In the sort of scenario being described, the suspect—not yet a defendant—will be able to say, “This was consensual and there is a text message that will demonstrate that.” Once that is asserted, that can be sought. It is not a justification for the kind of wholesale retention of mobile phones and trawling of data that people fear. I know that the hour is late and that the Minister wants to make progress, but I just want to put two questions before I sit down and let her finish her response.
First, I noticed while the Minister was speaking that the formulation used in my noble friend Lord Rosser’s Amendment 89 is “strict necessity”, whereas in the government amendments the test is of necessity—