In Part 2 of the Police, Crime, Sentencing and Courts Act 2022 (prevention, investigation and prosecution of crime), after Chapter 3 insert—

“Chapter 3A

Requests for information relating to victims

44A Requests for information relating to victims

(1) A victim information request must be made in accordance with this Chapter.

(2) In this Chapter, a ‘victim information request’ means a request by an authorised person to another person to provide information which relates to a third person who the authorised person has reason to believe is or may be—

(a) a victim, or

(b) at risk of being a victim.

(3) A victim information request may be made only if the authorised person—

(a) has reason to believe that the person to whom the request is made holds the information sought,

(b) has reason to believe that the information sought is relevant to a reasonable line of enquiry which is being pursued, or is to be pursued, by the authorised person or another authorised person, and

(c) is satisfied that the request is necessary and proportionate to achieve the purpose of preventing, detecting, investigating or prosecuting crime.

(4) The reference in subsection (3)(c) to crime is a reference to―

(a) conduct which constitutes one or more criminal offences in England and Wales, or

(b) conduct which, if it took place in England and Wales, would constitute one or more criminal offences.

(5) Subsection (6) applies if the authorised person thinks that, in making the request, there is a risk of obtaining information other than information necessary to achieve a purpose within subsection (3)(c).

(6) The authorised person must, to be satisfied that the request is proportionate, be satisfied that—

(a) there are no other means of obtaining the information sought, or

(b) there are such other means, but it is not reasonably practicable to use them.

(7) In making a victim information request or deciding whether to make such a request (including giving notice under section 44B or deciding whether to give such notice) an authorised person must have regard to the code of practice for the time being in force under section 44D.

(8) In this section—

‘criminal offence’ includes—

(a) a service offence within the meaning of the Armed Forces Act 2006, and

(b) an SDA offence within the meaning of the Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 (S.I. 2009/1059);

‘victim’ has the meaning given by section 1 of the Victims and Prisoners Act 2023.

(9) This section is subject to sections 44B (notice requirements for victim information requests) and 44C (content of victim information requests).

44B Notice requirements for victim information requests

(1) The authorised person must (subject to subsection (5)) give notice of a victim information request to the person to whom the information sought relates (‘V’).

(2) Notice under this section must be in writing—

(a) specifying or describing the information sought by the victim information request,

(b) specifying the reason why the information is sought, and

(c) specifying how the information will be dealt with once it has been obtained.

(3) Notice under this section must be given—

(a) on or before the date on which the victim information request is made, or

(b) if that is not reasonably practicable, as soon as is reasonably practicable after that date.

(4) If V is a child or an adult without capacity, notice under this section is given to V by giving it to—

(a) a parent or guardian of V or, if V is in the care of a relevant authority or voluntary organisation, a person representing that authority or organisation, or

(b) if no person described in paragraph (a) is available, any adult who the authorised person considers appropriate.

(5) The authorised person need not give notice under this section, or specify a particular matter when giving notice, if the authorised person considers that doing so―

(a) is not reasonably practicable in the circumstances,

(b) might interfere with the investigation or enquiry for which the information is sought or any other investigation or enquiry which is being pursued, or is to be pursued, by the authorised person or another authorised person, or

(c) might risk causing serious harm to V or another person.

(6) In this section―

‘adult’ means a person aged 18 or over;

‘adult without capacity’ means an adult who, within the meaning of the Mental Capacity Act 2005, lacks capacity to understand a notice under this section;

‘child’ means a person aged under 18;

‘harm’ includes physical, mental or emotional harm and economic loss;

‘relevant authority’ has the same meaning as in Chapter 3 of this Part (see section 38(11));

‘voluntary organisation’ means a body (other than a public authority) whose activities are not carried on for profit.

44C Content of victim information requests

(1) A victim information request must be in writing―

(a) specifying or describing the information sought,

(b) specifying the reason why the information is sought, and

(c) specifying how the information will be dealt with once it has been obtained.

(2) The authorised person need not specify the matters mentioned in subsection (1)(b) or (c) if the authorised person considers that doing so―

(a) is not reasonably practicable in the circumstances,

(b) might interfere with the investigation or enquiry for which the information is sought or any other investigation or enquiry which is being pursued, or is to be pursued, by the authorised person or another authorised person, or

(c) might risk causing serious harm to the person to whom the information sought relates or another person.

44D Code of practice

(1) The Secretary of State must prepare a code of practice for authorised persons about victim information requests and compliance with this Chapter.

(2) The code may make different provision for different purposes or areas.

(3) In preparing the code, the Secretary of State must consult―

(a) the Information Commissioner,

(b) the Commissioner for Victims and Witnesses,

(c) the Domestic Abuse Commissioner, and

(d) such other persons as the Secretary of State considers appropriate.

(4) After preparing the code, the Secretary of State must lay it before Parliament and publish it.

(5) The code is to be brought into force by regulations made by statutory instrument.

(6) A statutory instrument containing regulations under subsection (5) is subject to annulment in pursuance of a resolution of either House of Parliament.

(7) After the code has come into force the Secretary of State may from time to time revise it.

(8) A failure on the part of an authorised person to act in accordance with the code does not of itself render the person liable to any criminal or civil proceedings.

(9) But the code is admissible in evidence in criminal or civil proceedings and a court may take into account a failure to act in accordance with it in determining a question in the proceedings.

(10) References in subsections (2) to (9) to the code include a revised code, subject to subsection (11).

(11) The duty to consult in subsection (3) does not apply in relation to the preparation of a revised code if the Secretary of State considers that the proposed revisions are insubstantial.

44E Authorised persons

(1) In this Chapter, each of the following is an ‘authorised person’—

(a) a constable of a police force in England and Wales;

(b) a member of staff appointed by the chief officer of police of a police force in England and Wales;

(c) an employee of the Common Council of the City of London who is under the direction and control of a chief officer of police;

(d) a constable of the British Transport Police Force;

(e) an employee of the British Transport Police Authority appointed under section 27 of the Railways and Transport Safety Act 2003;

(f) a constable of the Ministry of Defence police;

(g) a National Crime Agency officer;

(h) a member of the Royal Navy Police, the Royal Military Police or the Royal Air Force Police;

(i) a person designated by the Director General of the Independent Office for Police Conduct under paragraph 19(2) of Schedule 3 to the Police Reform Act 2002;

(j) a person who has been engaged to provide services consisting of or including the obtaining of information for the purposes of the exercise of functions by a person mentioned in any of paragraphs (a) to (i).

(2) The Secretary of State may by regulations made by statutory instrument amend subsection (1)—

(a) so as to add a reference to a person;

(b) so as to remove a reference to a person;

(c) so as to modify a description of a person mentioned.

(3) Regulations under subsection (2) may contain transitional, transitory or saving provision.

(4) A statutory instrument containing regulations under subsection (2)(a) or (b) (whether alone or with other provision) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.

(5) Any other statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.”.—(Edward Argar.)

This new clause requires police officers and other authorised persons, when requesting information about a victim or potential victim of crime from a third party, to ensure that the request is relevant, necessary and proportionate for law enforcement purposes and to follow new procedural safeguards.

Brought up, and read the First time.

I beg to move, That the Clause be read a Second time.

With this it will be convenient to discuss the following:

Amendment (a), after new Clause 44A(3)(c) insert—

“(d) is satisfied that the victim has been informed of their rights in relation to the request.”

Amendment (b), after new clause 44C(1)(c) insert—

“(d) including a full statement of the victim’s rights in relation to the request.”

This is our first opportunity to debate Government new Clause 4, which will make provisions to ensure that the police and other specified law enforcement organisations request information from third parties in respect of victims of criminal conduct only when it is necessary and proportionate and in pursuit of a reasonable line of inquiry.

It is, in the interests of a fair trial, sometimes necessary for police and other law enforcement bodies to request information about a victim of criminal conduct from a third party to support investigations in a variety of crime types, including in rape and serious sexual offences. The material can include a range of personal records that can provide valuable insight into an offence and support allegations as well as eliminate suspects.

However, we have heard considerable evidence that requests for information about victims of criminal conduct can sometimes be excessive, seeking information that is not relevant to a case, with records being requested that date back long before the allegation was made, or being used to test victim credibility. Those inappropriate requests mean that victims do not always feel confident in coming forward to report crimes due to unnecessary invasions into their privacy, or feel disenfranchised by the criminal justice process. Through the end-to-end rape review, we committed to limiting all requests for victim information to what is necessary and proportionate in pursuing a reasonable line of inquiry in support of a fair trial. The Amendment fulfils that commitment.

The new clause will address the issue of unnecessary and disproportionate requests for third party material and it inserts a new chapter 3 into part 2 of the Police, Crime, Sentencing and Courts Act 2022. The proposed new section 44A of that Act will set out in law the core requirement that third party material requests in respect of victims of criminal conduct are made only where the information requested is necessary and proportionate in line with a reasonable line of inquiry.

The addition of proposed new section 44B means that the police will be required to give notice to victims when their information is requested. Aside from in very limited circumstances, victims must be informed about what information is being requested, and why and how the information will be used. Provision is made for notifying an alternative adult, such as a parent or guardian, where the victim is a child or an adult who lacks capacity.

The increased transparency of the process will ensure that the police provide clear and consistent information to victims. That will ensure that victims are better supported and have the confidence that their records will not be accessed unless it is necessary and proportionate to the investigation. It will also ensure that victims feel confident in the handling of their sensitive personal information through access to clear and comprehensive information about the request being made.

The addition of proposed new section 44C will ensure that the police provide clear and detailed information to accompany victim information requests to third parties, ensuring transparency between law enforcement and third parties. The police must provide specific details about the information being sought, and why and how the material will be used. There are limited exceptions, such as where the provision of information would interfere with an investigation or risk causing serious harm to an individual.

Additionally, third parties might previously have struggled to return material quickly. Ensuring that requests are properly set out and made only when necessary and proportionate is expected to have a positive effect on timeliness, which may help to combat lengthy investigations that can be traumatic to victims, especially in relation to rape and other sexual offence cases. A consistent approach is needed to ensure that victims of crime are supported no matter where they live. The clause will do exactly that.

The addition of proposed new section 44D makes provision for a new power for the Secretary of State to prepare a code of practice to which authorised persons must have due regard when requesting third party material. We will publish a draft of the code to coincide with later stages of the passage of the Bill.

The code will also give best practice guidance to law enforcement when obtaining victim information. It will add further clarity and consistency to help law enforcement agencies to fulfil their commitments to both victims and third parties when requesting material. The new clause also sets out the obligation on the Secretary of State to consult the Information Commissioner, the Commissioner for Victims and Witnesses, the Domestic Abuse Commissioner, and such other persons as the Secretary of State considers appropriate, about the content of the code of practice. That will ensure that the views and insights of those expert bodies are fed into the code.

Finally, proposed new section 44E sets out the authorised persons who are bound by these new obligations. They include police forces in England and Wales, the British Transport Police, the Ministry of Defence Police, the National Crime Agency and the service police. A power is taken for the Secretary of State to add, remove or modify a reference to a person on this list by statutory instrument, which will ensure that the new clause captures the right law enforcement bodies—for example, if a new investigative body is established or an existing body changes its name.

The new clause is a significant step forward in creating a space where victims feel confident that our criminal justice system will support them in coming forward to report crimes, including those such as rape and other serious sexual offences. This is the first time that law enforcement will have a clear and consistent approach to requesting victims’ information, which will help to ensure that a victim’s right to privacy is balanced with a defendant’s right to a fair trial. I will respond to the amendments to the new clause in my wind-up speech.

I thank the Minister for expanding on new Clause 4 and I welcome the Government proposals to protect third-party materials. However, new clause 4 does not go far enough, as it just reinforces what is already in law. It does not offer new protections for therapy notes, which is a critical issue for many stakeholders and survivors.

Take my own constituent Sarah, who was sexually assaulted. After a three-year wait, she finally had her day in court. During the trial, the defence barrister used therapy notes from bereavement counselling that Sarah had received when she was a child to illustrate an apparently damaged mental state. The defence barrister then went on to use counselling notes from Sarah’s therapy following a near-fatal car accident. Sarah said of her trial:

“I felt like I was being publicly beaten and humiliated. I wouldn’t advise anyone to go through it. They destroy you.”

In fact, Sarah was cross-examined for two days, with those therapy notes being used to weaken and discredit her case.

Additional safeguards specific to therapeutic records are essential because such records are uniquely private. If such safeguards are not introduced, survivors will continue to be harmed and retraumatised by the system, just as Sarah was. There are some serious concerns about new clause 4 that need to be addressed; I hope that the Minister will listen and acknowledge the severity of what could happen if the new clause passes unamended.

The Centre for Women’s Justice has also expressed concerns about this matter and the Government’s new clause should correctly reflect existing UK law. However, the wording of the new clause is not based on the consent of the survivor; the survivor is only given notice rather than being asked for their consent. If in sexual violence cases the basis is not consent, the data is usually sensitive data. According to the Data Protection Act 2018, there is a higher threshold of “strictly necessary” for sensitive data.

However, the new clause does not accurately reflect the correct Data Protection Act test; it applies a lower threshold of only “necessary and proportionate”. I understand that the new clause applies to all offences, and not just sexual and violent offences against women and girls. However, the failure to include the higher threshold for sensitive personal data will particularly adversely impact sexual offence investigations.

The new clause is not only insufficient but incredibly damaging. I hope that the Minister will agree that it should be amended to add provision for sensitive personal data.

I really welcome the Minister’s attempt to tackle the misuse of information relating to victims as set out in the Government’s new Clause 4; I thank him for making this happen.

I have called for action on this issue for years, as have most of my colleagues. It is simply unacceptable that victims and survivors who have been subjected to the trauma of sexual violence or abuse have had some of their most private and personal material requested via their counselling service. That is then trawled through by all manner of unknown people, in order for that material to be used to undermine, discredit and even humiliate victims and survivors through the court process. We know that when survivors refuse to hand over the material, cases have been dropped and discontinued. While I appreciate that rape convictions are at an all-time low, justice for rape and abuse survivors cannot be contingent on the violation of their privacy.

Even when victims willingly give notes, the impact is still traumatic. I will give the example of someone who I will call Alex. Alex is a survivor of sexual violence and emotional abuse by an ex-partner. After a lengthy police investigation, during which blanket requests were made for Alex’s counselling notes, the suspect was eventually charged. When describing the impact that accessing her personal records had on her, Alex said:

“I’d given my phone, my therapy records, my social care records, my everything to this case. I feel like I am the one being investigated whilst he roams the streets. This has been horrific for my mental health…I spent a long time with him being traumatised yet even longer by the police and CPS being re-traumatised.”

Sadly, Alex’s experience is not uncommon. Although pre-trial therapy guidance encourages victims and survivors to access the support that they need, and does that to prioritise wellbeing, if someone fears that their notes from sessions can still be routinely accessed and misused, that will undermine the safe healing space that I know the Minister is trying to create. We hear day in, day out, how many victims feel that they have to choose between accessing therapy or accessing justice.

When justice agencies request counselling notes, that fundamentally compromises the central role of counsellors, which is to create a safe and confidential space to explore issues in. One Rape Crisis counsellor explained the difficulty of having to monitor what the victims share. She said:

“it seems to go against the foundation of therapy—that it is an open and non-judgemental space—when your notes could be taken literally to judge you.”

We must also ensure that the police fully understand guidance and Laws. Police professionals receive little-to-no training in the new CPS guidelines, and are continually telling survivors that they cannot or should not access pre-trial therapy sessions. There is also currently no monitoring in place around the advice that police are giving to survivors about pre-trial therapy, or follow-up on actions when therapy is accessed.

The Bluestar Project states that the previous CPS guidance, from 2002, has led to the mistaken belief that accessing therapy before the criminal justice process has finished will cause the criminal case to fall. That belief persists even though new guidelines were published in 2022. The CPS has conducted little dissemination of the new guidelines and limited training, and there is no formal evaluation of the impact on survivors’ access to services or multi-agency awareness of the new changes. We currently have no way of knowing any difference that the guidelines are or are not having.

The Bluestar Project understands that staff in the CPS have received some training about trauma-informed care, but most lack an understanding of how survivors access therapy, the benefits of it and how therapy sessions actually work with clients. That continues to contribute to inappropriate and blanket requests for notes as a form of evidence. Multi-agency training is the fastest way to reduce fear and misconception around pre-trial therapy. Will the Minister say what steps he will take to counter that lack of awareness and understanding, both within the CPS and the police?

On how Government new clause 4 is worded, there is still some concern that the survivor is only given notice rather than being asked for consent. What is more, according to the Data Protection Act 2018, in sexual violence cases the data is usually deemed “sensitive data”. As the Minister will be aware, there is a higher threshold of “strictly necessary” for sensitive data. That language is used in the Information Commissioner’s Office guide to law enforcement processing. However, the Government new clause does not accurately reflect the correct test from the 1998 Act, as it applies a lower threshold of only “necessary and proportionate”. I would like the Minister to consider and speak on that.

Furthermore, Government new clause 4 applies to all offences, not just sexual offences. While the protection of the information of all victims is welcome, it is crucial that the Government recognise the particular problems faced by victims of sexual offences—not least that they are much more likely to face this practice than other victims of crime. Additionally, the failure to include the higher threshold for sensitive personal data will particularly adversely affect sexual offences investigations. I urge the Minister to strengthen this wording if at all possible when the Bill returns.

My amendments to the Government’s new clause aim to improve it by ensuring that victims’ rights are considered and understood. Amendment (a) would mean that a victim information request could be made only if the authorised person is satisfied that the victim had been informed of their rights in relation to the request. Amendment (b) would mean that a victim information request must be in writing, including a full statement on the victim’s rights in relation to the request. If the request were also required to take those steps, those asking for the information, such as the police and CPS, as well as the victim therapist, could all be informed of how best to protect the information wherever possible.

The Bluestar Project has shown that the more we raise awareness of guidance, law and how these procedures are supposed to work, the more it empowers victims and counsellors. That would help to achieve the aims of the Minister, but the Minister could go further. As stated previously, counselling records require a distinct approach because of their usage deterring victims from accessing vital support. There are other methods of counselling privilege that uphold defendants’ rights to a fair trial while protecting victims and survivors from inappropriate, irrelevant or intrusive requests. I am not asking for a blanket ban. As we heard from Dame Vera Baird,

“In order to deal with this now, there can be no complete ban, clearly. After a decade or more in which the police and the CPS have treated it as axiomatic that you take these documents from a complainant, we must make someone else take that decision. It has to go to the court, so that a provisional hearing can decide whether the material should be accessed by the Crown and whether it should go to the defence. And of course the complainant needs to be represented fully at that hearing.”––[Official Report, Victims and Prisoners Public Bill Committee, 20 June 2023; c. 31, Q70.]

I am in favour of a higher disclosure threshold to give stronger protections for this material, but it would always be for a judge to decide whether the material should be disclosed if the Minister decides to go down that route. This strikes a middle ground between balancing survivors’ and defendants’ rights where confidential counselling notes may be disclosed in a criminal proceeding only if the information is deemed to be of substantial probative value and the public interest in disclosure substantially outweighs that of non-disclosure. A judge should determine whether counselling records should be disclosed by applying a strict public interest test, which would include the need to ensure the continued efficacy of the confidential therapeutic relationship. I urge the Minister to consider taking further steps specifically to tackle the counselling notes of victims of rape and sexual assault during the passage of the Bill.

I am grateful to the Shadow Minister, the hon. Member for Cardiff North, and the hon. Member for Rotherham. Having set out the rationale behind our new Clause, I will confine myself to addressing the amendments subsequently spoken to. I am grateful to Opposition Members for amendments that seek to ensure that before making a victim information request, the authorised person is satisfied that the victim has been informed of their rights in relation to the request for their personal records, and the rights of the victim are outlined in the victim information notes. I will turn briefly to some of the broader points made by the shadow Minister and the hon. Member for Rotherham at the end.

The purpose of the Victims and Prisoners Bill is to put victims at the heart of the criminal justice system. The proposed clauses will ensure that law enforcement requests for victim information do just that. They will be further supported by the code of practice, but as we—and, indeed, the hon. Member for Rotherham—have made clear, we must seek to strike an appropriate balance while not compromising the right to a fair trial. The statutory code of practice will contain guidance on how to carry out the duties outlined by the legislation. That will include best practice around making requests and informing victims. The police must have due regard to the code when making requests.

Alongside the code of practice, we have developed a notice for law enforcement to use to inform victims about any requests for their personal records. This notice has been designed to ensure that law enforcement can meet their legal obligations regarding informing victims, outlined in the new duties. The code of practice will recommend authorised persons to use this notice. To accompany the notice, we have also developed a Q&A that law enforcement should provide to victims alongside the notice to enable them to understand the terminology and what is actually being asked for. That will include answers to common questions that victims and survivors might have, as well as information regarding their rights. It will be clear in the code of practice that it is best practice to use this notice and to provide the associated guidance to victims.

The resources above will ensure that victims are suitably informed of their rights and of the request. Officials will work closely with the National Police Chiefs’ Council to ensure that the police are fully aware of, and trained in, their responsibilities under the legislation with respect to ensuring that victims are aware of their rights.

I am not sure how many rape cases the Minister has personally handled, but as somebody who has handled thousands, I have to say that if the police just check a box by saying to a victim in front of them, “We’re going to have to ask for your medical records and any other counselling records,” she is likely to say, “Okay, okay,” without having any understanding of or guidance on exactly what that means.

Will the police, following this ABC guide, say, “If you have ever said anything about your sexual behaviour, completely separately from the fact that this person raped you, it will be used against you in court”? The police will not sit down with a rape victim and talk at length through exactly what might be used. The police do not know, for a start. Also, victims do not know what is in their counselling notes: they do not see them or have them. I want to put a burst of reality into a theoretical argument.

I am grateful to the hon. Member for Birmingham, Yardley, who knows whereof she speaks, having worked extensively in this area. We believe that this is the appropriate approach. Our code of practice will ensure that victims are made aware of their rights and that the police are aware of their responsibilities under the new duty, including the responsibility to inform victims. We will publish the wording of the draft code of practice during the Bill’s passage, prior to its conclusion in this House and the other place, to enable colleagues to comment.

I turn to the specific points made by the hon. Member for Rotherham. I reassure her that new Clause 4 will in no way replace the requirements of the Data Protection Act 2018, which will continue to apply for lawful processing once the police receive the material from a third party. The code makes it clear that the Act imposes additional legal requirements, over and above those in the code, and that when police make a request they are required to take those requirements into account to ensure that the processing of the data is compliant with the Act.

More broadly, may I gently push back on the argument that this is routinely asked for? The whole purpose of the clause is to ensure that it is asked for not routinely, but in specific circumstances.

I can speak only as a Constituency MP, but it routinely comes across my desk, so I must challenge the Minister on that point.

The reason I push back on the hon. Lady is that this is the purpose of the new Clause: to highlight the limited circumstances in which it should be happening.

The hon. Lady raised a number of broader points about the appropriate mechanism. She raised the New South Wales model and a range of others. I know that there are lots of campaigns around this. I will make only two points. First, as we have made clear throughout, we must strike the appropriate balance between a fair trial and confidentiality, and its impact. Secondly—this is the key point—it would be wrong to prejudge, in making an important step forward, the broader work being undertaken by the Law Commission and Professor Penney Lewis in this space, the scope of which I know will range more widely.

This is an important step forward in the context of the vehicle that we have before us. I put on the record my gratitude to the Home Office officials who have done so much work to get us to this point.

Question put and agreed to.

Clause accordingly read a Second time.

Does the hon. Member for Rotherham wish to move either Amendment in the group?

On the basis of what the Minister says, I will not move my amendments (a) and (b).

New clause 4 added to the Bill.