The planned changes to the Victims and Prisoners Bill, expected to come into force sometime in 2024, will mean the police will no longer require a survivor’s consent when requesting access to third-party material during their investigations.
What is third-party material?
Third-party material is anything held by another organisation about you, for example, medical records, counselling notes and ISVA notes. Sometimes the police will request these as part of an investigation, but they should only be requesting them if it is reasonable and proportionate.
The current process is that if the police want to access any third-party material, they will need to discuss with the survivor exactly what it is they want to access, why they need it and get a signed consent form. If the survivor says no, then the police cannot request it from the organisation holding the information. Although this can feel like pressure on survivors to make a decision either way, it gives them the choice and control over their own personal data, which is important.
What do these changes mean for survivors?
The upcoming change means that the police will no longer need to get consent from the survivor, but they will be able to bypass this and contact third-party organisations directly to request the information they feel is relevant. They will however let the survivor know and allow them to object to the request. We are unsure of how this will work in practice and it raises questions about whether a survivor will be able to object before the request is put in to the organisation, or even before the organisation share the requested information with the police.
Once the police have access to the information, it will form part of disclosure to the defence if the case gets to court. This means as soon as the police have access to the information, it cannot be taken out of the investigation and if the case gets to court, the defence team will have access to it also.
How do we feel about this?
The ISVA team here at Survivors’ Network are concerned about the impact this change will have. When someone experiences sexual violence, the control is taken away from them in that situation which is why we strongly believe and standby survivors’ retaining as much control as possible over the next steps, including who accesses their data. It is so important that survivors feel empowered and heard particularly throughout a police investigation into their assault and we are worried that this change is moving in the opposite direction to this.
What are our concerns?
- This change relies on the robust data protection procedures of other organisations. As a team and as an organisation, we are confident in our survivor-centred approach to these requests, which will continue to revolve around obtaining survivor consent, and not sharing any information without this. However, other organisations who may not be so used to getting requests of this nature, may provide excessive information, or share information without a full understanding of what a proportionate request from the police is.
- Although there are rules around what the police are allowed to request, unfortunately, there are still occasions where the police make excessive requests. These changes could create processes and an environment within the police where excessive requests are normalised.
- The change in this bill removes an additional layer of protection and oversight over a survivor’s personal information.
- How this change will be publicised and if the police will make survivors aware of this at the point of reporting?
- How will the police inform survivors of their right to object and at what point in the process this will be raised? Will they give enough time for the request to be paused or stopped and on what grounds a survivor will be able to contest the request? For example, will the simple fact they do not consent to their data being accessed by the police be enough, or will certain criteria need to be met for the request to be stopped? These questions will need to be answered before the bill comes into force and we hope to have discussions with Sussex Police about how best to navigate this locally.
- These changes could potentially deter survivors from reporting due to the reduced control they will have over their data throughout an investigation.
We stand by the principles of informed consent; survivors should be aware of what the process will involve before making any decisions.
We hope to spread awareness of these changes to survivors who already have an open investigation, or to those who may think about reporting in the future. We also hope to work closely with Sussex Police on ensuring a continued suspect-centred approach to investigations and ensuring this change in law does not mean survivors’ rights will be infringed upon.