review in the House of Commons on 21st June 2021:

‘I think undue focus on the victim begins right from the initial investigation and I think that that is wrong. I think that the proper emphasis in this report is about looking at the person who is alleged to have done it, rather than constantly focussing as she rightly says, on irrelevant previous sexual matters that have nothing to do with the case and are an unwarranted intrusion into the private life of victims.’

And in answer to David Davies MP …….

‘We need to move away from the fixation with the credibility or believing of the victim and be much more about the perpetrator. If someone’s house is burgled they do not expect to have a long trawl into their personal history and if they had a window unlocked or whether they had been drinking: it is about trying to find out who did it and who is responsible for the crime. It is that sort of approach that is needed in rape and serious sexual offending’

In Appendix A there are some quite startling examples of the level of intrusion victims are being asked to bear.

It seems from the evidence above that these practices have become cultural. It is imperative to put clearly on the face of the Bill what is permissible and what is not, for everyone’s sake. Currently the framework for access and disclosure of this kind of material is scattered across case law, guidance and general criminal justice legislation. The disjointed nature of all of these reference points mean that some police may be unaware of the true position in law; much is open to interpretation and agencies are able to act in a way which legislative provision would make clear is not permissible.  

The law needs to be clearly set out in a single piece of legislation. The work of officers on the ground would be far more straightforward and victims of crime would be protected against current unacceptable levels of intrusion. Indeed, as stated above the police lead for disclosure agrees with me.

Indeed these clauses may also provide a benefit to third-party data controllers, ensuring that they only get lawful, proportionate and well explained requests from police which will minimise the current inevitable back and forth which currently happens and causes delay. 

It would give officers like those quoted as part of the Northumbria pilot (above) clarity about what they can and cannot do so that they can respond appropriately to any requests from the CPS.

What am I proposing?

In my briefing on the digital extraction clauses, I proposed amendments to the Government’s bill clauses (Chapter 3 clauses 36-42) which put protections for the victims (and witnesses) Article 8 right to privacy on the face of the legislation. The Government has seriously considered what I have proposed and now intends to incorporate these amendments into the current bill.

In respect of material in the hands of third parties, there are no Government clauses proposed but the argument for regulation and protection is identical. I am proposing a set of mirror clauses to go into the Bill (Appendix B) which essentially give that same protection when that is the material being sought.  I would expect that if the Government acknowledges this need for equivalent protection, they would find clauses similar or in identical terms to these to be acceptable.

Additionally, as I have requested in respect of digital disclosure, although as yet not adopted by Government I assert that those being asked for such third-party material be given the opportunity of free and independent legal advice.

For Further information please contact my office victims.commissioner@victimscommissioner.org.uk

Appendix A – Case Studies

Case 1

As a Police and Crime Commissioner in the area at the time David Spicer (cited above) elaborated to me on an aspect of a cross examination witnessed by him as part of his review process.

It was a case where a letter to school in which a rape complainant had forged her mother’s signature to get out of a lesson she did not like was considered by police to be ‘relevant’ disclosed to the defence and used in cross examination. There would be no place for such material in a test of what was a reasonable line of inquiry into the rape of which she complained approximately ten years later.

The victim in question also provided Mr. Spicer with a powerful quote about this experience for his review:

You should not be questioned about stuff outside the time zone for the case.

For me, some of it was years ago. For some it’s new and fresh. You can put it at the back of your mind.

I was questioned about a note for school asking for absence when I forged my mother’s signature years before. Afterwards I cried. I was in a catatonic state for a day.

I felt that I was on trial. He hated me. Said I preyed on older men (I was 15/16). Said I had done something like this before – i.e. made complaints that were lies.

There were not guilty verdicts.

It put me off ever giving evidence again. I would not do it.”

The following case studies from the Centre for Women’s Justice illustrate the depth of the problem. 

Case 2 -Blanket request for social services records of a woman who was previously a looked after child

A survivor ‘Emma’ was asked for her social services records she asked the ISVA to help with this request which seemed unreasonable

The ISVA reported:

CPS have requested social services records as they say it is a reasonable line of enquiry. The client wanted to understand why these were relevant before she could decide whether to consent. She stated that she has absolutely nothing to hide, however she was a looked after child and the records contain her whole personal life history up until the age of 18. There was nothing relevant to the offence in the records and it seems that the only reason they asked for them was because she had told them she was a looked after child.

I had emailed the OIC to ask her to explain why it is that they want socials services records – what relevant evidence they believe they may contain – because the client needs this information so she can consider if she would consent. This was her response: “That is CPS’ decision but it would be to review records and see if there is any material that would assist or undermine the case”.

Case 3 – Blanket request for all records

A young survivor ‘Alisha’ was asked for consent to access all her records, her ISVA reported:

I am supporting a young woman who just made a report to the police and she received an extremely vague consent form that asks to access school, medical, social services, counselling, mental health records with no explanation of what they will be looking for or within what dates, only the names of the schools/services. I challenged this, the officer provided an example as to why he would need to access school records and only offered the following about who will access the data and how it will be stored: ‘Any information in this case will be confidential and will only be shared with parties who are concerned in safeguarding vulnerable people.’

Appendix B -Proposed clauses

New clauses:

(1) Subject to Conditions A to E below, insofar as applicable, an authorised person may request information in the possession of a third-party if-

  • the subject of the data has agreed to the request being made.

(2) Condition A for the exercise of the power in subsection (1) is that it may be exercised only for the purposes of—

     (a) preventing, detecting, investigating or prosecuting an offence

(3) Condition B for the exercise of the power in subsection (1) is that the

power may only be exercised if—

  • the authorised person reasonably believes that information stored by a third   

party about the data subject is relevant to a purpose within subsection (2) for which the authorised person may exercise the power, and

  • the authorised person is satisfied that exercise of the power is strictly necessary and proportionate to achieve that purpose.

(4) For the purposes of subsection (4)(a), information is relevant for the purposes within subsection (2)(a) in circumstances where the information is relevant to a reasonable line of enquiry and likely to meet the disclosure test.

(5) Condition C as set out in subsection (7) applies if the authorised person thinks that, in exercising the power, there is a risk of obtaining information other than information necessary for a purpose within subsection (2) for which the authorised person may exercise the power.

(6) Condition C is that the authorised person must, to be satisfied that the exercise of the power in the circumstances set out in subsection (6) is strictly necessary and proportionate, be satisfied that there are no other less intrusive means available of obtaining the information sought by the authorised person which avoid that risk

(7) Condition D is that the data subject who has given agreement under subsection (1)(a) was offered free independent legal advice on issues relating to their human rights before that agreement was given.”

(8) Condition E is that an authorised person must have regard to the code of practice for the time being in force under section [Code of practice] in accordance with section [Effect of code of practice] below.

(9) In this section and section [Application of section [Requests for third party material] to children and adults without capacity]—

“adult” means a person aged 18 or over;

“authorised person” means a person specified in subsection (1) of section

[Application of section [Requests for third party material] to children and adults without capacity] (subject to subsection (2) of that section);

“child” means a person aged under 18;

“agreement” means that the data subject has confirmed explicitly and unambiguously in writing that they agree—

(a)  to the request for disclosure of specific material by a third party.

Such an explicit written confirmation can only constitute agreement for these purposes if, in accordance with the Code of Practice issued pursuant to section [Effect of code of practice], the data subject—

(i) has been provided with appropriate information and guidance about why the request is considered strictly necessary (including, where relevant, the identification of the reasonable line of enquiring relied upon);

(ii) has been provided with appropriate information as to (a) how the data will or will not be used in accordance with the authorised person’s legal obligations and (b) any potential consequences arising from their decision;

(iii) has confirmed their agreement in the absence of any inappropriate pressure or coercion;

(iv) has been provided with and signed the legal notice issued by the College of Policing for use by authorised persons seeking such material.

“third party” means any organisation, agency, body, individual or authority which holds information about the data subject;

“data subject” means any person who may have information stored about them by a third party and could include victims of crime, witnesses to crime and others coming into contact with authorised persons.

“information” includes moving or still images and sounds such as documentary footage;

“offence” means an offence under the law of any part of the United

Kingdom;