The Police, Crime, Sentencing and Courts Bill was first announced in March 2021, and yet has already reached the Committee stage of the House of Lords, having been rushed through the Commons at near record speed. The government’s Home Secretary, Priti Patel, felt motivated to pursue the Bill following the protests which took place throughout the summer’s lockdown, with specific focus on Black Lives Matter and Extinction Rebellion. The Bill is truly an all-encompassing leviathan, ranging from police powers, sexual offence law, protesting rights and reckless driving, to property eviction, chosen gender on a criminal record, child exploitation, prisoner resettlement and pet theft. Beyond being a prehistoric approach to legislating on issues such as crime, the haste with which it has been pushed through the commons is of great concern. This article will focus on Chapter Three: ‘Extraction of Information from Electronic Devices’, which expands police powers into the remit of searching electronic devices, having untold implications in numerous contexts.
This chapter comes as the first real attempt to legislate some form of cyber rights into a statutory framework, following an ambiguous surge of arguments against online ‘anonymity’. This included the pitiful attempt of using the murder of Sir David Amess to push for this cyber agenda, despite it being a totally unrelated matter. The Chapter highlights that ‘an authorised person’ may collect data from a specified device to ‘prevent, detect, investigate or prosecute crime’. On 27th October, Lord Paddick highlighted that the amendments extended the powers of who an ‘authorised person’ can be in specific contexts. If a device is used by an individual with lacking mental capacity, amendments suggest that a social worker can authorise for a device to be accessed for information. The definition even stretches to ‘any responsible person who is aged 18 or over’.
Sections 36 to 42 highlight powers that have already been in place. Privacy International has already made the case that ‘police are using highly intrusive technology to extract and store data from individual’s phones, on a questionable legal basis’. The concern over this particular chapter is that it is in fact regressive to the functioning of law and order upon application. Dame Vera Baird, the Victims Commissioner, has repeatedly reiterated the notion that rape and sexual assault survivors are not necessarily comfortable with handing over their devices, especially for information to potentially be used against them at trial.
This impasse, namely the refusal to hand over private data to the authorities, has meant that 42.8% of victims ended up withdrawing claims as a result of ‘evidential difficulties’, while 21% of cases had concerns about digital downloads and access to medical records. While it is both progressive and critical that the Lords have agreed to implement a new provision making it illegal for the police to place ‘undue pressure’ on a victim, they are yet to address the fact that it doesn't do anything to help victims feel reassured that the content on their phone will be safe from from scrutiny or legal persecution
The Code of Practice for the Bill is useful for providing further explanation about interpretation for future readers, as it highlights expectations around necessity, proportionality and reasonable belief. Lord Rosser titled the data extraction as ‘digital strip searches’, requesting that the bill only searches through information that is relevant to ‘a reasonable line of enquiry’. He goes on to say ‘surely being under any pressure in the context that we are talking about [rape survival] is undue’. The opposition (Labour) raised this point within the Commons at almost every debate, though it was actively ignored alongside many other criticisms. In the Lords, while Labour asked for limits against unjustified police demands for person information held by third parties (i.e. medical and social services records), and against ‘extreme and indiscriminate data collection’ (something originally protected against when the U.K. was in the EU [Privacy International, C-623/17]), the conservative Lords instead asserted that alleged victims would be ‘fully informed of the reasons that the information has been sought and how the information will be used’. This, again, fails to address the fundamental privacy concern about searches being indiscriminate.
An amendment of particular importance to protesting rights was brought forward by Lord Moylan, entitled ‘Retention by the police of personal data relating to non-criminal conduct perceived to be motivated by hostility’. This provision is especially confusing, because it refers to non-crime hate incidents, enabling data to be collected and saved on personal records, despite the individual not having committed a crime. Baroness Chakrabarti raised a point about whether the ‘so-called soft information or police intelligence that never matures into a charge should sit unregulated, off the statute book, as a matter of police discretion and administration’.
This amendment muddies the waters of legal certainty, placing a permanent mark of suspected future criminality on someone's personal record, which can often follow them for years. Across the debates there was much mockery of ‘woke’ culture, but a failure to genuinely address the importance of having a right to protest and raise valid concerns around social justice. If we are to associate Lord Moylan’s provision with increased powers for the police and the home secretary, as appointed in chapter three (part four), it appears as though even if protestors within a public assembly don’t commit a crime, their presence can be recorded as a form of ‘non-crime hate’, on the mere matter of expressed hostility.
The terminology appointed is intentionally ambiguous, and leaves much to the imagination as to what could potentially come of it. Fundamentally, the PCSC bill will fundamentally stifle public assembly and protest, but it is the state that will either expand or restrict the statutory grounds for crime and punishment in relation to this, and other elements of public order and surveillance. If the Bill succeeds, the courts will also interpret the legislation and provide judgements they deem to be ethically sound whilst also satisfying the original legislator. Ultimately, the Bill is a detrimental piece of drafting, impacting basic human dignity and widening powers of the state in excess of standards seen before in the Western world. The Conservative government has long aspired to abolish the Human Rights Act 1998, but once this Bill passes, they will have stomped our national legal ethos deep beneath the soil.