Data Protection and Digital Information (No. 2) Bill – in a Public Bill Committee at 3:15 pm on 23 May 2023.
‘(1) The 2018 Act is amended in accordance with subsection (2).
(2) In the 2018 Act, after section 40 insert—
“40A Processing of data in relation to a case-file prepared by the police service for submission to the Crown Prosecution Service for a charging decision
(1) This section applies to a set of processing operations consisting of the preparation of a case-file by the police service for submission to the Crown Prosecution Service for a charging decision, the making of a charging decision by the Crown Prosecution Service, and the return of the case-file by the Crown Prosecution Service to the police service after a charging decision has been made.
(2) The police service is not obliged to comply with the first data protection principle except insofar as that principle requires processing to be fair, or the third data protection principle, in preparing a case-file for submission to the Crown Prosecution Service for a charging decision.
(3) The Crown Prosecution Service is not obliged to comply with the first data protection principle except insofar as that principle requires processing to be fair, or the third data protection principle, in making a charging decision on a case-file submitted for that purpose by the police service.
(4) If the Crown Prosecution Service decides that a charge will not be pursued when it makes a charging decision on a case-file submitted for that purpose by the police service it must take all steps reasonably required to destroy and delete all copies of the case-file in its possession.
(5) If the Crown Prosecution Service decides that a charge will be pursued when it makes a charging decision on a case-file submitted for that purpose by the police service it must return the case-file to the police service and take all steps reasonably required to destroy and delete all copies of the case-file in its possession.
(6) Where the Crown Prosecution Service decides that a charge will be pursued when it makes a charging decision on a case-file submitted for that purpose by the police service and returns the case-file to the police service under subsection (5), the police service must comply with the first data protection principle and the third data protection principle in relation to any subsequent processing of the data contained in the case-file.
(7) For the purposes of this section—
(a) The police service means—
(i) constabulary maintained by virtue of an enactment, or
(ii) subject to section 126 of the Criminal Justice and Public Order Act 1994 (prison staff not to be regarded as in police service), any other service whose members have the powers or privileges of a constable.
(b) The preparation of, or preparing, a case-file by the police service for submission to the Crown Prosecution Service for a charging decision includes the submission of the file.
(c) A case-file includes all information obtained by the police service for the purpose of preparing a case-file for submission to the Crown Prosecution Service for a charging decision.”’ —(Jane Hunt.)
This new clause adjusts Section 40 of the Data Protection Act 2018 to exempt the police service and the Crown Prosecution Service from the first and third data protection principles contained within the 2018 Act so that they can share unredacted data with one another when making a charging decision.
I beg to move, That the clause be read a Second time.
It is a pleasure to speak before you today, Mr Hollobone, and to move my new clause. I recently met members of the Leicestershire Police Federation, who informed me of its concerns regarding part 3 of the Data Protection Act 2018, which imposes unnecessary and burdensome redaction obligations on the police and taking them away from the frontline. I thank the Police Federation for providing me with the information I am going to discuss and for drafting the new clause I have tabled.
Part 3 of the 2018 Act implemented the law enforcement directive and made provision for data processing by competent authorities, including police forces and the Crown Prosecution Service, for “law enforcement purposes”.
Although recital (4) to the law enforcement directive emphasised that the
“free flow of personal data between competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences…should be facilitated while ensuring a high level of protection of personal data,” part 3 of the 2018 Act contains no provision at all to facilitate the free flow of personal data between the police and the CPS. Instead, it imposes burdensome obligations on the police, requiring them to redact personal data from information transferred to the CPS. Those obligations are only delaying and obstructing the expeditious progress of the criminal justice system and were not even mandated by the law enforcement directive.
The problem has arisen due to chapter 2 of part 3 of the 2018 Act, which sets out six data protection principles that, as I have mentioned, apply to data processing by competent authorities for law enforcement purposes. Section 35(1) states:
“The first data protection principle is that the processing of personal data for any of the law enforcement purposes must be lawful and fair.”
Section 35(2) states:
“The processing of personal data for any of the law enforcement purposes is lawful only if and to the extent that it is based on law and either—
(a) the data subject has given consent to the processing for that purpose, or
(b) the processing is necessary for the performance of a task carried out for that purpose by a competent authority.”
The Police Federation has said that it is very unlikely that section 35(2)(a) will apply in this context. It has also said that, in the case of section 35(2)(b), the test of whether the processing is “necessary” is exacting, requiring a competent authority to apply its mind to the proportionality of processing specific items of personal data for the particular law enforcement purpose in question. Under sections 35(3) to (5), where the processing is “sensitive processing”, an even more rigorous test applies, requiring among other things that the processing is “strictly necessary” for the law enforcement purpose in question. Section 37 goes on to state:
“The third data protection principle is that personal data processed for any of the law enforcement purposes must be adequate, relevant and not excessive in relation to the purpose for which it is processed.”
For the purposes of the 2018 Act, the CPS and each police force are separate competent authorities and separate data controllers. Therefore, as set out in section 34(3), the CPS and each police force must comply with the data protection principles. A transfer of information by a police force to the CPS amounts to the processing of personal data.
The tests of “necessary” and “strictly necessary” under the first data protection principle and the third data protection principle require a competent authority to identify and consider each and every item of personal data contained within information that it is intending to process, and to consider whether it is necessary for that item of personal data to be processed in the manner intended.
The Police Federation has explained that, when the police prepare a case file for submission to the CPS for a charging decision, the practical effect is that they have to spend huge amounts of time and resources on doing so. They go through the information that has been gathered by investigating officers in order to identify every single item of personal data contained in that information; decide whether it is necessary—or, in many cases, strictly necessary—for the CPS to consider each item of personal data when making its charging decision; and redact every item of personal data that does not meet that test.
Furthermore, the National Police Chiefs’ Council and the CPS have produced detailed guidance on the redaction process, which emphasises that the 2018 Act is a legal requirement and that the police and CPS do not have any special relationship that negates the need to redact and protect personal information. The combination of the requirements of the guidance and of the Act represents a huge amount of administrative work for police officers, resulting in hours of preparing appropriate redactions.
Picture the scene: an incident occurs, and 10 police officers go to it. As they arrive, they all turn on their body-worn cams. They speak to different people and view different backgrounds with the cameras. They gather all sorts of different data, CCTV footage, Ring footage—just name it—and have to redact each in real time afterwards. It can take weeks to deal with just one incident. That burden was highlighted in the 2022 annual review of disclosure by the Attorney General’s Office, which recorded:
“We have heard evidence, from all members of the justice system but especially the police, that redaction of material for disclosure is placing a significant pressure on resources” and that one police force had invested £1 million in a disclosure specialist team solely to deal with redaction.
Furthermore, inevitably, such work is carried out by relatively junior officers who have no particular expertise in data protection, and much of it may never even be used by the CPS if the matter is not charged or the defendant pleads guilty before trial. Nationally, about 25% of cases that are submitted to the CPS are not charged. A significant proportion of that time and money could therefore be saved if the redaction of personal data by the police occurred after, rather than before, a charging decision had been made by the CPS.
That is exactly what my new clause would ensure happened. It inserts a proposed new section into the 2018 Act to exempt the police service and the CPS from complying with the first data protection principle—except in so far as that principle requires processing to be fair—or with the third data protection principle when preparing a case file for submission to the CPS for a charging decision, thereby facilitating the free flow of personal data between the police and the CPS. Where the CPS decides to charge, the case file would be returned to the police to carry out the redaction exercise before there is any risk of the file being disclosed to any person or body other than the CPS. In the 25% of cases where the CPS decides not to charge, the unredacted file would simply be deleted by the CPS.
My new clause would have no obvious disadvantages, as the security of the personal data would not be compromised and the necessary redactions would still be undertaken once a charging decision had been made. Furthermore, there are already provisions in the Bill designed to reduce the burden that part 3 of the 2018 Act imposes on law enforcement bodies. For example, as previously discussed, clause 16 will reduce the burden of the logging obligation in section 62 of the 2018 Act. The impact of those other provisions would be greatly enhanced if my new clause were also included in the Bill.
It is crucial that we do everything we can to ease the administrative burdens on police officers, so that we can free up thousands of policing hours and get police back on to the frontline, supporting communities and tackling crime. My new clause would go a long way to achieving that by facilitating the free flow of personal data between the police and the CPS, which would speed up the criminal justice process and reduce the burden on the taxpayer.
I hope not to have to press the new clause to a vote, and that the Minister will provide some encouragement that the issue will be resolved during progress of the Bill.
New clause 16 would amend section 40 of the Data Protection Act 2018, allowing police services to share unredacted data with the Crown Prosecution Service when it is making a charging decision. I am incredibly sympathetic to the aim that the hon. Member for Loughborough has set out, which is to get the police fighting crime on the frontline as much as possible. In oral evidence, Aimee Reed, director of data at the Metropolitan police, said that if the police could share information redacted before charging decisions were made, it would be “of considerable benefit”. She said that that would
“enable better and easier charging decisions” and
“reduce the current burden on officers”––[Official Report, Data Protection and Digital Information (No. 2) Public Bill Committee,
That would allow them to focus their time on other things. It is therefore good to see that concept being explored in a new clause.
To determine the value of the change, we would like to see a full impact assessment of the potential risks and harms associated with it. I hope that that could be conducted with the intention of weighing the change against the actual cost of the current burden that police face in redacting data. Without such an assessment, it is hard to determine whether the benefit to the police would be proportionate to the impact or harms that might occur as a result of the change, particularly for the subjects of data involved. That is not to say that any change would not be beneficial, but perhaps more detail could be explored with regard to the proposal.
As I believe that this is the final time that I will speak in this Committee, may I say a few words of thanks?
I thank my hon. Friend the Member for Loughborough, who has been assiduous in pursuing her point and has set out very clearly the purpose of her new clause. We share her wish to reduce unnecessary burdens on the police as much as possible. The new clause seeks to achieve that in relation to the preparation by police officers of pre-charge files, which is an issue that the National Police Chiefs’ Council has raised with the Home Office, as I think she knows.
This is a serious matter for our police forces, which estimate that about four hours is spent redacting a typical case file. They argue that reducing that burden would enable officers to spend more time on frontline policing. We completely understand the frustration that many officers feel about having to spend a huge amount of time on what they see as unnecessary redaction. I can assure my hon. Friend that the Home Office is working with partners in the criminal justice system to find ways of safely reducing the redaction burden while maintaining public trust. It is important that we give them the time to do so.
We need to resolve the issue through an evidence-based solution that will ensure that the right amount of redaction is done at the right point in the process, so as to reduce any delays while maintaining victim and witness confidence in the process. I assure my hon. Friend that her point is very well taken on board and the Government are looking at how we can achieve her objective as quickly as possible, but I hope she will accept that, at this point, it would be sensible to withdraw her new clause.
I thank the Minister greatly for what he has said, and for the time and effort that is being put in by several Departments to draw attention to the issue and bring it to a conclusion. I am happy that some progress has been made and, although I reserve my right to bring back the new clause at a later date, I beg to ask leave to withdraw the motion.
It has been a real pleasure to represent His Majesty’s loyal Opposition in the scrutiny of the Bill. I thank the Minister for his courteous manner, all members of the Committee for their time, the Clerks for their work and the many stakeholders who have contributed their time, input and views. I conclude by thanking Anna Clingan, my senior researcher, who has done a remarkable amount of work to prepare for our scrutiny of this incredibly complex Bill. Finally, I thank you, Mr Hollobone, for the way in which you have chaired the Committee.
May I join the hon. Lady in expressing thanks to you, Mr Hollobone, and to Mr Paisley for chairing the Bill Committee so efficiently and getting us to this point ahead of schedule? I thank all members of the Committee for their participation: we have been involved in what will be seen to be a very important piece of legislation.
I am very grateful to the Opposition for their support in principle for many of the objectives of the Bill. It is absolutely right that the Opposition scrutinise the detail, and the hon. Member for Barnsley East and her colleagues have done so very effectively. I am pleased that we have reached this point with the Bill so far unamended, but obviously we will be considering it further on Report.
I thank all my hon. Friends for attending the Committee and for their contributions, particularly saying “Aye” at the appropriate moments, which has allowed us to get to this point. I also thank the officials in the Department for Science, Innovation and Technology. I picked up this baton on day two of my new role covering the maternity leave of my hon. Friend Julia Lopez; I did so with some trepidation, but the officials have made my task considerably easier and I am hugely indebted to them.
I thank everybody for allowing us to get this point. I look forward to further debate on Report, in due course.
May I thank all hon. Members for their forbearance during the passage of the Bill and thank all the officers of the House for their diligence and attention to duty? My one remaining humble observation is that if the day ever comes when a facial recognition algorithm is attached to the cameras in the main Chamber to assess whether Members are bored or not paying attention, we will all be in very big trouble.
DPDIB33 Jonathan Sellors MBE, Legal Counsel and Company Secretary, UK Biobank (supplementary submission)
DPDIB34 Marie Curie
DPDIB35 techUK (supplementary submission)
DPDIB36 Information and Records Management Society
DPDIB38 Equality and Human Rights Commission
DPDIB39 TransUnion International UK Limited
DPDIB40 British Medical Association