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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 downloads of personal data and cases are frequently dropped if victims do not sign over their data.
• Faced with handing over their personal devices and data, 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.
• The PCSC Bill affords police and the Crown Prosecution Service (CPS) through the police wide-ranging powers to wholesale access of victim data. Any safeguards for victims are relegated to guidance, which current practice demonstrates is largely ignored.

• These provisions run in the complete opposite direction to the government’s end-to-end rape review (E2ERR) and its commitments to victims of rape. If passed in its current state, these clauses are likely to only worsen the situation for victims.

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 tabled by Lord Rosser (754 (parliament.uk)  pages 21 -23 (Clause 36.)
• 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. The Victims’ Commissioner asks you to consider supporting the tabled amendment (754 (parliament.uk)  on page 20 (clause 36).

• 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 download of 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 Information Commissioner’s Office (ICO) found that demand for this material is principally driven by the Crown Prosecution Service (CPS). The E2ERR 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 digital data if s/he believes that it is material relevant to a reasonable line of enquiry. In the case of Bater-James, judges were clear that this means no speculative searches, and data protection legislation only allows for extraction of specific information insofar as it is strictly necessary and proportionate for the investigation. The officer must also be satisfied that there are no less intrusive means of getting the information.

• 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 download free of pressure or coercion and that they fully understand what is being sought from them and the implications of providing information.

What led to Government’s proposed clauses in the Bill?

• The digital extraction clauses in the PCSC bill were initially sought by police for an entirely separate purpose delineated fully in my longer briefing.
• The Victims’ Commissioner (VC) was consulted on draft clauses and raised concerns that this power would also have implications for victims of crime, particularly victims of rape. With agreement from the National Police Chiefs Council (NPCC) and the ICO the Commissioner proposed amendments to the clauses, which the government chose not to incorporate.
• The government asserts that the statutory guidance will ensure safeguards for victims. However, the current safeguards are largely contained in guidance, which has been shown by current practice to be ineffective. In any event, the guidance is without teeth: legislation takes primacy over guidance and the current clauses specifically limit liability for failure to follow the guidance.

• The power in the bill is wide-ranging and will effectively provide a legal basis for intrusive and excessive download of personal information, with any safeguards for victims of crime relegated to guidance.

What are the problems with these clauses?

1. There is no definition of ‘agreement’ in the legislation.

• ‘Consent/agreement’ is often sought by police from complainants of sexual violence in circumstances where they are not fully informed or are being coerced. To safeguard against this and to make clear that agreement means informed and freely given consent, ‘agreement’ should be defined in legislation.

• Police (and others) need to be specific about what data they are seeking. It is only through specifics that the data owner i.e. victim can give informed consent to extraction.

2. Reasonable line of enquiry

• Without ‘reasonable line of enquiry’ clearly defined in legislation, the ‘legal’ hoop for police is merely reasonably belief in relevance, which risks embedding a culture of wholesale downloads and intrusion into privacy. 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.

3. Strict Necessity

• A complainant’s personal device 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). Statute and case law insist on ‘strict necessity’ as the only appropriate test in circumstances where sensitive data will be processed. The modifier ‘strictly’ has been removed from the test, creating a far lower threshold for processing of this type of material than the Data Protection Act intended. This means that victims’ Article 8 ECHR rights are less protected.

4. Reasonably practicable

• 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.
• The use of the phrase ‘reasonably practicable’ is a problem both because it is incompatible with data protection legislation and because of concerns that this gives police a means of easily dismissing other options.

• The risk for rape victims is that the most practical – or easiest path – to obtaining the information sought will nearly always be the victim’s personal device, with limited safeguards for victims.

5. Other issues

• The authorised person has no obligation to obtain views of children and those without capacity when seeking to obtain information from their phones. A duty to explore their views should be included to safeguard their human rights. It is wholly inappropriate that an unknown adult can give consent in these circumstances – this should be removed.
• Immigration officers can be an authorised person under the draft clauses. There is obvious potential for a conflict of interest – this power should not be extended to them.
• ‘Emotional harm’ as a ground for extraction is far too vague and open to wide interpretation. This should be limited to physical and mental harm.

• 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.

Victims of rape are being forced to choose between justice and their right to a private life. Rape victims are facing unjustified demands for downloads of personal data and cases are frequently dropped if victims do not sign over their data.

The PCSC Bill affords police and the Crown Prosecution Service (CPS) through the police wide-ranging powers to wholesale access of victim data. Any safeguards for victims are relegated to guidance, which current practice demonstrates is largely ignored.

The Victims’ Commissioner has prepared a detailed briefing document on the issue (14 pages), including proposed amendments to the Bill.

• This document is aimed at peers in the House of Lords.
• It was shared with peers in September 2021.
• The Victims’ Commissioner also produced a shorter, more accessible version of this document (3 pages).

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

Read the accompanying blog: Without basic access to justice, the integrity of the military is at risk

Sent via email

19 November 2021

Dear Secretary of State

I am writing to you as Victims’ Commissioner following recent reports that you called a meeting of Army leaders over concerns of culture and discipline. There has been particular concern over sexual discrimination, the treatment of women and misogyny. I am delighted to see these important issues being given due consideration and I thank you for your leadership in this area.

As Victims’ Commissioner, it is my role to promote the interests of victims and witnesses. As an independent voice for victims, I sit on the Service Justice Board where I advise on victims’ rights and issues. I have also recently met with the Director of Service Prosecutions and the Judge Advocate General. I have been pleased to see extensive work underway to improve services and the Service Justice System for victims. However, I remain concerned on a key issue: the prosecution of the most serious crimes where they occur in the UK, in particular rape and sexual assault.

This issue is inextricably linked to wider concerns of culture and discipline, as there have been widely publicised challenges in service culture that prohibit effective prosecution of rape and sexual violence. The Defence Committee Inquiry into Women in the Armed Forces found shocking instances of poor victim treatment. For example, pressure to supress complaints of rape within military units, repercussions to individuals for reporting rape, not being believed when reporting and being discouraged from reporting at all. The report also highlights the experiences of female veterans who suggested that the military process was a significant barrier to reporting rape and sexual assault due to the most senior personnel knowing about the allegation.

These issues have been further discussed. In Oral Evidence for the Armed Forces Bill, I gave evidence alongside key stakeholders including the Centre for Military Justice. The session illustrated a clear distrust in the Service Justice System, concerns of victim blaming, under-reporting, a lack of understanding of victims’ needs and the perception that military requirements were given precedence above the needs of individual victims.

The Lyons Review of Service Justice recommended that the most serious crimes, including rape, alleged to have occurred within the UK involving service personnel should be dealt with by the civil justice system. I wholeheartedly agree that rape and sexual assault must be dealt with in this way.

It is crucial that crimes are recognised and victims’ needs are met. Victims cannot be ignored simply because their attacker is “one of our people” in a military environment. They must have access to independent justice. Furthermore, they must have access to independent support to enable them to cope and recover from their experiences.

Without this basic access to justice, the integrity of the military is at risk.

I want to make it clear that the civilian system is not perfect. Prosecution rates are inexcusably low and work must be done to improve the system for victims. As you will be aware, this is a Government priority as the recommendations from the End-to-End Rape Review are carried out. I am pleased to lend my support to this work. However, the civilian system is independent and is able to provide independent support for victims. The work that you have begun will secure the best of the army whilst removing the worst. Giving victims of rape and sexual assault access to independent, civilian support and justice, will be an important step in ensuring this success.

As the Armed Forces Bill has progressed through Parliament, amendments to adopt the Lyons recommendation have failed. Instead, a protocol has been proposed to agree where cases will be heard if there is concurrent jurisdiction. As Secretary of State who is taking this Bill through Parliament, I ask you to reconsider these amendments at the final stages. Should a protocol, instead, come into force, I urge you to ensure that victims’ needs are fully considered, and that victims of rape and sexual assault have access to the civilian justice system.

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

Contact us if you need this publication in another format.

Overview

Fraud is huge and can also be a very high harm offence. To get to grips with the scale and nature of victimisation for this huge and unwieldy area of crime, researchers mapped out the landscape of fraud victimisation to understand how we might break down the population of fraud victims into meaningful groups and understand what characterises these groups, as a precursor to understanding their support needs.

Drawing on data from the 2017/18 and 2018/19 Crime Survey for England & Wales (CSEW), researchers used an analytical technique to segment the population of fraud victims into a set of nine mutually exclusive groups or clusters. This is not the first time this has been done, but it is the first time it has been done with CSEW data, which encompasses the whole fraud victim population, not just those who report or who respond to a less representative survey. It is a starting point for understanding everyone’s needs, not just the needs of a minority.

Read the related news story.

Read the related blog.

The Victims’ Commissioner for England & Wales, Dame Vera Baird QC, said:

“Despite the prevalence of fraud, when we think of the word ‘victim’, fraud is probably not one of the first crimes that springs to mind. Yet in high-harm fraud cases, victims frequently suffer deeply.

“We know that the police response to fraud, though getting better, is still not good enough. But it’s not just the investigative response to fraud that needs attention. We need to know how well the overwhelming majority of fraud victims – who will not get a criminal justice outcome – are being supported. Many victims seem likely to be falling through the support net and my inbox bears testimony to this: I frequently receive scores of letters and emails from victims of fraud. Most experience little to no victim care.”

Diana Fawcett, Chief Executive of Victim Support, said:

“We welcome this timely and detailed report from the Victims’ Commissioner. Fraud is a highly prevalent crime that can impact victims in a number of different ways, including severely. This insight into the characteristics and vulnerabilities of victims is vital reading for those who work closely with people who have experienced fraud, and highlights the need for specialist support for victims.”

Dear Lord Chancellor

Welcome to your new position. It is an exciting and important time to be leading the department as the criminal justice system recovers from COVID and is, through its Victims Bill consultation, reasserting its determination to deliver what other governments have long promised and failed to deliver, namely to place victims at the heart of its work. As Victims’ Commissioner, it is my role to promote the interests of victims and witnesses and I look forward to working with you to do so.

Victims tell me that they want to be treated well by the criminal justice system, in the simple sense of being listened to, treated with respect and kept well informed and up to date on case progression. It is surely our duty to help people who we have failed to protect from crime, to cope and recover from its impact and the criminal justice system plainly plays an important role in doing this. How victims are treated by the police, CPS and the courts service is well evidenced to be as important in restoring their confidence as getting their assailant’s conviction and more so that the delivery of a long sentence. The new Victims’ Code has been a step in the right direction by setting out victims’ rights. However, there have been similar Codes since shortly after the passage of the Domestic Violence Crime and Victims Act 2004 which established the need for a Code. Repeated research projects carried out by my predecessors in this role and by the Ministry of Justice itself have demonstrated that these Codes have not been observed. Victims applaud the commitment to ensuring compliance with the Code by placing these rights into statute, through the Victims’ Bill, to ensure that public agencies deliver for justice and for victims. On behalf of victims whose interests I do my best to represent to you and on your behalf, I commit to doing everything possible to support and assist you in delivering the proposed Victims Bill and thereby to achieving that essential aim of putting victims at the centre of the
criminal justice system.

In contrast, when victims are not kept well-informed and are not treated with respect, the harm that they have already experienced through crime is compounded and victims tell me that they “felt isolated and as though I was fighting a battle with the very people who were supposed to be fighting for me.” This, in turn, leads to victims dropping out of cases, unable to continue. It is only by enshrining victims’ rights into legislation through the Victims’ Bill and by holding agencies to account that we can regain public confidence in the system and get the criminal justice system back on its feet. As the Victims’ Commissioner, I regularly consult victims. My recent Victims’ Survey produced some deeply troubling responses. Victims’ confidence appears to be plummeting, and urgent action is needed to turn this worrying trend around. I found that only 43% respondents would report a crime again based on their previous experiences of the criminal justice system. Moreover, 83% of respondents said they didn’t have confidence in the effectiveness of the Crown Prosecution Service in prosecuting those accused of a crime.

Expectations for the Bill are high. We know that a Victims’ Law has long been a priority for the Conservative Party, having been a 2015 manifesto promise. The government has maintained its drive for this legislation throughout the turbulence of recent years and has driven stakeholder engagement and appetite for the new legislation over the past year. This commitment has been embraced by your stakeholders, many of whom deliver lifesaving services to victims, and the public who are keen to see the promised reforms come to life.

In anticipation of the new Bill, my Office ran a series of stakeholder roundtables in late 2020 and used these, alongside further research, to develop a Victims’ Law Policy Paper. This paper comprises research and experience and delivers 34 recommendations for the Victims’ Law. The stakeholders who volunteered their time and expertise are keen to see action. This appetite for change is further strengthened by recent Government commitments in the recently published VAWG Strategy, Beating Crime Plan and End-to-End Rape Review which promise to improve the support offered to victims of some of the most devastating crimes. Expectations are high and there is an appetite for immediate action.

The officials in your department have developed a detailed and thoughtful consultation document that can deliver immediate results. The document is based on careful engagement with victims’ organisations and support services through the ‘silver call’ run and chaired by your department. Whilst ‘silver’ originated to respond to the impact of the pandemic, it has evolved to a close working relationship between victims’ organisations and Ministry of Justice officials. Furthermore, the consultation document has been much discussed with me as Victims’ Commissioner and the Domestic Abuse Commissioner. We have commented and helped to shape this thoroughly considered document.

The consultation document is ready to be published to a keen group of stakeholders who have an appetite to engage and secure victims’ rights. I will, of course, promote the consultation and will participate in pre-legislative scrutiny to support the passage of the consultation and the development of the Bill. There is a parliamentary slot available and much expectation for the consultation’s publication.

It is the right time to listen to victims and meet their needs to enable the criminal justice system to recover, thrive and improve. I look forward to working with you on this flagship legislation.

As is my regular practice, I will publish this letter on my website.

Kind regards

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

Contact us if you need this publication in another format.

Overview

Launched in the summer, the Victims’ Commissioner’s 2021 Victim Survey sought to understand victims’ priorities and gain insights into their experiences of the criminal justice system over the past three years, including during the Covid-19 pandemic. Around 600 victims completed the survey, with about half of the responses from victims who reported or had their crime investigated during the pandemic.

The findings paint a worrying picture for the justice system, with victim confidence shown to be low. Many victims expressed their disappointment with the criminal justice system, especially the court process and the Crown Prosecution Service (CPS). Above all, the survey found that victims most want to be ‘treated well’ by the criminal justice system.

See the News Story.

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

As this survey shows, victims want to be treated with fairness and respect by the police, for the crime to be investigated and to kept informed of the progress of the case. These are hardly arduous asks – indeed, they are very clearly rights to which victims are entitled as set out in the Victims’ Code. But time and time again, the police, CPS and other justice agencies have been found wanting, with the CPS, in particular, shown to be inconsiderate of victims’ needs. All too often victims are still treated as an afterthought – a bystander to proceedings, rather than the valued participant they should be.”

Note to editors

This report was amended on 16 November 2021 to change the term gender to sex, to reflect the disclosed sex of the respondents.

Dear Victoria,

I write further to the Police Crime Sentencing and Courts Bill Scrutiny Committee evidence session on Thursday 19 May.  I was pleased to be able to continue to assist the government in my official capacity by sharing with the Committee scrutinising the legislation, the impact of the Bill on victims.

As you are aware, I have been involved at an early stage by officials in your department tasked with drafting the digital download clauses for the Bill. I have worked hard with those officials to try and ensure victims’ Article 8 rights are protected under the new clauses.

As I made plain in my evidence, despite some positive co-operative working, as drafted the clauses do not offer any substantial protections for victims. I have consulted widely in the violence against women and girls’ sector, in particular with those whose ISVAs frequently accompany complainants at police stations and are present when requirements for digital download are made. They confirm that there is a continuing problem of what is seen as over demand for this and an urgent need for national legislation which guarantees Article 8 rights where they are not in conflict with Article 6 rights. They are opposed to this legislation as it will not achieve this.

I have also obtained legal advice from counsel who agrees there is a need to put protections into these clauses and predicts a Human Rights Act challenge to the legislation at an early stage if this is not done

I know we both share a passionate commitment in ensuring victims of rape are able to access justice and you are only too aware of the current criminal justice landscape in respect of rape.

However, and as you might have realised, I was genuinely surprised when you appeared to be arguing legislative protections for victims are unnecessary and that a code of practice will ‘do the job’ even whilst the legislation specifically limits liability for breach of the code of practice.

Whilst not wanting to rehearse the arguments I made during our exchange in Committee, I have significant concerns the digital disclosure clauses contained in the Bill will serve to legitimize current practice.  This would be extremely problematic bearing in mind a CPS internal report (still unpublished) shows almost two-thirds (65%) of rape cases referred by police to the CPS for early investigative advice (EIA) had disproportionate requests for information.

The ICO also found requests to be disproportionate and that demand for this material is CPS driven.  HMCPSI have said around 40% of CPS requests were not proportionate and the Northumbria pilot of Independent Legal Advisers (SDVCs) found that in only around 50% of cases referred requests were appropriate, while the other half were open to challenge (most of which were upheld).

Additionally, the research for the Rape Review observes:

‘They [police survey participants] 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’ [ ].

‘CPS survey participants, however, 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.’

I was very pleased to be approached by your officials and in response, I entered into consultation with both the Information Commissioners Office and the Police, took further legal advice once the police need for this legislation was made clear to me. I quickly appreciated it was eminently possible to put protections into the draft clauses for victims without in any way impeding or weakening the effect of them in meeting police requirements. With the support of counsel, I drafted clauses which met both needs. I was delighted when both the NPCC representative and the ICO representative, having consulted their offices and colleagues, confirmed their agreement to these drafts.

The Police were equally agreeable to the Home Office draft clauses and did not feel strongly that either set of clauses would work better for their purposes. Of course, they are not tasked with championing the rights of victims, but they accepted the additional protections in my draft clauses.

I acknowledge that based on my feedback, your officials have made efforts to ‘strengthen’ the victims’ position in these clauses.  Unfortunately, what those measures actually do is allow individual officers to stray further from the current framework contained in legislation, guidance and case law.

For ease, I have attached my briefing on this subject which I sent to you back in April as I plan to send it to all members of the PCSC Bill Committee. It takes the issues outstanding and hopefully, makes them clear, clause by clause.

I fear campaigners and many victims of rape will be deeply disappointed with this legislation in its’ current form.  It offers no solution to the current practice of coerced consent (i.e. ‘you need to give me your phone or this case won’t go any further’), no solution to the problem of wholesale download and ‘credibility trawls’  and no recourse to victims who have their private lives scrutinised in wholly intrusive and ‘illegal’ way. It is already proving to be a contentious point as the VAWG sector considers the Action Plan for the End to End Rape Review where it features as if it was a positive development. As it is a negative development it appears to fly in the face of what the review seeks to achieve in terms of supporting victims and significantly decreasing attrition.

Whilst the code of practice you referred to has been cited as a possible solution to the above, sadly it is not. It is of secondary legal standing behind the untrammelled rights for officers set out in the legislation. With no consequence for a breach in the code of practice it will be toothless.

For the avoidance of doubt, the ICO supports a code of practice but not as subordinate legislation to this statute. It proposes an overarching code to cover in detail all aspects of the recommendations they made in their report in connection with data processing.

None of those consulted by Home Office officials on this matter have had any sight of any draft code of practice

I hope you will consider further collaboration with my office so that together, we can work out how, through this legislation, government can improve the position for victims, which is frequently, and I believe, genuinely declared to be one of its fundamental aims.

I look forward to hearing from you.

Yours sincerely

Dame Vera Baird QC

Victims’ Commissioner for England and Wales

Contact us if you need this publication in another format.

Overview

The second Annual Report from Dame Vera Baird QC covers the period from April 2020 to March 2021.

This report includes:

• The Victims’ Commissioner’s vision for reconceptualising the status of victims;
• An in-depth review of the government’s end-to-end rape review;
• An overview of the challenges facing the courts system following the pandemic;
• Calls for the government to undertake an independent review into domestic homicide sentencing;
• Recommendations for the government to take forward to tackle anti-social behaviour.

To read the news story about the report click here.

Dear Vera

Thank you for your letter of 19 May, on behalf of victims affected by the ‘same roof’ rule, requesting an extension to the deadline for applying to the amended 2012 Criminal Injuries Compensation Scheme (the Scheme).

The changes that we made to the Scheme in 2019 are an important representation of the Government’s commitment to helping victims of violent crime rebuild their lives and get the compensation to which they are entitled. I am grateful to you for making me aware of the concerns raised by victims affected by removal of the ‘same roof’ rule regarding the impact of the Covid-19 pandemic on their ability and resilience to apply to the Scheme by the deadline of 13 June 2021.

I would like to assure you, and victims, that there are already existing provisions within the Scheme to accommodate claims submitted outside of the time limit, which includes applications relating to the ‘same roof’ rule. You will know that the Criminal Injuries Compensation Authority (the CICA), which administers the Scheme, has discretion to extend the time limit for claims in instances where, due to exceptional circumstances, the applicant could not have applied earlier. Cases are carefully considered on their own merits and the CICA must have sufficient evidence to be able to determine a claim without further extensive enquiries. The CICA will consider a wide range of factors, and I have been advised that this includes whether, as a result of the Covid-19 pandemic or its wider impact, a victim has been prevented from submitting their application for compensation sooner.

I recognise that making claims to the Scheme will be difficult for some applicants and, as mentioned in your letter, the CICA has established a dedicated team to handle ‘same roof’ rule applications and reapplications. All applicants under the Scheme will have a named contact, to minimise having to recount details of what they have suffered on multiple occasions and to different people. The CICA will make appropriate enquiries with the applicant and the relevant authorities, and will aim to do this as sensitively and as quickly as possible. This bespoke provision is particularly vital during these challenging circumstances.

Since changes to the pre-1979 ‘same roof’ rule came into effect, we have taken opportunities to raise awareness of the rule change and of the deadline of 13 June, to ensure as many victims as possible are aware of the change and have sufficient time to apply. We have worked with you and other victims’ representatives and support organisations to make sure potential applicants are signposted to guidance and support in making a claim, both in July 2020 when we launched our consultation on the review of the Scheme, and in May 2021. The efforts to raise awareness of the rule change have had a positive impact, with over £20m being offered to over 1,200 victims in ‘same roof’ rule claims since June 2019.

I personally want to extend my thanks to you for helping to raise awareness among victims of the amended Scheme and the approaching deadline for applications. I invite your ongoing assistance in encouraging victims intending to apply under the ‘same roof’ rule change to do so as soon as possible, and by 13 June 2021 if they can.

I hope this information provides you, and the victims that have contacted you, with assurance that if ‘same roof’ rule applications are submitted after 13 June 2021 they will be considered on a case-by-case basis.

KIT MALTHOUSE MP

Read Dame Vera’s letter.