My Lords, as well as moving Amendment 78, I shall also speak to Amendment 79 in my name, with the support of the noble Baroness, Lady Hamwee. I will speak to the other amendments in this group, and I am particularly pleased to be able to support the amendments in the name of the noble Baronesses, Lady Bertin and Lady Morgan. Both are on important issues, which we will discuss this afternoon.
The amendments in my name seek to ensure that there is a scheme to give victims of rape access to free independent legal advocates—available in every police force area in England and Wales—and that the Secretary of State must develop proposals for a scheme to give these victims access to free, independent legal advice. The idea of independent legal advice and representation for victims in these circumstances is not a new one. In 2005, the then Government announced their attention to introduce legally aided representations for victims in homicide, rape and domestic violence cases—though it was not brought in. In March 2014, the Minister of Justice in the current Government again raised the idea of independent legal representation in a review of the treatment of victims in sexual offences cases, but, again, did not implement the policy. Now it is time to make this a reality.
Independent legal advice and representation can provide an important mechanism and layer of accountability, which results in improved police and CPS policies and procedures. Independent legal advice has already been successfully piloted in Northumbria, and exists in many other jurisdictions, including most European countries, Australia, California and Ireland. Evidence clearly indicates that this legal advice and
representation can operate well, alongside the rights of defendants to a fair trial. This proposal does not propose changes to the role of victims and survivors in the criminal justice process, or the rights of audience that currently exist—nor does it change the adversarial system that we have in the UK.
In 2017, the sexual violence complainants advocate scheme was piloted in Northumbria by the then PCC, Dame Vera Baird, to engage local solicitors to provide legal advice and support to local adult rape complainants. The support primarily related to complainants’ Article 8 rights to privacy, advising on digital download requests and demands for material in the hands of third parties—such as school reports, medical records and therapy notes.
The pilot scheme took 83 referrals from September 2018 until December 2019, and was evaluated. Case file analysis showed poor practice around victims’ privacy rights—some police officers believed that there was no need to seek consent from the victims. The SCVAs challenged data requests in fewer than 47% of the cases. The evaluation showed that the scheme was overwhelmingly positive. It increased complainants’ confidence in, and understanding of, the justice system—which is likely to reduce attrition. There was consensus that the project changed organisational cultures—significantly decreasing police and CPS requests for indiscriminate evidence. Police and the CPS felt the investigations were more efficient, relevant and proportionate. A judge commended the pilot as encouraging earlier consideration of disclosures and issues—making cases more efficient and proportionate. All the pilot’s participants agreed with the principle of legal support being made available for sexual offence complainants.
The CPS’s victim’s right to review, which allows a challenge to a decision not to prosecute has been broadened by the High Court to offer an opportunity for a victim to make representations. A victim who wants to use this new voice will need publicly funded, independent, legal representation, so that there can be an equality of arms with the reviewing lawyer from the CPS.
In Amendment 115, tabled by the noble Baroness, Lady Bertin, the
“court’s permission must be obtained for access to, service or disclosure of”
the victim’s counselling record—which is why it is linked, in a way, to the amendments I have previously spoken to.
“The court must direct that access should not be granted, or evidence should not be served or disclosed, if the court finds that this would disclose a protected confidence”.
In the Government’s own end-to-end rape review, and in debates around the digital extraction clauses in the Police, Crime, Sentencing and Courts Act, it has been understood that it has become almost routine for victims of rape to be subjected to credibility trawls. This is when victims are asked, sometimes without proper regard to the law, to relinquish their private and personal information for scrutiny by the police and the prosecution.
I am sure the noble Baroness will tell us about the issues this raises in more detail, but in summary: victims and survivors who have reported sexual violence to the criminal justice system are often put in an
impossible position, forcing them to choose between seeking justice and accessing therapeutic support. Neither existing legislation nor guidance in this area has effectively addressed the problem of widespread inappropriate requests for this material. The law must change to introduce new higher thresholds for disclosure that is unique to counselling and therapy records to be applied through judicial scrutiny.
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Sexual violence and abuse are deeply traumatic. They can cause mental health problems and affect personal relationships and the ability to work. Counselling and therapy provide a means of working through trauma to help survivors to gain control of their lives, so the idea that survivors are being forced to choose between prosecuting their attacker and taking therapy is completely abhorrent.
It also raises the issue of coerced consent, which the Government’s new Clause 22 in the Bill addresses. Until recently, the disclosure of therapy records was reliant on consent from the survivor. As the Information Commissioner has outlined, the Data Protection Act requires that, for true consent, a person must be free to decline without suffering detriment. I am sure other Members of the Committee will have even more details to disclose about that.
I return to Amendment 106, in the name of the noble Baroness, Lady Morgan. I thank my honourable friend Stella Creasy MP—and I am pleased to see my honourable friend here today—for her thorough briefing on this difficult matter. It concerns the right to delete malicious complaints. I know the noble Baroness, Lady Morgan, and, I suspect, the noble Lord, Lord Russell, will have something to say about this matter.
If someone makes a malicious complaint about someone to the police, perhaps as part of a campaign of stalking and harassment, the police can act to remove that from the record. However, if the malicious reporting is to other organisations—social services or perhaps an employer—there is not the same safeguard, with potentially lasting consequences for victims and sometimes for their children and family. There is a powerful case for trying to rid people of the long-term effects of false allegations made maliciously to either a public or a private body. I can see that tackling this mischief may be a complicated area of law, but it is clearly wrong that someone’s reputation can continue to be blighted and the harassment that was already taking place can continue.
I hope the Minister will be able to provide us with some satisfaction. Again, I know that other noble Lords, and one noble Baroness in particular, will have more to say about this, because the briefing that we have all had is very thorough.
I turn to Amendments 101, 102, 103 and 103A. Amendments 101 and 102 seek to mirror the wording of the clauses dealing with victim information requests with that of the clauses dealing with digital data requests in the Police, Crime, Sentencing and Courts Act 2022. This would therefore provide consistency and parity between the frameworks for digital data requests and victim information requests, and grant victims who are subject to these requests the same digital safeguards.
Amendments 103 and 103A, to which my noble friend Lord Ponsonby has added his name, would make the Children’s Commissioner a statutory consultee for the codes of practice for victim information requests, to ensure that a child’s distinct needs and experiences are reflected, which is surely a necessary matter. I beg to move.