Victims and Prisoners Bill

Debate between Baroness Bertin and Earl Howe

Committee stage
Wednesday 7th February 2024 Lords Chamber

[Baroness Bertin (Con)]

My Lords, I will also come in on this. I have huge respect for the noble Earl, and I have huge respect for the police, but I am afraid I cannot accept the idea that all 43 police forces and all chief constables will look at, understand and know the code of conduct, and that this will somehow be better than a judge saying that something is right or wrong when it comes to releasing therapeutic records. I would certainly like to meet him and others about this, ahead of Report.

[Earl Howe (Con)]

My Lords, I am the first to agree that a code of practice takes us only a certain distance. We also need to ensure that there is proper training for police and others. We had a short debate about this earlier in the week, and I hope I gave some useful information to noble Lords on that front. I am, of course, very happy to speak to my noble friends about this—as I am sure my noble and learned friend Lord Bellamy will be, once he gets better. It is not a simple matter, and I did not intend to suggest that it is.

On the amendment tabled by my noble friend Lady Bertin, as I have already said, it is vital that victims of crime can access the justice system and get the support they need without fear that their privacy will be violated. I am aware of concerns that deeply private information about victims, including notes from counselling sessions, have sometimes been used inappropriately to discredit victims—in particular, victims of rape and serious sexual offences—seeking justice through the criminal justice system. This can, as the noble Lord, Lord Marks, pointed out a minute ago, prevent victims from accessing the support they need in the first instance. That should not be the case, and I am grateful to my noble friend for raising the topic through the amendment.

My noble friend’s amendment seeks to put in place a judicial barrier for disclosure of counselling records and, with some exceptions, to create a requirement for the court not to grant access to this material where the disclosure was made in confidence by the victim to a person providing support services in a professional capacity.

Through the Bill, we are placing a new statutory duty on the police, as I have said, to request victims’ information from a third party only where necessary and proportionate in pursuit of a reasonable line of inquiry. Police must also provide information to the victim on what information has been requested, why, and how it will be used.

As I have outlined, the Government have asked the Law Commission to examine the trial process in sexual offence prosecutions and consider the law, guidance and practice relating to the use of evidence. This review will include consideration of whether a court direction should be required before accessing third-party material such as counselling records, and consideration of international examples where this system is in place.

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[Earl Howe (Con)]

My Lords, having tasked the Law Commission, as we have, with preparing a full-scale set of recommendations in this area, it would be unthinkable for us to pre-empt its report. I am afraid I must disagree with the noble Baroness. I realise how emotive and stressful an area this is for anyone who is intimately involved in it day to day, but that is how we have to proceed.

[Baroness Bertin (Con)]

I want to make a technical point about the Law Commission review, which I have full respect for. As I understand it, the commission will not be looking into pre-charge situations, so the amendment would still stand as that subject is not being tackled by the Law Commission. I reiterate that I just do not buy the idea that police officers all around the country are necessarily going to have the right training to enact the responsibilities that we are putting on them. We really will be pursuing this, I am afraid.

[Earl Howe (Con)]

I hear what my noble friend has said. I was able to give what I hoped was helpful information in our debate on Monday about police training, but it is by no means an overnight process, as I am the first to acknowledge. Still, work is under way, and it is surely an important ingredient in the mix.

We think that the Law Commission is best placed to conduct a holistic review of the existing system and to make recommendations for improvement where necessary, and the Government are most reluctant to make changes at this stage that could pre-empt the outcome of its review. However, we can all look forward to closely reviewing and responding to its findings and recommendations when they are published later in the year.

Before I turn to Amendment 173, I shall address the point raised by the noble Baroness, Lady Finlay, about victims with limited mental capacity. There are general points in the code about enhanced rights if the victim’s quality of evidence is likely to be affected because of a mental disorder. They may be supported by a registered intermediary if a mental disorder affects their ability to communicate. Some communications under the code might be done with a nominated family spokesperson if the victim’s mental impairment means that they are unable to communicate or lack the capacity to do so.

The Law Commission is looking at the impact of rape myths on people with disabilities or mental health conditions and how the current legislation and practice of the use of intermediaries is working in respect of complainants in sexual offence cases with disabilities and disorders.