My Lords, I support most of the amendments in this group, which is quite lengthy. One of my key priorities for the Bill is that it delivers greater safeguards to protect the privacy of victims of sexual violence. That is why I am speaking in support of these valuable amendments.
The Government’s rape review was in response to the concern at collapsing charging and prosecution numbers. The review found that most victims did not see a charge or reach court, and one in two victims withdrew from the rape investigations. Privacy concerns led many to withdraw. It had become standard practice for victims who reported to the police to be asked to
hand over large quantities of private information. This included digital data from mobile phones, but also what is known as “third-party materials”—personal information about an individual held by organisations.
“Third-party materials” is a seemingly innocuous phrase, but it belies a greater meaning and significance. In reality, it means education records, medical files, social services records or therapy notes. These can all be requested as part of an investigation—an investigation that focuses on the victim, not the accused. I quote one sexual violence survivor:
“I felt anxious, confused and infuriated. I was under far deeper investigation than the rapist (who I have no doubt would have had questionable material had they searched the same). They had refused to take physical evidence—my clothing from the night of the attack—but wanted to investigate my private life. I asked them to justify each request but they could not, so I did not provide it”.
This material often includes documents that the victim may have never seen. These can be introduced at court and used to attack the victim. As one victim told me:
“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”.
In effect, victims are being forced to choose between seeking justice and their right to a private life. That is not a choice; that is an ultimatum. The Government made reassuring noises when they announced an amendment to the Bill over the summer. They promised better protection for rape victims from invasive record requests, but I am concerned that their proposals do not offer the level of protection that we are calling for or that victims need. We need provisions that will offer the protection required. For this reason I am in full support of Amendments 101, 102 and 173, tabled by my noble friend Lady Morgan, which my noble friend Lady Finn eloquently addressed today.
Some noble Lords may recognise these provisions: my predecessor as Victims’ Commissioner, Dame Vera Baird, secured similar amendments to the Police, Crime, Sentencing and Courts Act 2022. These were designed to protect rape victims from overintrusive and excessive police requests for personal mobile data downloads. This amendment not only provides greater support for victims but provides police with a consistent approach to handling requests for digital material and third-party material. Their job is difficult enough as it is, without lawmakers adding to the complexity of their work by placing two very different processes and criteria side by side.
I am also pleased to support Amendments 78 and 79, which call for free legal representation for victims of rape and sexual assault to ensure that their privacy is also protected. Requests for information are often a clear violation of our human right to privacy—our Article 8 rights, to use the legal jargon. My predecessor argued that there should be a right in law for victims to be given free legal representation where these rights are threatened. I wholeheartedly and absolutely agree. Put simply, a lawyer advises and makes representations on the victims’ behalf, cooling police requests for data
and improving victim confidence in proceedings. In their rape review, the Government committed to consider a pilot, and I will push hard to get this up and running.
I also support Amendment 115, which if enacted would enable rape victims to seek therapy to help them cope and recover. I am always concerned when I meet victims of rape who tell me they have declined to seek counselling. They are rightly told that notes from counselling sessions might be disclosed to the court. Worse, they might be disclosed to the defendant: intimate, personal details shared with their abuser. That cannot be right. As a result, many victims will wait until the trial is complete before seeking therapy. This can mean years without support, suffering alone and in torment. Some may take their life. It is no surprise that many withdraw so they can access counselling sooner. That is no good for the victim, no good for justice and no good for society.
Currently, notes are routinely requested and can end up being the subject of cross-examination at court. As one survivor said when appearing on “Newsnight”:
“The defence said ‘Are you truthful?’ and when I said yes, she said—‘Well, you’re not exactly truthful with your husband are you? Would you like me to read your therapy notes out about what you’re currently discussing with your therapist?’ I said no. It was like a physical punch because I wasn’t expecting it. That someone would bring that up in a courtroom, about my current sex life. How, how is that relevant? It was violating—like another trauma”.
That is why I want to see records of therapy and counselling received by victims of sexual violence made subject to a form of privilege that would make them exempt from disclosure. It would not be an absolute privilege: judges could waive it if they considered a substantial value to the notes being disclosed. It is a model that balances the defendant’s right to a fair trial with a victim’s right to access counselling. We know it works. As my noble friend mentioned, it has been in place for many years in Australia, where the criminal justice system is comparable to ours. It is about a fairer model, and that is what the Bill needs to deliver: a level playing field for victims.
I also support Amendment 106. Like many others in this Committee, no doubt, I was appalled to hear that malicious individuals are weaponising legislation designed and put in place to protect vulnerable children. As we have already heard, if an individual makes a malicious complaint about someone to the police, the police can act to remove that record.
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Malicious reporting to other organisations—including social services or an employer—as part of a campaign of stalking or harassment does not carry the same safeguard, even if the perpetrator of this malicious reporting is subsequently convicted of harassment. As we have heard, under current data protection rules these malicious records cannot be deleted and this has consequences for those falsely maligned. This needs to change and Amendment 106 sets out to enable the deletion of data where a clear threshold is met to show that a report was the result of malice and its retention would continue the harassment. It cannot be a surprise to any of us that victims of this behaviour report a serious long-term impact on them and their families.
Structures around data retention are currently guided by police concerns—with good reason. Following the horrific murders in Soham in 1998, Humberside police were heavily criticised for destroying vital information surrounding previous allegations made against Ian Huntley. I understand that the UK GDPR provides considerable flexibility to public bodies to allow them to retain malicious records. Those who are the subject of malicious allegations can request that the data is deleted; however, public bodies can refuse.
Unfairly, it falls to the victim to demonstrate that the public body’s retention of the malicious data is not necessary. Once again, this puts the burden of proof on the victim. In the worst-case scenario, it could involve the victim having to take lengthy and expensive court action. For most people, this is not possible or even affordable, leaving them trapped in the knowledge that these records remain on file.
Data protection experts argue that it is this very flexibility and the inconsistency in addressing vexatious complaints that causes the problem. By updating the UK General Data Protection Regulation, we can address these inconsistencies, mirroring the concept of “exceptional circumstances” under which any deletion would take place. This amendment offers data controllers guidance on how to manage situations where there are competing obligations, for example safeguarding or in identifying repeated attacks on an individual via third-party reporting. Importantly, it creates an absolute right to request deletion and therefore overrules exemptions which currently apply. This allows public bodies to comply with these requests for deletion without risking failing to meet their legal duties.
I know that some will counter this by saying there is a danger that this right to request deletion could become a chink in the armour of our child safeguarding arrangements. None of us wants to see another Soham, but clearly a high threshold needs to be met before records can be lawfully destroyed. I believe that this amendment, as drafted, does this. By limiting this explicitly to proven victims of crimes, where the data is linked to that crime, I believe we can ensure it does not become open to abuse.
Data regulations put in place to safeguard our children must not be allowed to become a weapon in the hands of abusive partners, stalkers or those who seek to harass people in public life. The time has come for us to act.