Motion to Approve
That the Order laid before the House on 10 September be approved.
Relevant document: 27th Report from the Secondary Legislation Scrutiny Committee
My Lords, the purpose of this order is to bring into force a revised code of practice under the Criminal Procedure and Investigations Act 1996. The revised code will replace the current code, which was introduced in 2015.
Material that is obtained in the course of a criminal investigation may include material that tends to undermine the prosecution case or support the case for the accused. Disclosing such material to the defence is crucial to ensuring a fair trial and avoiding miscarriages of justice. Unfortunately, disclosure does not always take place promptly and can result in trials collapsing. This happened in several high-profile cases in late 2017, shaking the public’s confidence in the administration of justice.
A review of the efficiency and effectiveness of disclosure had already been announced by the then Attorney-General; its findings were published in November 2018. The review highlighted significant concerns with the culture around disclosure, engagement between relevant parties—prosecutors, investigators and defence practitioners—and the challenges of modern technology. It made a series of practical recommendations, many of which aligned with the findings of the Justice Select Committee’s inquiry into disclosure, which reported in July 2018. These included the need for a shift in culture so that disclosure was regarded as a core duty, better technology to review the volume of material available and clearer guidance on handling sensitive material.
Giving effect to these recommendations involved revising both the code of practice with which we are concerned today and the Attorney-General’s disclosure guidelines. The code sets out the manner in which police officers are to record, retain and reveal to the prosecutor material obtained in a criminal investigation. The guidelines are a more detailed document, aimed at prosecutors, investigators and defence practitioners, and designed to embed nationally consistent best practice.
The ethos of the guidelines has been reworked so that investigators and prosecutors are encouraged to adopt a “thinking approach” to the disclosure process, treating it as integral to the investigation rather than simply an “add-on”. To aid this new approach, and in an attempt to change the culture that exists around the current disclosure process, the guidelines have been reconstructed to follow the trial process, starting from the early investigatory decisions and ending at the conclusion of trial.
I am extremely grateful to all those across the criminal justice system who have come together to solve one of the most complex issues in it. The police and CPS especially have been at the forefront of this whole-system focus to ensure that we uphold our fair trial process. Through their joint working and close collaboration with government officials and other criminal justice partners, the revised guidelines and code of practice will ensure that a new thinking culture is embedded to improve the performance of disclosure practices.
One of the most significant changes for those on the operational front line is the introduction of a rebuttable presumption. The Attorney-General’s review found that there are certain items of material that almost always assist the defence and therefore meet the test for disclosure but are frequently not disclosed until there has been significant correspondence and challenge from the defence, wasting time and resources. The review therefore proposed that there should be a rebuttable presumption that certain categories of unused material meet the disclosure test. This change is not intended to encourage automatic disclosure, but it should support investigators and prosecutors in dealing with the volume of material that they are required to consider by acting as a “nudge”, requiring them to explain why the material in question does not meet the disclosure test if that is their conclusion.
The most important changes to the code of practice are associated with this recommendation, but the opportunity has also been taken to make other amendments designed to improve clarity. The streamlined disclosure certificate that forms an annexe to the existing code of practice has been omitted from the new code; the successor form is being revised under the auspices of the Criminal Procedure Rule Committee and the Lord Chief Justice will be invited to authorise its issue in due course.
In accordance with the process set out in the Criminal Procedure and Investigations Act 1996, the revised code of practice was published in draft for consultation in February this year, together with the Attorney-General’s revised guidelines. The deadline for responses was extended by three months to take account of the Covid-19 emergency. A total of 45 responses was received; the revised code was then amended slightly further in the light of them.
The order will bring the revised code of practice into force on 31 December 2020 or, in case both the necessary affirmative resolutions are not forthcoming by then, the day after the second resolution is passed. There is a particular reason for a relatively long delay before the intended commencement date: routinely preparing documents for service, including by redacting them where necessary, will have an impact on the police. That impact can be mitigated by greater use of computer technology to redact documents and images. Police forces are making preparations to enable them to do this, but some forces needed more time to ensure that the necessary software was ready. I beg to move.
My Lords, I thank the Minister for her explanation of the code of practice. Part 10 deals with the content of the indictment. It reminds me of drafting fairly simple indictments for prosecutions at Swansea borough court of sessions as a young barrister. At that stage of my career, it was not a simple task. After a long career at the criminal Bar, fortunately indictments had been granted by that stage, but I welcome anything that makes it simple.
The rules are put in a better order, which is a help, and the code winnows parts that are no longer required; I shall not spend any more time on that. The important provision is the rebuttable presumption on disclosure—or should I say the problem of non-disclosure? That was drawn to my attention as far back as 1998 when I was Attorney-General by the noble and learned Baroness, Lady Hallett, who was then chairman of the Bar Council. There has been an increase in problems ever since, though I thought it had been solved.
It is a very time-consuming operation to ensure that all documents, which may or may not relevant, are disclosed; unfortunately, short cuts have been taken in the past. The previous Attorney-General but two invited me to put my views forward in a meeting in his chambers. I thought that, where we are now, with the growth of mobile telephones, social media and the like, there should be a trigger mechanism to ensure that, whenever that issue might be raised, there should be special and particular attention. I welcome the change in culture and that, in future, there will be a rebuttable presumption that documents will be revealed unless, as I understand it, there is a good reason to the contrary. With those few words, I very much welcome what has been proposed.
In the Attorney-General’s review, published in November 2018, there was a section on disclosure pre-charge. Chapter 5 stated:
“The evidence given by almost all stakeholders to the Review is that early and meaningful engagement between the prosecution team and the defence is crucial to improve the disclosure process.”
It went on:
“This is not a new idea … but the recent increases in the volume and complexity of digital material encountered in investigations make it ever more important and urgent. Both the prosecution and the defence have a responsibility to identify the issues in a case as early as possible.”
The review points out that the suspect has a statutory right to silence but refers to the Criminal Justice and Public Order Act 1994, which permits a judge to direct a jury that inferences can be drawn if the suspect has failed to mention, when questioned, a fact that he could reasonably have been expected to mention. After that Act was introduced, and with interviews of suspects being routinely video recorded, it became the common practice for investigators to withhold full disclosure of relevant material. In a clumsy and unfair cross-examination, they would try, in the interview with a suspect, to lead him to make some assertion that could be triumphantly refuted by the sudden production of thitherto withheld material.
The unintended consequence of this was that experienced defence solicitors would advise their client to rely on his right to silence and refuse to reply in a so-called “no comment” interview. It was thought better to risk an adverse comment from the judge in his summing up than to have some contradictory account in interview laid before the jury, which may as well have arisen from confusion or misunderstanding as from guilt.
The Attorney-General, in his review, said:
“There is usually only very limited information or ‘pre-interview disclosure’ provided in advance of an interview under caution. There is nothing wrong with that as the investigators will wish to get a frank account of what took place from the suspect.”
I take issue with that. Investigators undoubtedly used trickery in the way of partial disclosure to confuse or confound the suspect, and I am sure it led to unjust convictions. The withholding of information does not lead to a
“frank account of what took place”
—rather the reverse.
The review report confirmed my view and contradicts itself. It says that
“evidence provided to the Review reveals a gap pre-charge where, (i) if the defence knew more about the prosecution case they might volunteer more information, and (ii) if the investigator and prosecutor knew about that information it would help them identify new lines of inquiry, particularly in relation to where exculpatory material might be on a digital device or social media.”
I wholeheartedly agree.
The fact of the matter is that nobody gains from a “no comment” interview. What generally happens at trial is that prosecution and defence agree that, rather than read out 100 or 200 pages or more of a “no comment” interview, a statement of the issues raised by the investigator, to which no reply was made, be prepared. If it is set out on a single page, it is far preferable for assisting the jury’s understanding of the interview.
The Attorney-General’s review had a positive recommendation, 5A, that the Attorney-General’s guidelines should
“include guidance on pre-charge engagement.”
I have yet to find that in the guidelines, but as far as this revised code is concerned—the subject of this statutory instrument—there is no reference to this very important issue. I would be grateful for an explanation from the Minister of why the clear recommendation of the Attorney-General’s review has been ignored in this code.
The second issue I would like to raise is the standing of the disclosure officer. Paragraph 3.1 of the code states:
“The functions of the investigator, the officer in charge of an investigation and the disclosure officer are separate.”
The investigator is naturally anxious that his investigations should lead to charge and conviction if the evidence is there. The disclosure officer, on the other hand, is under a duty to ensure that nothing that damages the prosecution case or capable of helping the defence—that is the common-law obligation—is concealed or withheld. But the code envisages that the investigator and the disclosure officer could be one and the same person. In my opinion, combining the duties of investigation with disclosure is highly undesirable. The responsibilities are, as the code explicitly states, separate. There is a potential conflict.
The third issue I would like to mention is the disclosure of social media records on mobile phones. This is particularly important in cases involving sexual assault, where a victim may discontinue a complaint rather than make her whole life public. We have discussed this many times, and I have urged the MoJ on, I think, three occasions on the Floor of the House to agree a protocol with prosecutors and defence lawyers, whereby if a defendant seeks to trawl over a mobile phone, he should first state the nature of his defence to show relevance and, secondly, provide the key words for a controlled search, such as dates, names and places, which he believes might reveal exculpatory material. Unhappily, the code contains no guidance on this very important issue, and the Minister might like to explain why. It cannot be said that the MoJ is ignorant of this issue.
My Lords, my introduction to law in government was as the Lord Advocate, then a member of the UK Government and responsible for the conduct of prosecutions in Scotland, among some other things represented in local areas by procurators fiscal. This arrangement was very old and intended to provide a fair system of prosecution across Scotland. Much later, an organised police force was created but bound to obey any relevant instructions of the Lord Advocate. This resulted in a unified prosecution system. In this part of the kingdom, the police had a more independent part in prosecution. During my time in the Government, the Crown Prosecution Service was set up, but it was not given the same formal relationship with the police to which I had been accustomed. This code is the result.
While I was Lord Chancellor, a case arose that demonstrated the importance of disclosure to the fairness of a prosecution. The Home Secretary, Michael Howard, decided that this was appropriate for legislation, and he kindly invited me to participate in the formulation of the legislation. After a good deal of thought, we agreed on the provisions of the Act, which—looking at them again after all this time—I think are rather neat and complete.
In the nature of their training, a difference in sensitivity on this matter is to be expected between lawyers and police officers, and serious difficulties emerged in some cases. The detailed review and consideration that have followed have produced this revised code. In my view, it captures the spirit of the statutory provisions. Of necessity, it contains important provisions of a bureaucratic nature. Some of these have been the subject of questions by the noble Lord, Lord Thomas of Gresford, who is extremely experienced in this area, and I commend to the Minister answering these questions, because they show there may be room for improvement in the code in due time—although I think it is important that the code as it now is should be brought into force as soon as possible.
My Lords, I thank the Minister for introducing this order. We have heard from a number of lawyers this afternoon. I am not a lawyer, but I was a police officer for more than 30 years, and when the noble Lord, Lord Blair of Boughton, was Commissioner of the Metropolitan Police, he asked me to do a review into rape investigation. I have to say, as the noble and learned Lord, Lord Mackay of Clashfern, has just said, that there is a difference of view between lawyers and police officers, and I think that is going to become apparent.
The Minister said that these new guidelines will make disclosure a core duty. The police have always considered disclosure to be a core duty, and as for the extent to which they fulfilled their obligations as far as disclosure is concerned, one has to ask how much of this was due to culture and how much of it was due to lack of resources, as other noble Lords have said. As the noble and learned Lord, Lord Morris of Aberavon, said, the problem is that it is a very time-consuming operation, and it has become even more time-consuming with the advent of such things as mobile phones.
I was concerned that the noble Baroness did not mention anything about the protection of complainants and their privacy, or, as my noble friend Lord Thomas of Gresford said, the potential for victims or complainants discontinuing a case to prevent the entire contents of their mobile phone being disclosed. I was very encouraged that the noble Baroness talked about greater use of computer technology, so that only the absolutely relevant parts of the contents of a mobile phone would be disclosed to the defence. My question is what funding is being made available to the police to invest in the computers and the software necessary to take that forward.
My noble friend Lord Thomas of Gresford talked about how, in the past, there have been cases where investigators have withheld information prior to interview to “trick the accused”, as I think he said—the police might use a slightly different term. It is interesting that the new guidelines talk about “pre-charge engagement” and the potential benefits of disclosing more to the defence before a decision is made to charge. The only thing I would say on that is that it could potentially bring about delays between arrest and charge, and could potentially lead to somebody who is a danger to the public being released on police bail, or released under investigation, because of the delays caused by the disclosure process being brought forward before a charge is made.
Rebuttable presumption is a good way forward, but it will be effective only if proper resources and training are made available both to investigators and prosecutors. Clearly, another issue for the Government is what additional resources will be made available to enable the police to more effectively comply with this new guidance.
My noble friend Lord Thomas of Gresford also mentioned the standing of the disclosure officer and the fact that there is nothing in the guidance about the importance of the investigating officer being separate from the disclosure officer because there will be a potential conflict of interests between the two. The disclosure officer should have a completely independent view of what might be helpful to the defence, while the officer pursuing a prosecution might take a different view.
As the noble and learned Lord, Lord Mackay of Clashfern, said, these guidelines are an important step forward but potentially do not go far enough, for the reasons that other noble Lords and noble and learned Lords have given this afternoon.
My Lords, I too thank the Minister for her explanation of this statutory instrument. I am also not a lawyer. I remind the House that I sit as a magistrate in central London. When I started as a magistrate, some 15 years ago, if we had a trial about a street fight, for example, we would usually have a handful of witnesses and maybe some CCTV to help us reach our verdict. Now, the very first thing that happens when there is a street fight is that it is filmed. Anyone in the vicinity will walk towards that street fight and film the activity. When the police arrive, they will all be wearing body-worn video cameras. This all means that there is a huge amount of digital data generated for one street fight. It is for the police and the CPS to reduce this huge amount of data to something that is manageable and fair, so it can be taken to trial for the court to determine the results. This is not a trivial exercise and it goes to the heart of the problem we are discussing today: the disclosure of evidence. We have seen where this has gone wrong in high-profile cases, but it is a very live issue in a huge proportion of the day-to-day cases that we see in courts up and down the country.
There was a damning report by the Justice Select Committee in 2018, which identified that the CPS may have prioritised case timeliness over getting the decisions right. It concluded that
“disclosure failures have been widely acknowledged for many years but have gone unresolved, in part, because of insufficient focus and leadership by Ministers and senior officials.”
Today’s statutory instrument seeks to amend the CPIA 1996 by introducing a revised code of practice. The code sets out the way police and others must record, retain and reveal to the prosecutor material obtained during the investigation, including material that may undermine the case against the individual. The code was last revised in 2015 and the main revision is the introduction of the rebuttal presumption, which other noble Lords have agreed is a good step forward. It says that certain types of unused material should meet disclosure tests and should be revealed unless there is a reason not to reveal them. In the Attorney-General’s 2018 review, he concluded that there were certain types of unused material that almost always assisted the defence but were not frequently disclosed. The introduction of a rebuttal presumption seeks to address this point.
The Minister will be aware that 95% of all criminal cases are heard in magistrates’ courts, and that the 5% heard in Crown Courts tend to be more serious cases with longer sentences applied to them. So in magistrates’ courts, there is a very high volume of cases, most of which are simpler and shorter. Nevertheless, a number of cases in magistrates’ courts are also very long and complex, even though they are less severe. The Attorney-General’s review has made a number of cross-cutting recommendations that affect both Crown Courts and magistrates’ courts, but in paragraph 23 in particular it makes the point about the disclosure test for high-volume crime cases—these are the type of crime cases seen in magistrates’ courts. The Attorney-General’s review recommends that there should be a rebuttal presumption in favour of disclosure for these types of cases. There is a huge cost implication for this. Can the Minister say how adequately she believes they have looked at the cost of this review process?
It is certainly my experience—and, I suspect, that of anyone who has sat in a magistrates’ court—that disclosure, or problems with disclosure, very often leads to delay in cases being heard. There is very often the obligation on the defence to call for an additional case management hearing, or something like that, because they are just not getting the disclosure which they are due under the current rules, and of course there will be more disclosure under these revised rules. Can the Minister say what review the Government will be doing of this? Is there any additional money or training for prosecutors so that they can meet these new obligations, so that this will not be yet another source of delay, which we see so often in magistrates’ courts?
We as the opposition party are supportive of these changes and in particular of the rebuttal presumption. We look forward to reviewing them and to all people participating in the court process believing that they have had at least a fair hearing.
I want to pick up on a couple of points made by previous speakers, the first of which is from the noble Lord, Lord Thomas. It is certainly my experience, in particular in youth courts, that a very large proportion of youths—I would say a majority—go “no comment”. They do so because that is what they pick up from media and their friends, and they are advised to do it by their lawyers. It is not helpful to the process. The noble Lord, Lord Thomas, made a point about lawyers taking a calculated risk that it would not be held against the youth too much, but it is slowing up the process, which is not for the benefit of the youths. It is not that unusual that, when you hear the youth’s explanation, it is one that deserves a hearing, but they did not say so when they were in the police station. That is an important point which the noble Lord, Lord Thomas, raised. I look forward to the Minister’s answer.
I am grateful to all noble Lords who spoke in this short debate for their comments. I will attempt to answer all of them; if I miss anything, I will look at Hansard and make sure that we get a written response to noble Lords.
I start by saying that I am very grateful to my noble and learned friend Lord Mackay for his support in this matter. Times have indeed changed since he considered the original legislation, and I am delighted by the recognition of this code and the related guidelines as part of the Government’s response to dealing with those changes. We have to think of this code alongside the changes in the way people use social media and technology, which is the challenge to the justice system at the moment.
Most noble Lords are, for the most part, supportive of this new code, and most brought out the fact that the most important part of it is probably the rebuttal presumption. All respondents to the consultation, including the police, agreed that key categories of material are generated in most investigations which will often, although not always, fall to be disclosed to the defence—things such as custody records, 999 calls, and so on. The presumption applies to material in these categories. It will alert the police and the prosecution to the need to consider such material for disclosure to the defence. Items in these categories ought to be considered for disclosure as a matter of routine. However, this has not always been done. The noble and learned Lord, Lord Morris, and the noble Lords, Lord Thomas, Lord Paddick and Lord Ponsonby, all agreed that this was probably the right way forward.
The noble Lords, Lord Thomas and Lord Paddick, quite rightly brought up the victim’s right to privacy. We welcome the ICO report on this and recognise the importance and complexity of protecting the victim’s and the complainant’s data. The Attorney-General is committed to working alongside criminal justice partners and the ICO to ensure that this can be done in a way that is proportionate, protecting privacy but securing justice, with safeguards in place to maintain trust and avoid unnecessary intrusion. This work is ongoing.
Important and welcome guidance on how to balance the right to a fair trial with the right to privacy, and confirming what victims of crime can expect in the course of an investigation, was given by the Court of Appeal in the recent Bater-James case. That set out key principles that investigators and prosecutors must follow when assessing when it is appropriate to seek a victim’s digitally stored data. Those principles are amplified and supported with further guidance in the Attorney-General’s guidelines. However, there is a delicate balance in order to ensure that there is no unjustified intrusion into any privacy rights, and we must make sure that any line of inquiry regarding victims’ and witnesses’ personal information is pursued only if it is reasonable in the context of that case and that collection is conducted in accordance with the law.
The noble Lords, Lord Thomas, Lord Paddick and Lord Ponsonby, talked about the resources and training required, both for the police and for the justice system. Technology has contributed significantly to the disclosure challenge—there are no two ways about it; this is the modern era—through the proliferation of digital data and the amount of material available to investigators in the course of volume crime investigations, as noble Lords said. The Government are committed to investing in tools and training that can help the criminal justice agencies to meet these challenges, while recognising that there is no one silver bullet. There has been an unprecedented focus over the past two years on ensuring that investigators and prosecutors are properly equipped to deal with large volumes of electronic evidence and to fully understand their roles and obligations to all parties within the criminal justice system. Through the close working of the national disclosure improvement board, the police are currently rolling out a technological solution which will assist with the swifter redaction of sensitive information in the material that falls to be disclosed. This will ease the burden and save front-line officers’ time as they adapt to the changes brought in by the guidance and the code.
The noble Lords, Lord Thomas and Lord Paddick, also asked what would happen, roughly, if the Government do not get the desired effect and disclosure performance does not improve. That is extremely important: when you change something, you always need to go back and see whether it has made a difference. We are confident that the changes made by the code and the guidelines will assist in making the necessary improvements that are required by embedding a change of culture and a thinking process into disclosure obligations. We know that some significant changes are being made and that developments in technologies mean that disclosure practices will continue to evolve. To that end, the Attorney-General has committed to Parliament in the Justice Select Committee that she will undertake an annual review of the operation of the guidelines, with input from key partners and stakeholders, to ensure that they are making a positive impact in improving the performance of disclosure obligations.
The noble Lords, Lord Thomas and Lord Paddick, brought up the pre-charge stage and whether these changes will lead to large inefficiencies at that point. The police, the CPS and all relevant criminal justice partners have been represented on the disclosure sub-group, a forum established by the National Criminal Justice Board to better understand the issues and complexities of the disclosure process and to make recommendations to the Attorney-General on how that process might be improved. We accept the apprehension that this will have an impact on policing resources, but we remain of the view that the changes contained in the code and the guidelines will bring real benefits to the quality of charging decisions by ensuring that the prosecutor can review all appropriate information when making the decision. It will also further embed the thinking process for disclosure, which is one of the fundamental principles on which the code and guidelines are predicated.
We now get to the concerns of the noble Lord, Lord Paddick, as a non-lawyer but an ex-policeman, about the burden on the police. We need to be very clear that the police have been engaged throughout this drive to improve disclosure and we are very grateful for their support. They are clear that it is important that critical documents should routinely be considered for disclosure. We acknowledge the impact on the police of routinely preparing documents for service by redacting them where necessary. This impact can be mitigated by greater use of technology and police forces are making preparations to enable them to do so. These preparations are well in hand, but to allow sufficient time for them to be made, as I said in my opening remarks, the date when the guidelines and code will come into force will be no earlier than 31 December to give them that little bit of extra time.
We come on to police resourcing. As I know the noble Lord, Lord Paddick, knows, the police funding settlement for 2020-21 sets out the biggest increase of funding for the police since 2010. The Government will provide a total funding settlement of up to £15.2 billion in 2020-21, which is an increase of £1.1 billion compared with 2019-20. The PCCs will receive £700 million to recruit up to 6,000 additional officers by the end of March next year. That will be shared across England and Wales.
It also important to remember that the NPCC’s digital policing portfolio published its landscape review in 2019, assessing the high-level solutions currently available in the technology marketplace and outlining the requirements for the nationally scalable solution for redacting sensitive material. The NPCC’s work with techUK will ensure that interoperability between different criminal justice systems will be at the forefront of thinking, which will save money and make some difference to police resources, which we know are, and always will be, stretched. In response to the noble Lord, Lord Thomas, the Government have announced £85 million to the CPS over the following two years to help it with its increased caseload, in particular from the 20,000 additional police officers, but also to better deliver the disclosure obligations that this brings.
I think the noble Lord, Lord Ponsonby, also raised funding for the defence community for the cost of early advice to its clients. In certain cases pre-charge engagements can be a positive mechanism to ensure that reasonable lines of inquiry are identified at an earlier stage in proceedings. In the near future, the Ministry of Justice will consult on the fee scheme to support this principle and pay fairly for the work that is done.
I have got to the end of my time—I am probably a bit over—but if I have missed anything I will make sure that I write to noble Lords and I will put a copy in the Library. I commend the instrument and the code it introduces.