Serious violence duty in PCSC Bill would gut UK data rights

Serious violence reduction orders

The information collected under this duty could also be used to inform the imposition of serious violence reduction orders (SVRO), which are detailed in Part Ten of the bill. Under the newly conferred powers, police will be able to stop and search anybody given an SVRO whenever they are in a public place, and without the need to form a reasonable suspicion.

Although SVROs are tied to a person’s previous convictions, the legislation states: “It does not matter whether the evidence [considered in imposing an SVRO] would have been admissible in the proceedings in which the offender was convicted.”

Following a public consultation held by the Home Office in July 2019, the government announced that it would introduce a new duty on public bodies through upcoming legislation, which would ensure relevant services work together to share data and knowledge with the goal of preventing serious violence altogether.

According to a Home Office impact assessment of the duty, published in December 2020, incidents of serious violence have been on the rise since 2014, with offences involving bladed weapons increasing 84% between June 2014 and June 2020.

It added that the aim of the serious violence policy “is for local areas to take a multi-agency approach to understand the causes and consequences of serious violence, focused on prevention and early intervention, and informed by evidence and rigorous evaluation of interventions. This is often referred to as a ‘public health’ approach.”

A Home Office policy paper from July 2021 added that the duty and the collaboration it entails would allow authorities to produce strategies specifically aimed at preventing and reducing serious violence in their local areas. “By ensuring that all of these authorities work together in this way, strategies can be put in place to effectively prevent and reduce serious violence and make communities safer,” it said.

However, a number of human rights groups and civil society organisations have said the PCSC Bill’s violence reduction measures would fundamentally undermine people’s data rights, ruin trust in the essential services that are supposed to protect people, and further fuel discriminatory policing against minority groups.

Data sharing under the duty

According to Griff Ferris, legal and policy officer at Fair Trials – a non-governmental organisation (NGO) campaigning for a fairer justice system globally – the PCSC Bill will impose a legal duty on essential service providers that compels them to share information with the police, which would ordinarily only be shared in relation to the investigation of a specific offence.

“What the duty proposes to do is allow them to get ahold of that data outside of the context of the investigation of a specific offence,” he told Computer Weekly. “I’d say it’s a real extension of police surveillance to be able to get ahold of this information just because they want it, and not because they’re involved in the investigation of a specific offence.”

Ferris added that, in the draft of the Bill, there is a clear intention to avoid the new information sharing powers from being subjected to existing data protection rules: “There are specific clauses in the Bill which are trying to undermine current data protection laws, which is so insidious.”

Clause 15, for example, said: “This section does not authorise a disclosure of information that… would contravene the data protection legislation (but in determining whether a disclosure would do so, the power conferred by this section is to be taken into account).”

A policy paper published by human rights campaign group Liberty in July 2021 claimed the effect of this wording is “that existing data protection legislation is to be read in line with the duties under the PCSC Bill, rather than the other way around”.

It added that other already-established public sector data sharing mechanisms, including Multi-Agency Risk Assessment Conference (MARAC) and Multi-Agency Safeguarding Hub (MASH) processes, do not override these authorities’ data protection obligations.

“By contrast, Clauses 9, 15, 16, and 17 of the PCSC Bill have been drafted to override the professional and legal safeguards around personal data that exist to safeguard people’s rights,” wrote Liberty.

“Further, the broad drafting of the [serious violence prevention] duty under Clause 7 means that any information disclosure –whether that is about individuals’ health status, religious beliefs or political opinions and affiliations – could ostensibly be justified under the banner of ‘preventing and reducing serious violence’. Altogether, these provisions are likely to give rise to significant and severe breaches of individuals’ data rights… and their right to a private life (protected under Article 8 ECHR).”

Ferris added that the level of information sharing being proposed with police “will make people feel unable to safely access those essential services, which will obviously result in significant harm”.

Speaking to Computer Weekly in January 2021 about the legal appeal to remove the UK government’s controversial “immigration exemption” from the Data Protection Act 2018 – which ended up being successful – the then-Scotland director of Open Rights Group (ORG), Matthew Rice, said healthcare records are often included in NHS-Home Office data sharing agreements, preventing people from seeking medical help out of fear their information will be handed to immigration services.

Parliamentary debates

Similar concerns around the data sharing the PCSC Bill would enable have also been brought up in Parliamentary debates, with a number of Lords questioning how it will impact already marginalised communities.

“Unprotected data gathering and sharing is a very disturbing part of the Bill. For example, it mimics what has happened with the Prevent programme,” said Baroness Jones on 14 September 2021.

“That programme has disproportionately targeted Muslims and minority ethnic communities, and it is likely that human rights infringements will be felt most acutely by those already over-policed and overrepresented in the criminal justice system. These measures could have a disproportionate impact on marginalised communities and groups advocating for social change.”

According to Labour peer Lord Rosser, speaking in Parliament on 25 October 2021, the Bill “appears to introduce a mandatory blanket obligation for clinical commissioning groups and local health boards to share confidential health information with the police, replacing… the existing system, which allows healthcare professionals to disclose confidential information on public interest grounds on a case-by-case basis.”

Computer Weekly could find no record in Hansard of an MP opposing the Bill’s proposed data sharing arrangements.

Liberty also confirmed to Computer Weekly that, by the time of publication, no amendments have been made to the Bill that would change the proposed data sharing arrangements.

Opposition

Opposition to the data sharing arrangements, however, has been steadily building outside of Parliament since July 2021, with a wide range of healthcare organisations speaking out against how the violence reduction measures would threaten professional duties of confidentiality and relationships of trust.

This includes the General Medical Council and the British Medical Association, a coalition of more than 650 frontline health sector workers, the British Association for Counselling and Psychotherapy, the British Psychological Society and national data guardian Nicola Byrne.

Commenting on the PCSC Bill’s proposed data sharing arrangements, the Information Commissioner’s Office (ICO) said it was currently in the process of assessing the privacy concerns raised.

“We recognise that appropriate data sharing is a valuable tool to help the police and public authorities tackle violent crime,” said an ICO spokesperson. “But where people have a bad experience of their data being misused, they lose trust in the system.

“Good data protection is essential to increase public confidence in the way their information is handled. That means police and public authorities must have robust data protection policies and training in place, so data can be shared in a proportionate, fair and safe way.”

Data sharing and SVROs

The dangers of sharing sensitive personal data between essential public services and law enforcement bodies have also been shown by the Metropolitan Police Services’ (MPS) Gangs Matrix, a police intelligence database used to identify and monitor individuals considered to be linked with gangs.

In November 2018, an investigation by the ICO found that the data sharing under the Gangs Matrix resulted in serious breaches of data protection law, and that despite the questionable integrity of the data it held on individuals, the MPS shared the information widely with a range of organisations.

This included the UK Border Agency, the Crown Prosecution Service, a number of housing associations and local authorities, schools, and Jobcentre Plus sites.

A report published by Amnesty International ahead of the ICO investigation in May 2018 documented a number of well-evidenced examples of how the MPS’s data sharing with these organisations led to innocent people losing access to services or experiencing discrimination as a result.

Both Amnesty and the ICO investigation also found that the Matrix disproportionately affected black, Asian and minority ethnic (Bame) people, with 78% of those listed in the database being black.

Ferris said the data sharing proposed under the serious violence prevention duty “appears to be a reformulation” of the data sharing that occurred with the Gangs Matrix.

“The policy was completely racialised, and this seems to be no different,” said Ferris. “Under the Matrix, many innocent people, including victims of violence, were wrongly and unfairly implicated by that data collection and sharing between police, local service providers and local authorities, which disproportionately targeted and criminalised friendships between young black men. The outcomes of that data sharing included exclusion from education, eviction from housing, the denial of welfare; those were all deliberate tactics as part of the Gangs Matrix, which was aided and abetted by that data sharing.”

Provisions on SVROs

In terms of the PCSC Bill’s provisions on SVROs, Ferris said that while is no direct link made in the draft text between the data sharing under Part Two and the SVROs in Part Ten, “it’s almost certain” the data collected by police from essential service providers will be used to inform the orders.

“They want to collect this data for the purpose of reducing serious violence, [a policy] which these orders are also part of,” he said. “We’re concerned about… the way that they might target people to then subject them to the orders, because the way they will actually potentially find people to subject them to these orders will be via the information gathered under the duty.”

In the Home Office’s impact assessment of the duty, it said “some of the interventions as a result of this policy may disproportionately indirectly impact the black, male and young population… when looking at rates, it is clear that black people were disproportionally convicted or cautioned [for knife and offensive weapon possession offences], with the rate being 186 per 100,000 for black individuals, 34 for Asian individuals, and 28 for white individuals.”

It added: “The aim of the legislation is as much about preventing people with these protected characteristics from becoming victims as it is about them becoming offenders. Data indicates that black and male individuals are more likely to be victims of serious violence and there is also often a disproportionate impact of certain knife crime offences on young people.

“Therefore, benefits could disproportionality fall to those with certain characteristics… If the benefits of the policy were to outweigh the costs, as currently estimated, this policy would have positive, not adverse, treatment and be objectively justified.”

A cycle of criminalisation

According to Liberty’s paper, the PCSC Bill “effectively creates an individualised, suspicionless stop and search power, entirely untethered to a specific and objectively verifiable threat.”

It said that people subject to an SVRO “are likely to face intrusive monitoring of their daily lives. Similar tactics to those used to police people on the Gangs Matrix may be used – continually patrolling and surveilling the same postcodes and thereby subjecting people to chronic over-policing.”

While suspicionless stop and searches can currently be authorised under Section 60 powers, these authorisations are limited to specific locations and time periods.

“By contrast, SVROs will last for a minimum of six months and up to a maximum of two years, and they can be renewed and extended further on the application of the police,” said the Institute of Race Relations (IRR) in a blog post published in May 2021.

“They can also be executed in any police area in the country. To give effect to this, those subject to SVROs will be legally required to notify the police in any areas they move to or choose to reside for more than a month, and failure to do so will itself constitute a criminal offence punishable by up to two years’ imprisonment.”

Reason for conviction

While SVROs will generally be imposed on the basis of a conviction, Fair Trials, Liberty, ORG, IRR and others have pointed out that the conviction does not have to be for the offence the orders are supposed to be targeting.

“The Bill provides that a court may impose an SVRO on any person aged 18 or over who it has convicted of an offence involving the use of a bladed article or other offensive weapon or who had such a weapon with them when the offence was committed,” wrote IRR.

“However, it also allows for an SVRO to be made in respect on any person aged 18 or over who is convicted of an offence, not necessarily one involving his or her own use or possession of a bladed article or other offensive weapon, but who is found on a balance of probabilities to have known or ought to have known that another person would use or be in possession of such a weapon in the commission of an offence.”

Ferris said this means people could be slapped with SVROs “merely by association” with someone involved in a violent incident, and pointed out that the standard of proof needed to impose an SVRO is much lower than the standard of proof needed to actually convict someone for a crime. “It doesn’t use the criminal standard of proof, rather it’s the civil standard of proof, which means it’s a much lower threshold,” it said.

“It will ultimately result in a cycle of criminalisation whereby young black people, who are already stopped and searched more than white people and any other group, will be subjected to these orders.”

Liberty added: “Communities of colour are already searched at significantly higher rates, with black people 8.9 times more likely to be subject to a stop and search than white people.

“Both in terms of who they are applied to and who bears the brunt of their enforcement, SVROs will reflect, deepen and compound the discrimination marginalised communities face at every juncture of the criminal justice system.”

Other uses of ‘serious violence’ information

Ferris added that information collected through the serious violence duty could also be used to fuel predictive policing tools, which the UK’s Equalities and Human Rights Commission told the United Nations in March 2020 could replicate and magnify “patterns of discrimination in policing, while lending legitimacy to biased processes”.

In their book, Police: A field guide, which analyses the history and methods of modern policing, authors David Correia and Tyler Wall also argue that crime rates and other criminal activity data reflect the already racialised patterns of policing, which creates a vicious cycle of suspicion and enforcement against black minorities in particular.

“Predictive policing… provides seemingly objective data for police to engage in those same practices, but in a manner that appears free of racial profiling… so it shouldn’t be a surprise that predictive policing locates the violence of the future in the poor of the present,” they wrote.

On 7 September, a number of academics also warned the House of Lords Justice and Home Affairs Committee about the dangers of predictive policing.

Rosamunde Elise Van Brakel, co-director of the Surveillance Studies Network, for example, noted that the data “often used is arrests data, and it has become very clear that this data is biased, especially as a result of ethnic profiling by the police” and that all the time “this data has this societal bias baked in, the software will always be biased.”

The PCSC Bill is currently in the “report stage” of its passage in the Lords, which will be followed by its third reading. If passed at the third reading without amendments, it will then return to the Commons before being sent to the monarch for royal assent to become law.