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Letter to Minister Atkins, Minister of State, on PCSC Bill

Dear Victoria

Once again, I would like to thank you for your substantial help and support in achieving the excellent Government amendments to Clause 36 et sequens of the Police, Crime, Sentencing and Courts (PCSC) Bill and for your determination to drive through the End to End Rape Review (EERR) Actions; I share your drive to do this. As you know, I am extremely pleased with the digital material clauses and urge you to consider the other half of this issue, that being the intrusive demands for third-party material.

I am extremely worried that work in this area seems to be confined to non-legislative options and I am clear that the only way to change practice is to legislate.

It is plain that in respect of victims of crime and in particular victims of rape, many police forces are running what Professor Betsy Stanko described, when talking about the work of Bluestone in Avon and Somerset, as a ‘victim credibility unit.’

So great is the focus on credibility that it has become standard practice for the Crown Prosecution Service (CPS) via the police to ask for vast amounts of digital and third-party material from a victim of rape.

Indeed, CPS lawyers told the Government’s EERR the importance of getting ‘as much digital and third-party evidence as possible in all cases to ensure prosecutors could make robust charging decisions.’ Police too described this as a standard enquiry on the insistence of the CPS describing these requests as a ‘fishing expedition’.

Her Majesty’s Inspectorate of the Crown Prosecution Service (“HMCPSI”) in 2019, found that as many as 71.4% of requests by prosecutors for information or evidence were made unnecessarily or not made appropriately, with one of the most common themes being prosecutors “making requests for third-party material (such as education, medical or Social Services records) that were not necessary”. The HMCPSI’s Inspection Report adds that it saw examples of “[CPS] action plans that consisted of a generic list of actions without any tailoring to the facts of the case”, and “very few” examples of police officers challenging unreasonable CPS requests in such circumstances.

A CPS internal report (yet unpublished and not disclosed to HMCPSI during its inspection) showed that almost two-thirds (65%) of rape cases referred by police to the CPS for early investigative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 ‘disproportionate’ and ‘unnecessary’ requests for information.

I understand that the process of obtaining material from third parties is causing delay and I am aware that the focus of one of the EERR actions is to speed up the process. The best way of doing this will be to ensure that requests are proportionate and lawful. That will only happen if the framework is clearly laid out in statute. We have seen the effects of the piecemeal nature of the framework in digital material which Government have accepted by including these new clauses in the Bill creates confusion. Indeed, the National Police Chiefs Council (NPCC) disclosure lead ACC Tim De Meyer accepts the need for culture change and is in favour of legislating because it will, he says, have the added benefit of speeding up the process because only limited amounts of material will be sought, enabling police to investigate more offences.

Although I accept that unlike the digital material clauses, there is nothing in the Bill currently about third-party material, it is imperative this issue of excessive privacy impinging demands made of victims is appropriately dealt with in the legislation. Even as it can appear to be two separate issues, in reality they are two sides of the same issue; the CPS via the police are asking victims of rape for their digital material and third-party material. The overarching aim of this appears to be assessing credibility. It would be a disservice to victims if Government puts protections in place in legislation for one aspect of this and not the other.

There are five additional reasons to legislate in the PCSC Bill:

Firstly, the police do accept our drafts and though the Home Office rewrote the clauses which were put into the Bill on digital download, they nonetheless follow the now welltrodden paths involved in ours.

Secondly, ACC De Meyer is satisfied that they are workable and allow full investigation and appropriate access to material whilst giving the protections to complaints essential if we are to restore public confidence.

The third reason is that these clauses too would need to be subject to the Code of Practice and other documents attached to this Bill which need to develop on top of the legislative provisions in the Bill itself.

The fourth and perhaps strongest reason is the urgent need to commence culture change amongst police and CPS on the issue of excessive and over-intrusive demands for digital and third-party material. I was very impressed that the government redraft of our digital download clauses added the specific requirement that a complainant should not be told that if s/he refuses to allow download the case will be stopped. That is a clear and helpful acknowledgement that that has been happening now, and indeed it has. This draft is a welcome prompt that the approach to complainants must stop. It has been that, in effect, they have to prove their worthiness for police and CPS support, proof which is often required before any attempt has been made to investigate the offence or the defendant and a test which the culture also ensures many complainants fail.

It is futile to draft culture changing provision like this if it does not cover third-party material too. What use protecting a complainant from being told that her case will stop if she does not allow digital download when she can instead be told that it will stop if she doesn’t allow full access to third party material? It is clear that removing the means to obtain excessive digital download material will be ineffective if the ‘complainant credibility test’ as the academics in Project Bluestone called it can be applied by excessive demands for third party material.

A fifth reason is ACC De Meyer’s conviction that limiting access to third party material will speed up individual investigations, facilitate more and help to limit delay.

I am aware that one of the non-legislative options being considered is a new data processing notice (DPN) for third-party material which sets out the law in a similar way to the digital form. This will not change the culture. The forms, issued as a ‘guide’ by the NPCC, are just that ‘guidance’, forces can choose to use them and can (and do) adapt them for their own use.

As you know before 2019 each force had their own version of the digital data processing notice or in some forces no version at all. There wasn’t a standard approach across forces. In early 2019 the NPCC released the first iteration of the national DPN, in a bid to standardise practice across forces albeit with no power to make forces use them. This form that was then subject to a judicial review. In September 2020 the NPCC issued an ‘interim’ DPN that addressed the Bater-James judgment and in September this year they issued an amended permanent version that addressed more widely some of the Information Commissioner’s recommendations. With these various iterations some ‘better’ than others practice on the ground has not changed. Indeed I have recently heard anecdotally that forms are being presented to victims to sign incomplete i.e. they have no idea what they are signing as that will be filled in at a later point by the officer. I have also heard that on the ground some officers are completely unaware of their existence presumably because the force in question has decided not to use them. If the DPN’s were capable of solving the problem, then presumably the culture described above would have ended.

I have also been made aware that this issue is wider than just the CJS and has implications in other areas of policing such as counter terrorism. It is perfectly possible to limit the clauses in legislation to the investigation of crime and victims’ third-party material. Let’s not forget that what you are comparing here is the investigation of a potential terrorist and the ‘investigation’ of a rape victim. These are very different things and could easily be distinguished in drafting.

As you are aware, we drafted clauses similar to those Government have now tabled in respect of digital material to limit unjustifiable police and CPS demands for personal information held by third parties. These amendments were tabled in the House of Lords, by the Labour peer Lord Rosser, the Conservative Baroness Newlove, My distinguished predecessor as Victims’ Commissioner, and Lord Anderson, a leading QC and crossbench peer.

Baroness Williams made clear that the Government is “very alive” to what she called this “very important issue around the proportionality of requests for third-party material relevant to a victim. This material can be highly sensitive—for example, medical records. We agree that such material should only ever be sought where there is a reasonable line of enquiry, but we are aware that this is not always the case. There are examples where such requests cannot be justified, and this has a detrimental impact on the confidence of victims. The Government wholeheartedly agree that there needs to be a consistent approach to ensure that requests for third-party material are made with the victim’s right to privacy in mind and to ensure that the victim is fully informed.” She indicated to peers that she would ensure that work was done in this area as the Bill progresses through its Lord’s stages.

I am hugely concerned that the current hope for this ‘consistent approach’ is a new DPN when there can surely be no doubt that the only way to ensure this much needed change is via legislation.

Our proposed legal safeguards would require the same formula essentially as that which Government has already agreed should apply in respect of digital download including that material could only be requested by officers in pursuing a “reasonable line of enquiry” and also that there would have to be an audit trail to show when, how and why consent was given by the victim. They would also incorporate the important legal precedent in the case of Alibhai (R v Alibhai and others [2004] EWCA Crim 681), so that as well as being the subject of a reasonable line of enquiry, information held by third-parties can only be sought where the authorised person suspects that the information might be disclosable if in the possession of the prosecution, in other words that it might meet the disclosure test.

We are here to help in any way to ensure that these protections are all included in this piece of legislation and I seek an urgent meeting with you to discuss this further.

As is my usual practice a copy of this letter will be published on my website.

Kind regards

Dame Vera Baird QC
Victims’ Commissioner for England and Wales