My Lords, I rise to speak in support of the broad thrust of all these amendments and in particular to support the most important one of all, which is Amendment 80 from the noble Lord, Lord Paddick, to which I have added my name.
To begin by way of balance—both political and gender balance—I pay tribute to the noble Baroness, Lady Newlove, who could not be here this evening but who has been incredibly supportive of women’s groups and has been alive to this issue for some considerable time. She was sorry not to be able to be here.
A few years ago, when I was sitting where the noble and learned Lord, Lord Falconer of Thoroton, sits now, I had the privilege of questioning a former Justice Minister about the legal basis for the practice that women’s groups and victims of sex crime had called digital strip searching. Many in your Lordships’ House groaned as if I was using an inappropriate phrase. To be honest, I did not get a lot of support from many noble Lords on any side of the House, but it is better to be late to the party than not come at all.
I say that to the Minister because there is no competition for sainthood here. All sides of this House are a little late to this issue, but we now have this precious opportunity to grapple with it. I do not think any of these formulations are perfect yet. I am so grateful to the Minister for discussing this with me recently, among other issues, as even the progress that the Government have made so far in these amendments can be improved.
I think the noble Lord, Lord Paddick, in his very simple Amendment 80, has done something incredibly important. I questioned the previous Justice Minister about the legal basis for taking these phones at all. Imagine that you have been raped or assaulted and have been through this horrific experience, but you do what a lot of people find very difficult to do—we know about the attrition rates—and go with a friend to the police station, to be told that you now have to hand over your device. The Minister will forgive me, but we discussed this together recently. If I were to hand my phone over, I am not just handing over an old-fashioned telephone; I have so many dear friends and family members whose numbers I do not know, because I click their names to call them. I have just been raped, but I am now giving away my contact with these people, my diary, my shopping lists and my browser, which shows all the mental health and other websites I have visited. Let us be clear: this is probably more intrusive than searching my home. The Minister will forgive me, but we discussed this together.
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Your Lordships’ House and the other place have been very late to this: women’s groups and victims’ groups that have been banging on locked doors. Successive DPPs and successive police chiefs have each been blaming the other service, by the way, because that is what happens, particularly in times of austerity: hard-pressed services blaming each other. I know that the noble Baroness, Lady Newlove, agrees with me on that.
That is what has been happening in recent years, and I do not believe that it has a sound legal basis at all. When I asked the previous Justice Minister what the legal basis was for demanding the phones of victims of sex crimes, he said “consent”. That was his answer. He is an excellent commercial lawyer, and I am just one of those humble activist human rights lawyers who drive the poor Home Secretary mad. It is not consent, though, is it? How can it be, when you are told that the rape or sex offence will not be investigated unless you hand over your phone? That is not consent, is it? Is that real consent? Of course it is not.
Furthermore, you cannot consent your way out of Article 8 of the Convention on Human Rights. If state agencies are going to hold this kind of intimate data, it has to be on a sound legal basis. I therefore commend the Minister and her team for trying to put this on a statutory basis.
First, however, I credit the noble Lord, Lord Paddick, for getting to the heart of this, by saying that the refusal to provide a device cannot lead to the refusal to investigate—because that is not consent. I also commend my noble friend Lord Rosser for looking into the importance of people having legal advice. Legal aid has been virtually obliterated in this country, and victims do not get legal advice.
We could probably do even better at reaching a consensus at Report if the Minister agreed to further discussions. We could look at, for example, time limits. We have custody time limits, and lots of other time limits, in the criminal justice system. It is a real hardship to have one’s phone taken for too much time. Friends and colleagues who are better at tech than me say that, with sufficient resourcing, good will, ingenuity and expertise, it is possible to avoid depriving these victims—mostly women—of their devices, with all their support and intimate information, for too long.
We could probably even tighten up on necessity and proportionality. Those sorts of tests are fine for high-level human rights treaties, but when we get into the granularity of things such as PACE, we could probably be tighter still.
I am sorry for taking time over this, but a lot of women in this country have been so upset and frustrated, and this particular injustice has probably exacerbated the attrition rates in the investigation and prosecution of rape, in particular, for too long.