That the Grand Committee do report to the House that it has considered the Criminal Procedure and Investigations Act 1996 (Code of Practice for Interviews of Witnesses Notified by Accused) Order 2010.

Relevant documents: 9th Report from the Joint Committee on Statutory Instruments.

My Lords, the order before us today is to bring into operation a new code of practice under Section 21A of the Criminal Procedure and Investigations Act 1996. The code has been laid before each House in accordance with the statutory requirements. The code of practice will enable us to bring into force Section 34 of the Criminal Justice Act 2003. I can confirm that it is our intention to do so on the same day as the code enters into force; namely, 1 May.

Section 34 of the Criminal Justice Act 2003 adds a new Section 6C to the Criminal Procedure and Investigations Act. This new section extends the existing requirement on the accused to disclose alibi witnesses before the trial in Crown Courts, and in some cases in magistrates’ courts, to defence witnesses generally in all proceedings. The new section will primarily strengthen the court’s case management powers and in so doing encourage the more effective progression of criminal proceedings. It will also enable the police to carry out criminal record checks at an earlier stage and so assist the prosecution to prepare more expeditiously any bad character applications that may be required before the trial.

The background to the code of practice lies in the parliamentary passage of the new witness disclosure requirement. Some concerns were expressed at the time by the Home Affairs Committee, and subsequently, that the requirement might enable the police to apply undue pressure on defence witnesses. These concerns were to some extent overstated; the police will often be aware of the existence of a witness, merely as a natural consequence of their ordinary investigative procedures, and that has always been the case. Our position then and now is that it is important to allay any possible perception of a risk of police impropriety in relation to witnesses disclosed under the new provisions, and that is why we legislated for the present code of practice.

The code is essentially a safeguard. It sets out clearly the procedures expected of the police and other investigators in arranging any interviews with the disclosed witnesses, and in conducting them. We anticipate that in practice such interviews will be relatively rare. The code of practice has been the subject of extensive consultation. The primary legislation requires only consultation with four named authorities, but we conducted a full public consultation exercise in late 2004. As a result of that consultation, a number of points came to light requiring further consideration. We have recently reconsulted the four statutory consultees.

It is fair to say that the code has grown somewhat as a result of the consultation process. During the passage of the then Criminal Justice Bill, we supplied Parliament with an indicative version, which covered rather less than a page of text. The final version before us today goes into considerably more detail and is set out more formally. I trust that the Committee will take that as a sign of the seriousness with which we have approached the exercise.

On the detail of the code, the fundamental point we need to bear constantly in mind is that the whole process of being interviewed is entirely voluntary on the witness’s part. The witness can decline to be interviewed at the outset and walk away from the interview at any stage. One could always suggest further areas in which the code might be more prescriptive but, given the voluntary nature of the process on the witness’s part, there is a limit to the usefulness of including further detail. Our view is that the document now strikes the right balance in this respect.

The case for the new witness disclosure requirement, and hence the code, remains strong. The case of R v Warley Magistrates is symptomatic. In that case, a magistrates’ court attempted to use the Criminal Procedure Rules to obtain advance disclosure of defence witness details very much along the lines that the statutory provision will require. The High Court determined that there was no power to do this under the Criminal Procedure Rules, but the court described Section 34 and its related provisions as,

“matters of some importance in showing how a case management scheme requiring defence witness disclosure might properly and efficiently operate”.

We endorse those sentiments of approval. We agree with the court that Section 34 forms the basis for a sound witness disclosure scheme and remain convinced of its case management advantages.

This code of practice has been widely consulted on and carefully prepared. I commend it to the House.

My Lords, I thank the Minister for introducing the order. I also thank the usual channels for removing the two statutory instruments that we were due to debate this afternoon on a separate Motion—the draft Damages-Based Agreements Regulations 2010 and the draft Conditional Fee Agreements (Amendment) Order 2010. They will be debated in the House next Thursday rather than the Moses Room. That decision follows comments by the Merits Committee on those two statutory instruments, and representations from others including the noble Lord, Lord Martin of Springburn, who has tabled a Motion to Resolve that the House regrets that the Government have laid those instruments before it. No doubt we will debate that in due course. The reason I mentioned those instruments is that one of the noble Lord’s principal concerns was that there had been a lack of consultation. On this order, therefore, I am grateful that the Minister emphasised that for once his department has had extensive consultation of the appropriate type.

On the code itself, as the Minister knows, my honourable friend Henry Bellingham in another place put a number of questions to the Government and received perfectly good answers, so I do not think it will be right to waste the time of the Committee this afternoon by asking anything further. I am grateful that the Minister emphasised the voluntary nature of the process and that it would apply only if the appropriate witness was prepared to come forward and be interviewed. It was right that he should emphasise that. We will not oppose the order.

My Lords, when Section 34 was introduced into this House in the Criminal Justice Bill 2003, I expressed my reservations about it in these terms:

“It is difficult enough to give evidence anyway, but even more difficult to give evidence for the defence when a policeman appears at one's door, asking ‘Are you really sure that that was what happened?’ Sometimes their nerves fail; on other occasions police statements are obtained and used to cross-examine in minute detail”.

I was referring to the experience with alibi notices. I said:

“The disclosure of defence witnesses would give rise to the possibility of police pressure, which will do nothing for the administration of justice”.—[Official Report, 16/6/03; cols. 570-71.]

Indeed, the administration of justice is my main concern.

In introducing the order, the Minister referred to case management and efficiency and that is all very well, but he will know from his own experience that very often issues arise during the trial quite out of the blue and it is necessary sometimes to call defence witnesses quite unexpectedly without going through all the giving of notices and so forth. I am concerned that this will cause injustice. I can see that in particular cases there could be a reference to the European court, ultimately, about whether this impinges on a fair trial.

Having said that, and having expressed my opposition to the principle, the code that has been produced after some seven years includes a lot of safeguards. I am interested about why it has taken seven years to produce. I think that indicates the sensitivity of the issue. In particular, I am very interested in the Explanatory Memorandum, which states that:

“It is intended to monitor closely the operation of the provisions in practice".

What has the Minister in mind by way of monitoring in future? How often will it take place and what sort of reports will be available to the profession and to the judiciary about how well the scheme operates? It is a very sensitive area, as I have said, and I can see that in certain circumstances there will be injustice. It is very important that the Government keep their eye on these provisions.

As always, I am grateful to the two noble Lords on the Opposition Front Benches for their contributions to this short debate. I am delighted that the consultation process has pleased the noble Lord, Lord Henley, on this occasion. He is right to stress its voluntary nature. It is fundamental to this order. It is not compulsory for a probable or possible defence witness to agree to be seen by the police. I acknowledge what the noble Lord, Lord Thomas of Gresford, said. These are very sensitive areas, and they need to be looked at closely.

The alibi notice requirements have been in place for so long that I was practicing at the Bar when they first came in. The noble Lord will know better than me how successful they have been. I do not believe that there has been any proof that they have not been by and large successful, although it is always essential that safeguards are maintained. The code, which the noble Lord was kind enough to say contains quite a number of safeguards, is a more solid piece of work than the original code of conduct intended some years ago.

The noble Lord asked why the code has been delayed so long. It is regrettable. The delay has had much to do with competing pressures on resources and the need to settle the detail properly. Police interviews of defence witnesses, like defence interviews of prosecution witnesses, are a sensitive area, and considerable caution is required in regulating them. Following the Warley judgment, I understand that policy and the relevant parliamentary instruments were almost ready by the Summer Recess 2008. Unfortunately, as both noble Lords will remember, in June 2008 there was a major House of Lords judgment in the Davis case on witness anonymity and the ensuing emergency legislation intervened. These developments, the need to re-enact the emergency legislation and the new provisions on witness anonymity in last year’s Coroners and Justice Act had the effect of pushing the code to one side again. It is regrettable, but the matters are now before the Committee.

As to the ECHR point, it is possible that any police pressure on witnesses could result in an Article 6 point being taken. However, Section 34 will not alter the position, and we hope that the code will protect police conduct regarding witnesses whose details are given. The usual PACE Section 78 considerations and other provisions are there to protect any defendant, and judges make sure that defendants have a fair trial.

The question on monitoring was perfectly proper and sensible. We are considering proposals from the Criminal Procedure Rule Committee relating to disclosure time limits in general. That includes defence statements. We will listen carefully to any concerns raised by the rule committee about the operation of the new provisions. We will be watching how this works closely.

Finally, I do not think that the noble Lord chides me, but he has pointed out that there are more important considerations than court management in the conduct of a criminal trial. Of course justice must remain the main consideration, but I think that all of us would agree that there is room for improvement in the way in which we manage our trials, particularly in the Crown Court.

Is it intended that the prosecution could in certain circumstances produce a notice of defence witnesses when those witnesses have not been called? As the noble Lord will know, the calling of witnesses by the defence is an extremely important issue. Very often, it depends entirely on the way in which a trial has gone as to whether a witness who may at one stage seem to be of help to the defence is seen to be no longer. It is very important to know whether a notice will be admissible.

It is not a question that I can easily answer. My experience of defending, many years ago, was that sometimes it was a bit of a game as far as defence witnesses were concerned. Occasionally, you heard tales of defence witnesses being brought into court in the hope that their evidence would be over before the police had had the chance to check up on their previous convictions. It sometimes worked and sometimes it did not. To be honest, I think that most often it did not work. But the noble Lord has asked a good question. I may even have had references made in trials on the question of defence witnesses, but any judge would be extremely cautious in allowing in in the normal course of events any list that talked about potential defence witnesses. We will have to see how it works and this is one of the areas we will be monitoring.