My Lords, I join the noble Lords, Lord Paddick and Lord Rosser, in apologising to the House for the length of my comments. It might assist the Committee if I begin with a brief overview of the provisions in Chapter 3 of Part 2 of the Bill. These provisions will establish, for the first time, a clear statutory basis for the extraction of information from digital devices with the agreement of the device user, and introduce safeguards to protect the privacy of victims, witnesses and others. I echo the comments of the noble Baroness, Lady Chakrabarti, that it is a vast intrusion. People’s lives are on their digital devices and I understand the sensitivity of that.
The current approach to the extraction of information from digital devices has been criticised as inconsistent and, as the noble Lord, Lord Rosser, says, as being tantamount to a digital strip search, where devices were taken as a matter of course and where, in many cases, all the sensitive personal data belonging to a device user was extracted and processed, even when it was not relevant to the offence under investigation. Clearly, that is unacceptable. This resulted in privacy and victims’ groups opposing this practice, particularly in cases where the device belongs to a victim or witness.
A consistent approach is clearly needed to ensure that requests for information are made with the victim’s right to privacy in mind and to ensure that all those agreeing to provide their sensitive personal data have all the information that they need to make that decision, including details on why their information is needed,
how it will be used and their right to refuse to share that information without any negative consequences. This lack of consistency is of particular concern where the offences under investigation are those such as rape and serious sexual assault, where the victim is likely to be extremely distressed, as the noble Baroness, Lady Chakrabarti, said, and where rates of reporting and conviction are far too low.
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In Committee in the House of Commons, we heard evidence from the Victims’ Commissioner, Dame Vera Baird, who argued that these provisions did not go far enough in protecting the privacy of victims and witnesses. We have considered very carefully the views of the Victims’ Commissioner and others and agree that these clauses can and should be strengthened to ensure the highest standards of protection for victims. We owe it to vulnerable victims and witnesses to get these provisions right and we agree that we can do much more to protect individuals during the exercise of these powers. As such, we have brought forward a number of amendments to strengthen the clauses even further by placing additional obligations on authorised persons that will result in further safeguards for individuals. I hope noble Lords will agree that many of the issues raised in other amendments in this group are addressed through the government amendments. I will explain each government amendment in turn.
Clause 36 confers a power on an authorised person to extract information stored on an electronic device where the user has volunteered the device and has agreed to the extraction of information from it. An authorised person may exercise these powers only where they reasonably believe that there is relevant information on the device and only for the exercise of one of the stated purposes.
Amendment 81 provides that the power to extract information under Clause 36 for the purpose of the prevention, detection, investigation or prosecution of crime may be exercised only in pursuit of a reasonable line of inquiry. This amendment ensures that the threshold for the use of the power is that there it is a reasonable line of inquiry that is being pursued. It also aligns that threshold for the exercise of the power with other practices and obligations followed during the course of an investigation, as set out in the code of practice under the Criminal Procedure and Investigations Act 1996, which provides that investigating agencies, such as the police, must follow all reasonable lines of inquiry whether they point towards or away from a suspect.
This amendment is made only in reference to the powers in Clause 36(2)(a), as these are the only cases where the code of practice under the 1996 Act applies. In other circumstances where the power under Clauses 36 or 39 may be exercised—namely, to locate a missing person, to protect a child or an at-risk adult from harm, or to investigate a death—there may not be a crime, so the code of practice under the 1996 Act does not apply. In all cases, an authorised person will still have to meet other requirements, such as reasonable belief that information on the device is relevant, as well as ensuring that use of the exercise of the power is necessary and proportionate to limit unnecessary intrusion on the privacy of individuals.
In the debate in the Commons, concerns were also raised that these provisions set the age of an adult at 16 rather than 18 and that this would result in some young people being asked to provide agreement when they were not sufficiently able to understand the implications of doing so. There was also concern that the power imbalance between the young person and the authorised person might mean that they were more likely to feel pressured to agree. We set the age at 16 to ensure that those older children were able to retain control and autonomy over their sensitive personal information, but we want to protect all children and ensure that their needs are recognised. As such, we have determined that it is appropriate to increase the age of an adult to 18 and Amendments 85 and 86 provide for this. This will mean that children aged 16 and 17 will no longer be able to agree to extraction of information from their devices.
I turn to Amendment 93, which I hope goes some distance to addressing the issues raised by Amendment 80, tabled by the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Paddick. Amendment 93 sets out in some detail the conditions that must be met in obtaining agreement from a device user. These conditions are that an authorised person must specify in writing the information sought from the device, the reason it is sought and how it will be dealt with once it has been extracted. The authorised person must inform the individuals that refusal to provide their device does not automatically result in the end of any inquiry or investigation. The authorised person must also obtain this agreement in writing and give the individual a copy of the agreement. This amendment will confirm the obligation on authorised persons to give individuals all the information that they need to make an informed decision. This will increase public confidence in the exercise of these powers and will ensure that victims’ rights are respected throughout investigations.
The noble Lord, Lord Rosser, raised the very valid question about undue pressure. The reason for using “undue” pressure is that we recognise that this will likely be a pressurised, stressful situation for victims, so we cannot just use “pressure”. We recognise that, in the circumstances, victims may frequently find such situations stressful, and the purpose of the amendment is to make it clear that the authorised person should not apply any additional pressure or any behaviour that could be considered coercion.
My noble friend Lord Hayward asked the very valid question about someone being falsely accused and what action can be taken where a false allegation of criminal conduct is made against someone. Where there is evidence of a false accusation, that in itself can be a crime—for example, the common-law offence of perverting the course of justice—and the police would be expected to investigate in the normal way.