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Legal System: Prosecutorial Policy

Volume 788: debated on Thursday 18 January 2018

Question for Short Debate

Asked by

To ask Her Majesty’s Government what assessment they have made of the extent to which the legal system does justice to alleged victims in the commencement of prosecutions, the disclosure of evidence to defendants, and the relationship between the Crown Prosecution Service and the police authorities.

My Lords, I hope this debate is timely, given the almost daily reports of difficulties in sex-case trials. I have spent over half of my adult life at the criminal Bar, and I am deeply aware of the necessity to respond to the needs of justice as problems arise.

When I became Attorney-General, the CPS was in a mess on a number of issues. I invited a distinguished retired judge, Lord Justice Glidewell, to chair an inquiry in which the noble Lord, Lord Dear, played an important part. I am not suggesting there is a need for such a broad inquiry now, but some particular aspects of prosecution require some form of independent review.

The Attorney-General, by statute, supervises the CPS. The House was told last week by the Minister that the practice of him meeting the director frequently and regularly continues. I was glad of that assurance. In my time, the directors would come to discuss problems in individual cases, and particularly those which might be of interest to the public. In most cases, the decision to prosecute was taken by the directors but, in the cases raised, it was of mutual assistance to discuss problems; I hope that, as a senior criminal law practitioner, I was of assistance in the delivery of justice.

I hope the decision in the Worboys case to prosecute only 23 counts—and, of those, only a single case of rape—was discussed with the Attorney-General. I fully understand the rationale of selecting only the best cases to prosecute. However, the machinery to ensure that the victims—including more than 100 other women, according to the police—knew the reasons for non-prosecution in their cases is crying out to be revisited. I have no comment to make on the sentence involving one allegation of rape.

The trial judge, the late Mr Justice Penry-Davey, whom I knew well, had wide experience of criminal law and more. It seems that the sentence was within the guidelines of the time. Had more cases been brought before the court, the sentence might well have been considerably more; the full gravity of the alleged offending would have been understood and dealt with in a sentence.

The victims are concerned about the decision of the Parole Board to release Worboys. Their particular concerns are, first, about how they found out and, secondly, about the conditions on his release. Only one victim was consulted. The Parole Board is an independent body and operates according to its own rules. The Parole Board chairman blames the Justice Secretary because the victim contact service is tasked to do that. It may be revealed in the course of court proceedings whether the Parole Board Rules were carried out. Is there a precedent for a Minister to apply for judicial review of the board’s decision? As the board is financed by the Government, and probably by the Ministry of Justice, I wonder what the precedents are. I trust that the Government will get better legal advice than they did when they appealed to the Supreme Court on Article 50.

Mr Brandon Lewis MP, now chairman of the Conservative Party, has been criticised by Sir David Latham, a former chairman of the Parole Board, as being irresponsible in his remarks. I tend to agree. If the Minister is advised to proceed on judicial review against the Parole Board, the Parole Board itself will then have to consider its position. I advise the Minister to proceed with caution.

I have nothing against Mr Nick Hardwick, whose board has a most difficult talk. It needs only one of these prisoners to go wrong to bring the whole edifice into question. I understand that only 1% do so. I hope that, in the discussions, the representations made on more than one occasion by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, about prisoners with indeterminate sentences are not forgotten.

Mr Hardwick has previously chaired the Police Complaints Commission and been Chief Inspector of Prisons. It has been noted that some gentlemen—and ladies—move seamlessly from one quango to another. Looking at it broadly and philosophically, and not being personal, might it be time for the Cabinet Office to consider whether a much wider pool of talent should be looked at, rather than playing for safety in public appointments and moving pieces around the chessboard? Mr Hardwick now wants more transparency; I wonder whether this was considered at the time of his appointment. I have looked at the Parole Board Rules and they are easily amendable by regulation.

The second issue is the disclosure of evidence which might help the defence and undermine the prosecution. When I recently questioned in the House whether we had gone backwards since 1997 in the practice of disclosure, the Minister blithely assured the House that we had not. I would be fascinated to read his brief on this point. The reality is that, with the growth of social media and the use of mobile phones, the volume of evidence to be considered has grown immensely and made the task of disclosure much more difficult. Might not the downloading of material from mobile phones during the period of alleged offending always be flagged up and specifically considered? Nevertheless, the need to disclose in the interests of justice is still paramount. Last Friday’s press reported that, after the collapse of Mr Allan’s trial and similar cases, the police in London have been issued with a new communications assurance policy to ensure full compliance. I find the Minister’s assurance to the House now even less persuasive.

The recorder, Mr Bruce Houlder QC, previously head of the court martial and a very experienced prosecutor in his time, believes that something is seriously wrong with the process of disclosure. It is not a new problem. In July 2017, the joint report of Her Majesty’s Crown Prosecution Service Inspectorate and Her Majesty’s Inspectorate of Constabulary warned the CPS about the widespread failure to hand over important evidence, and highlighted six cases of failure and called for action. Given the Attorney-General’s supervisory responsibility, I have two specific questions. First, when did the Attorney-General last discuss with the prosecuting authorities the issue of non-disclosure? Secondly, was the joint report to which I have referred discussed, and what action was taken?

There have been many cases reported recently, I fear, but going back a little to 2015 and the case of R v Salt, the then Lord Chief Justice, the noble and learned Lord, Lord Thomas of Cwmgiedd, offered guidance in a case where there were difficult counterbalancing pressures, referring to,

“where continuation would offend the court’s sense of justice and propriety or would undermine public confidence in the criminal justice system and bring it into disrepute”.

We are told that the Metropolitan Police is reviewing 30 other cases with the CPS. The role of the police in disclosure is crucial. That is the beginning. We look forward to the publication of this review. The problem seems to be much wider than the detective constable in Allan’s case. We need something more independent, from top to bottom, to ensure, in the words of the noble and learned Lord, Lord Thomas of Cwmgiedd, that there is no further undermining of public confidence in the criminal justice system.

My Lords, I am delighted to follow the noble and learned Lord, Lord Morris, and appreciate his wisdom in bringing this matter before the House—although I am slightly embarrassed to be sandwiched between two such experienced practitioners as the noble and learned Lord and the former Lord Chief Justice, the noble and learned Lord, Lord Thomas. I will refer briefly to each of the three propositions that the noble and learned Lord, Lord Morris, set out in the Question he put before the House.

Does the system do justice to alleged victims? There are many ways in which it does not, but I ask, in particular: is there is a danger that not all the cases which could meet the evidence test are taken to trial because of the pressure on police or CPS resources, or perhaps because there is a wish for the trial and the prosecution case to be manageable in court and capable of being absorbed during the process of a jury trial? If that happens, for example, in a case of rape or serious sexual assault, does that lead, possibly, to a lesser sentence than might otherwise have been passed and create the situation that we have seen in the Worboys case? That is the first question that I want the Minister to reflect on.

The second question is: does the failure to meet disclosure requirements harm defendants and, in some cases, victims? Certainly it harms defendants—recent cases have given vivid illustration of that. Defendants have often spent a long period on police bail, during which their reputation and their standing in the community have been severely damaged if not totally destroyed, for a case which does not in the end come to trial or which collapses in court because disclosure requirements have not been met. Of course, it can cause harm to victims as well, partly because it discourages them from coming forward when they see collapsed cases, and perhaps in some cases because matters which might have convinced the jury of guilt do not go forward because failure to disclose has wrecked the trial by that point.

The inspectorate report to which the noble and learned Lord, Lord Morris, referred was absolutely scathing. It said:

“The inspection found that police scheduling (the process of recording details of both sensitive and non-sensitive material) is routinely poor, while revelation by the police to the prosecutor of material that may undermine the prosecution case or assist the defence case is rare”.

The auditing process was criticised with the comment that it was,

“likely to reflect badly on the criminal justice system in the eyes of victims and witnesses”.

I recently had the experience of doing five weeks on a jury at the Old Bailey. One thing I took away from that was a realisation—that no amount of evidence given to the Justice Committee had fully persuaded me of—of the sheer scale of the disclosure requirements when faced with social media, CCTV, number plate recognition and all the other technical aids which have been so important and, indeed, so valuable in demonstrating guilt in many cases. The quantities of material involved, and the police time taken up before and during the court proceedings, are enormous requirements. They magnify massively the disclosure requirements and the means necessary to achieve what we all seek: namely, the proper and timely disclosure of exculpatory material to the defence. This scale of material clearly calls for a fundamental revision of how disclosure is managed. I hope, again, that the Minister has been reflecting on that in the light of recent cases.

That brings me to the third leg of the question: the relationship between the police and the Crown Prosecution Service. The CPS might well be expected to play a bigger part in trying to make sure that the police do what they need to do—ensure that potentially exculpatory material is found—and that in general this mass of material is properly used.

The relationship between the police and the Crown Prosecution Service is closer than it used to be, with more pre-charge advice. There was quite a movement in that direction a few years ago, which included trying to co-locate the CPS with the police, although I detect a slight pulling back from that because of the fear that the independence of each side could be jeopardised in some way. In this respect I would like the Minister to reflect, with his own considerable knowledge, on whether there are advantages in the system in Scotland, and in some other European countries, or whether those systems pay too high a price in terms of the independence of the prosecutor from the police and vice versa. In Scotland the procurator fiscal and Crown counsel are in a position to direct police inquiries, which is not the case in England. Is the price paid for that the diminution of the respective independence of the two bodies, or is it something we ought to look at? Would it be helpful in trying to ensure that the kind of machinery we now need to handle these disclosure issues is put in place in police forces and integrated with the Crown Prosecution Service?

All this has massive resource implications and we cannot simply run away from them. The fact that we now have a wide range of material that can demonstrate either guilt or innocence—and is very important in doing so—is something we neither can nor want to change. However, it places much heavier requirements on the system, and I would be grateful for the Minister’s reflections on how that can be dealt with.

This is a timely debate, and I shall deal with only one of the questions posed, namely the one about disclosure. I do so because this problem ought to have been solved many years ago. It is the continuing failure to solve it that I shall concentrate on.

Essentially, the one point I wish to make is that the law in relation to disclosure is clear, simple and fair: fair to the defendant and to the complainant or victim. What has gone wrong, however, is the successive failure, over many years, in implementing the law and having proper procedures on the part of the CPS and, more particularly, the police, to ensure that the law is complied with.

I will elaborate a little on this. The law was set out in the 1996 Act and is clear, with its codes of practice and the Criminal Procedure Rules that have been made alongside it. There were, however, issues, and in 2011 the noble and learned Lord, Lord Judge, the then Lord Chief Justice, appointed Lord Justice Gross to look into the entire system. He looked at what happened in the United States and in continental countries to see if we could learn anything. He came back with a very clear recommendation that no legislative change was needed but that a great improvement was needed in how it was handled in this country. In particular, he recommended that there should be a proper recognition of the consequences of the electronic and digital age. In 1996, it is fair to say, the proliferation of documents could not have been anticipated. The focus of Lord Justice Gross’s excellent report was the problem that had arisen in serious fraud and similar cases. He was not concerned with the problem that has come to the fore recently.

As a result of Lord Justice Gross’s report, in December 2013 the then Attorney-General, Mr Dominic Grieve, issued a further guidance on disclosure. At the same time I, as the then Lord Chief Justice, issued, with him, an agreed protocol for dealing with unused material. We both emphasised that the proper disclosure of unused material, made through a rigorous and carefully considered application of the law, remains a crucial part of a fair trial and essential to avoiding miscarriages of justice.

We both realised that there was no point in these fine words and fine documents without putting in place a system of training and explaining what should happen. That was undertaken. However, as the noble and learned Lord, Lord Morris of Aberavon, has mentioned, it became apparent in 2015 that what had been hoped for was not being done. Part of the explanation may be a huge rise and change in the use of social media in sexual cases. In the old days you had very little by way of disclosure; now, you have massive amounts. From my experience of reading through it, what is exchanged on social media came as a great surprise to many of my age. It is, however, critical, because it shows how the relationship is and, in particular, what may have happened.

In the case to which the noble and learned Lord referred, it was clear—as the trial judge found—that there had been gross incompetence on the part of the police officer. As we caused inquiries to be made of the chief crown prosecutor and the chief constable, it was clear that the fault was systemic. At the end of the judgment we said, in the court, after referring to another 2015 case, that we hoped that that case, and this one, would receive the closest study by the chief crown prosecutors and the chief constables, as there should be no recurrence of failures of this kind by either the CPS or any police force. That was more than two and a half years ago.

We considered asking the Criminal Procedure Rule Committee to see if some kind of supervision could be imposed by the courts, in imposing sanctions for a failure to comply with the law. It was thought, however, and resolved by the Criminal Procedure Rule Committee that this would be impractical and have collateral consequences.

Two noble Lords who spoke earlier referred to the report of the Crown Prosecution Service Inspectorate and HM Inspectorate of Constabulary. It is an excellent report, conducted by two people of great experience. Their conclusion is so important that it is worth reading in full—it is a short paragraph:

“Non-compliance with the disclosure process is not new and has been common knowledge amongst those engaged within the criminal justice system for many years and it is difficult to justify why progress has not previously been made in volume crime cases. Until the police and CPS take their responsibilities in dealing with disclosure in volume cases more seriously, no improvement will result in the likelihood of a fair trial can be jeopardised”.

The report set out a number of recommendations. It was six months to the day that the report was published, and various things should have been done within six months.

I therefore very much hope that the Minister will obtain from each chief constable and each chief crown prosecutor what has been done. We can no longer continue this failure of accountability. There is a very broad issue to which the noble Lord, Lord Beith, referred about the accountability of the relationship. Time does not permit that but what we must surely do is to have concrete action on the accountability of chief constables, who really are not accountable for this matter, and much closer scrutiny of what is happening in the CPS. I very much hope that the Minister will undertake this task and put before the House the responses of the chief constables as to what they have done. It is a disgrace—I do not use that word lightly—that this problem has been left unresolved for so long.

My Lords, I congratulate the noble and learned Lord, Lord Morris, on securing this important debate. In December 2016, your Lordships’ House voted to strengthen the current victims’ code in a number of ways, including giving a duty to all the agencies involved in any case to follow the code. The duty is presently much weaker than that. At considerations of Commons amendments in January last year the then Minister, the noble Baroness, Lady Williams of Trafford, said from the Dispatch Box that the Government would publish their strategy to strengthen the victims’ code within the year. We know that it has been delayed and we will continue to hold the current Minister and others to account for a consultation by Easter, and for a strategy to be published this calendar year. The fact that it is one year overdue has already affected the lives of a number of victims adversely; we know that there are flaws in the system.

In the short time available in this debate, I will focus on the experience of the most vulnerable victims. This week the Victims’ Commissioner, the noble Baroness, Lady Newlove, who I see is in her place, published her excellent review into the provision of registered intermediaries for children and vulnerable victims and witnesses. The review makes chilling reading. These RIs are trained to work with children and those with specific conditions who need extra support to be able to give evidence in court. In example after example, police officers and CPS advisers—as well as the RIs themselves—talk about how the CPS and the court process, and especially funding problems, are denying these victims and witnesses their rights under our judicial system.

For example, the review says:

“One police officer described how she carried out an interview with a male victim of assault with severe learning disability. She said, ‘every time he spoke he just giggled and could not communicate with her. He responded really well to the male RI, who was able to simplify the questions sufficiently for him to understand and answer them. It made a big difference. The RI struggled a bit but eventually got a full account of what happened. It meant that the man could have access to justice!’”.

In 2016, an HMIC inspection into child protection at the Metropolitan Police Service reported that senior officers,

“recognised the limited availability of RIs and the negative effect this has on the quality of the service provided to children and young people and have raised with relevant partner organisations such as the Ministry of Justice”.

It was also reported that the delays and slow processes in being able to hire an RI were hindering children and vulnerable people in getting access to the help they needed.

To quote again from the report:

“One CPS advocate described her involvement in a case in which the victim was a 15-year-old girl who was assaulted on her way home. The girl had severe brain damage as a child. A statement was taken and the police officer felt that the victim was able to do the ABE”—

the evidence—

“on her own ... The police and the CPS could not agree and the funding for an RI was refused in this case”.

However, there are some good examples, too. The Norwich constabulary uses the achieving best evidence language screening toolkit, known as ABELS, to screen for the communication needs of victims. Other constabularies receive information from schools or social workers for children aged under 10. The problem is that practice is inconsistent—particularly so for vulnerable adult victims and witnesses. What is the Ministry of Justice doing to ensure that best practice is disseminated to all constabularies—and, if ABELS is the gold standard, will it ensure that this gold practice is rolled out?

Police officers report that the form filling and box ticking to request an RI is overly bureaucratic and time-consuming. Once completed, it takes an average of four weeks for an RI to be allocated. This is a long time in the memory of a small child—or of some adults with learning difficulties—and police officers talked in the report about the conundrum that they face. One said: “I thought, ‘I’m just not waiting—I can’t’. That case involved a three year-old child. Because the child was three, I knew the memory retention wouldn’t be great”. The parents of the child had warned that her memory would not be great and said, “You need to get this done sooner rather than later because of that”. The National Crime Agency said, “You can’t have one for another four to five weeks”. The officer said, “That’s too late” and explained: “In a case like that I have to make a decision—do I sit and wait that long, and risk losing the information, or do I try and obtain it another way?”. What does the Minister propose should be done to simplify the allocation of RIs so that evidence can be taken from these vulnerable witnesses speedily?

Time does not permit me to go through the recommendations of this excellent review, which seems to echo many of the other problems cited with the early stages of the criminal justice system as experienced by victims. But the review is clear on the need for a much better overview and management of processes. I suspect that if that happened there would also be fewer delays and cost overruns and, even more important, less need to re-run trials because evidence has not been produced early enough or effectively enough. For children, young people and vulnerable victims this is particularly true.

We know from previous reports that a large percentage of victims are deeply unhappy with the way that the criminal justice systems treats them. For this group of vulnerable victims, the state has an extra duty to ensure that support is offered as quickly and effectively as possible, both to ensure a smoother journey for the case through the criminal justice system and to ensure that their voice is heard, with appropriate support and justice given.

My Lords, this brief and highly topical debate, for which we are greatly indebted to the noble and learned Lord, Lord Morris of Aberavon, who over many years has been a tireless contributor in this field, is focused rather on the earlier stages of the criminal justice system than on imprisonment and release. But those matters have been dealt with by those altogether more expert than me, not least the noble and learned Lord, Lord Thomas of Cwmgiedd, and I will turn instead to related questions that I have raised with the House on earlier occasions, notably on prison overcrowding. In much of what he said the noble and learned Lord, Lord Morris, shot and wounded, if not killed, many of my foxes, but I, too, will raise the issue of IPP prisoners, of whom alas Mr Worboys is one.

We had a two and a half hour debate on prison overcrowding in September last. I know that the recent Lord Chancellor read it, because some of us went to discuss prison reform with him. Now we have, sworn in this very morning, yet another Lord Chancellor—the fifth in as many years, such is the value now placed on that once great office. I express the hope that he and his new Prisons Minister, Rory Stewart, will now in turn read that debate and pay heed to it.

As it happens, the first leader in today’s Times squarely addresses the prison crisis. It talks of a “crumbling prison system” and the “dire” situation with fewer staff, an ever-increasing number of assaults on prison officers and fellow prisoners, and prisoners locked up for very long periods. It talks of “squalid” conditions, et cetera. Today’s Motion refers to justice for alleged victims. Justice they must certainly have, but I cannot accept that victims require us to pursue the course that we have taken over recent years of ever-longer sentences, to a point where in fact we now have more indeterminate sentences here than in all the other 46 countries of the Council of Europe combined. Overall, of course, we have a far higher proportion of our population in prison than in any comparable civilised country—I put aside, as an unhappy comparison, the United States. As today’s Times advocates, sentencing guidelines should be revisited.

Let me turn briefly to IPPs and alas, most topically, the Worboys case and the lessons to be learned from it. First, as the noble and learned Lord, Lord Morris, said, the prosecuting authorities, the police and the CPS should always strive to charge the accused with a sufficient number of offences to represent the full extent of his criminality and to indicate fully the degree of his dangerousness. It seems highly questionable whether that occurred in this particular case. Although a 16-year determinate sentence is very considerable—a sentence represented here by the eight-year tariff Warboys got—it might be the case that he actually should have had a life sentence. That would have been appropriate and would have kept him in prison altogether longer.

The second lesson, which Nick Hardwick—who truly is a most excellent chairman of the Parole Board—has himself been advocating, is that there should now be a radical review of the rule that the Parole Board cannot give its reasons or disclose the details of individual cases. It is perhaps worth putting on record here the most relevant provisions of the 2016 Parole Board rules. Paragraph 22(3) says that,

“a hearing must be held in private”.

Paragraph 24(1) says:

“The decision of the oral panel must be recorded in writing with reasons, and that record must be provided to the parties not more than 14 days after the end of the hearing”.

However, paragraph 25, under the heading, “Disclosure of Information”, says:

“(1) Information about proceedings under these Rules and the names of persons concerned in the proceedings must not be made public”.

(2) A contravention of paragraph (1) is actionable as breach of statutory duty by any person who suffers loss or damage as a result”.

As it happens, there were three letters on this in Tuesday’s Times this week. The noble and learned Lord, Lord Falconer of Thoroton, suggested that those rules were “almost certainly unlawful” and that the courts could and should strike them down. Sir David Latham, referred to already as the Parole Board chairman between 2009 and 2012, in what I suggest was a rather more balanced letter, said that it was time to look again at these rules. In the third letter, a member of the Bar persuasively suggested that there were good reasons for a privacy rule: hearsay evidence is admissible and psychiatrists, probation officers and others might well give information in the expectation of confidentiality. He said that we should certainly beware of hasty rule changes—and I agree.

The third Warboys lesson is that the Ministry of Justice must improve its system for alerting victims—including those who complained but were not themselves the complainants in the charges actually brought—of the impending release of a prisoner.

I end by urging that the Warboys case and the particular problems that it has raised really ought not to be used as an excuse by the Ministry of Justice for losing interest in the genuine grievances of many of the remaining IPP prisoners: those whose tariff sentences were often no more than months or a year or two but who remain incarcerated eight to 10 years after they have served their due punishment. Their plight has rightly been described by ex-Lord Chancellors as a stain on our criminal justice system, and so it remains. They are the subject of preventive detention, which is a form of internment—and that is not our system.

It is a pleasure to follow the noble and learned Lord, Lord Brown of Eaton-under-Heywood, because I agree with every word he said, particularly on indeterminate sentences. I turn, however, to the issue of rape. A startling statistic from the organisation Rape Crisis is that three-quarters of all adults who contacted their centres in 2016-17—and there were upwards of 65,000 of them— complained of sexual violence that had occurred at least 12 months earlier. Out of every 100 who experience sexual violence, only 15% choose to report it.

What follows? The Ministry of Justice’s statistics, An Overview of Sexual Offending in England and Wales, published in 2013, estimated that there were between 60,000 and 95,000 rapes annually of men and women in this country. As a result of the low reporting rate, however, only 15,000 were recorded by the police as crimes. Of these, only 3,850 were marked as detected. There were only 1,070 convictions. Do people who commit rape steal away into the darkness, never to be identified? No, not at all: 90% of those who complain of rape know who the perpetrator is. For the legal system to deliver justice to victims, the first step is for the victim to make a timely complaint.

If a person is attacked by a stranger—the one in 10 case—there is usually no difficulty in the victim complaining. The police swing into action: they identify suspects through descriptions of the attacker, forensic examination of the attacked person, and careful examination of the scene. DNA is of critical importance and frequently CCTV plays a part. A delay in a complaint of this type will obviously greatly hinder an investigation, and where a stranger is involved, the chances of a conviction are seriously diminished.

However, that is not the typical case. Far more common are acquaintance rapes, where the complainant is able to identify the suspect as someone known to them: a neighbour, a friend, or someone known through dating. Then there are domestic or relationship rapes committed by people who are, or have been, intimate partners or family members. In these cases, there are very often serious disincentives to lodging a complaint, such as the intimate nature of the offence, feelings of shame or fear that the complainant will not be believed or might be blamed for the offence. There may be a lack of confidence in the criminal justice system, or fears for personal safety or the safety of children. It is, of course, entirely understandable in human terms that one or more of these reasons may cause a complaint to be withheld, but it obviously makes the investigator’s task much more difficult.

One Ministry of Justice statistic is telling. Its researches revealed that 57% of female complainants between the ages of 16 and 59 told someone but did not tell the police; 28% told no one and only 15% told the police. No one told the police but nobody else. Your Lordships will appreciate, therefore, that the evidence of a recent complaint to a relative or friend, admissible under Section 120 of the Criminal Justice Act 2003, may be of real significance.

Another issue raised by the noble and learned Lord, Lord Morris, was disclosure, which is a tricky problem. In the recent case of Allan, a huge number of emails and messages had been collected by the police from the complainant. Reports do not say precisely why or how. Clearly, if there was something in them, as there was, which would assist the defendant, it had to be disclosed. I wholly commend the barrister, Jerry Hayes, a member of my chambers, for his action as the prosecutor in informing the defence and ultimately discontinuing the prosecution. It was in the highest traditions of the Bar. I also commend the CPS and the investigators who must have drawn his attention to this material.

It must be realised, however, that it cannot be right routinely to require a complainant to disclose each and every email and message that might be on their mobile phones. A requirement to turn all intimate files over to the police must be a disincentive to making a complaint in the first place. Disclosure must be proportionate. My noble friend Lord Beith asked how it was to be managed. The Allan case illustrates the need for a further protocol that, as the noble and learned Lord, Lord Thomas of Cwmgiedd, said, would be fair both to the complainant and to the defendant.

What I have in mind is that where a defendant clearly raises the issue of consent in interview at an early stage, he should be entitled to make an application first to the police and, if refused, to a magistrate, for the preservation of any electronic messaging within a specific period in the possession or control of the complainant whom he alleges consented to what happened. He should then be required to provide to the investigator such key words as he thinks appropriate for a search of the material. Clearly, his name would be foremost, but so would places, events and dates. The investigator would search the material according to those key words and anything relevant would be disclosed in the usual way. Of course, the defendant would be taking the risk of there being adverse messages, which would be admissible against him, but if he believed there was material that would assist him, it would be revealed.

The complainant need not fear disclosure of her whole sexual history. A report published last month by the Ministry of Justice and the Attorney-General found that applications under Section 41 of the Youth Justice and Criminal Evidence Act 1999 were made in only 13% of the 306 rape cases examined, and 92% of those applications were disallowed, so the bar against disclosure of the previous sexual history of the complainant is very high. I hope the Director of Public Prosecutions, Alison Saunders, who is meeting today with interested bodies, will consider a protocol along the lines I am suggesting.

I add my thanks to the noble and learned Lord, Lord Morris of Aberavon, for raising an extremely important and relevant issue.

My Lords, I congratulate my noble and learned friend on securing this important and timely debate. Much is heard, and rightly so, of the needs of victims in our criminal justice system, exemplified dramatically in the past few weeks by the Worboys case. The distress occasioned by the apparent failure to prosecute more cases involving this offender and, arguably, the even more worrying failure to notify victims of the offender’s release from prison is palpable.

As the Motion makes clear, there are also significant issues affecting defendants, especially in relation to disclosure of evidence material to a prosecution, which need to be addressed, and there are also concerns about the process of decision-making on whether to prosecute. These issues, although they have come dramatically to the fore in the past few weeks, are not new.

Victim Support published a report last April which recounted failures to comply with the victims’ code. Of 19 requirements laid out in the code, three were not met in more than 50% of cases, including offering a chance to make a victim personal statement and having the consequences of such a process explained, while in no less than 62% of cases victims were not asked about their needs and assessed for an enhanced service. In only four categories did the failure in meeting entitlements fall below 20%, and many were in the range of 30% to 50%. Unsurprisingly victims were much more satisfied when they received all the code’s entitlements than otherwise. There is a clear systemic failure to meet the needs of victims in a range of material issues. The report concluded that more monitoring and enforcement of the victims’ code is required. Can the Minister confirm that these matters will be addressed in the new strategy for victims expected to be published soon?

Disclosure of unused material is another area of concern, as we have heard, which is reflected in the joint report by the Crown Prosecution Service Inspectorate and the Inspectorate of Constabulary last June. As the report pointed out, every item of unused evidence should be retained and reviewed to see whether it could undermine the prosecution or assist the defence and, if so, it should be disclosed. In practice, however, the process was described as,

“routinely poor, while revelation … to the prosecutor of material that may undermine the prosecution case or assist the defence case is rare”.

Sensitive material is not managed effectively, and prosecutors are not managing ongoing disclosure, with an audit process,

“far below any acceptable standard”.

The report concludes that the failure to provide timely disclosure leads to,

“chaotic scenes … outside the courtroom … unnecessary adjournments and … discontinued cases”,


“reflect badly on the criminal justice system in the eyes of victims and witnesses”.

The report made nine recommendations, one for immediate action, six for implementation within six months, and one for implementation within 12 months. Will the Minister update us on progress in the past nine months?

While we are considering the question of resources, it is interesting to note that the Sunday Telegraph—not my usual paper of choice—reported on Christmas Eve that prosecutors were being urged two years ago to boost rape cases but that the CPS,

“found lawyers struggling with deadlines, pressing charges where there was scant chance of conviction”,

and that the service was underresourced, making it difficult to achieve quality casework. The telling headline to the Telegraph article was:

“We warned sex trials would suffer under workload, says CPS”.

The report was published last February. Will the Minister tell us what extra resources have been allocated to meet that difficult situation?

My noble friend Lady Chakrabarti last month referred to two recent cases in which inadequate disclosure of material led to acquittals, after much stress on the innocent defendants, and attributed this to the underfunding of an overstretched CPS and police service, although—one might have thought predictably—one Nick Timothy, the Conservative Party’s answer to Steve Bannon, denied that resourcing was an issue. In fairness, he at least welcomed the acquittal of the unfortunate Liam Allan after two years of police bail on a charge which ultimately fell apart. The Prime Minister’s statement that it is,

“important that we look at the issue again to ensure that we are truly providing justice”,—[Official Report, Commons, 20/12/17; col. 1062.]

was very welcome, but it needs to be followed through by an independent review of process and a commitment to ensure that adequate funding is available to train, employ and supervise the relevant staff in the police service and the prosecution service.

My noble and learned friend Lord Morris asked a Private Notice Question on the disclosure issue in December. The noble Lord, Lord Faulks, took the opportunity to ask whether there were,

“adequate resources, by way of legal aid or otherwise”,—[Official Report, 18/12/17; col. 1836.]

to enable defence lawyers to analyse all the pieces of relevant information, to which the Minister replied that that point would be addressed. It was surprising that no assurance on this critical point was proffered at the time. A month on, what is the position? This is surely an issue which could be addressed immediately.

One area on which the Government have appeared to take action is pre-trial cross-examination of victims, with the Attorney-General saying in November that he welcomed the further rollout of this practice. Will the Minister say what progress has been made in this area and what targets have been established for its adoption? It is to be hoped that change of this and other kinds will not be delayed because of resource implications, not least because it could actually save money if properly employed, as well as improving the substantive process and helping victims cope with the stress of reliving their experience.

This has been an interesting and well-informed debate. I hope that the Minister will be able to give some assurance that progress will be made sooner rather than later in tackling the variety of problems raised not only by your Lordships this afternoon but by other organisations to which I and other noble Lords have referred.

My Lords, I join other noble Lords in congratulating the noble and learned Lord, Lord Morris, on securing this debate.

Justice is at the heart of any democratic society, and providing protection to the public from wrongdoers, while also ensuring that everyone has a right to a fair trial, is at the centre of the rule of law. Fairness means fairness to all—equality of arms—and so, just as the prosecution should have ample opportunity to present its case before an impartial court, so too should the accused have access to relevant evidence and material that might assist them challenge or rebut the prosecution case. The court should provide an environment that encourages complainants and witnesses, sometimes vulnerable or in distressing circumstances, to give their best evidence to aid the court in determining what happened and to reach its verdict fairly. This is clearly an important debate and one of heightened public interest at present in the light of some of the cases that have come to the fore in the media.

Under the Code of Practice for Victims of Crime, complainants are entitled to a range of services throughout the criminal justice process before, during and after the prosecution of the accused. I shall not enumerate them. The noble Lord, Lord Beecham, alluded to them and to the need for us to ensure that the code is properly applied, and I note his observations in that regard. Complainants are also entitled to be informed on whether the suspect is to be prosecuted and, if dissatisfied with a decision not to prosecute, to seek a review of the police or prosecutor’s decision not to prosecute.

Coming to disclosure, let us be absolutely clear that we are at one on this. Compliance with disclosure requirements is vital if there is to be a fair trial, which is in the interests of the complainant, the accused and indeed the whole community. All evidence upon which the prosecution intends to rely must be disclosed to the defendant. Furthermore, the prosecution must disclose any relevant undisclosed material which it is not using as evidence but undermines their case or strengthens the defence case.

Prior to recent events, the Attorney-General had launched a wide review of disclosure procedures in the criminal justice system. His review will consider how processes and policies are implemented by prosecution and defence practitioners, police officers and investigators. This was commissioned following the comprehensive joint inspection of disclosure by Her Majesty’s inspectorates referred to earlier, which concluded earlier in 2017. The scope of the review is wide, covering cases in the magistrates’ courts as well as more complex Crown Court cases and specialist types of cases, including economic crime and sexual offences. The review will examine existing codes of practice, protocols, guidelines and legislation as well as case management initiatives and capabilities across the criminal justice system, including how digital technology is used.

The noble and learned Lord, Lord Morris, alluded to the massive increase in material that has now become available—for example, in the context of sexual cases where social media may play such a significant part. Of course, social media does not just reflect messaging between a complainant and a defendant; there may be social media involved in communication with third parties. There is a massive amount of material there that is potentially relevant to any complaint.

Over and above that, I make one short observation: very often, the defendant will know or not know whether there should exist social media of that kind. We had a recent example of a case where someone complained that photographs on his phone were only produced at a very late hour. What I find somewhat surprising about that case is that the defendant must have known all along whether he had taken such photographs on his phone and whether or not they were there. If there had been timely disclosure of that, it might well have been possible to recover them much earlier than was done.

We know that we have to address the new digital age in this context. Technological developments and the way investigations are conducted are leading to new and emerging issues. The Attorney-General’s review will look at this as well as building on the recent reports on disclosure which have been referred to and identify a number of issues that have arisen with regard to knowledge, skills and training.

The noble Baroness, Lady Brinton, referred to victims’ support. We are increasing expenditure on that. The noble Lord, Lord Beecham, referred to Section 28 provisions on pre-recorded cross-examination special measures in that context. We are addressing this: we want to reduce the stress of court and make sure that vulnerable and intimidated witnesses can give their best evidence. We are rolling out a pre-recorded cross-examination system for vulnerable witnesses in Crown Court centres in England and Wales. This will also be tested in the context of not only vulnerable witnesses but witnesses who are complainants who may be the subject of intimidation, for example.

Helping witnesses and victims give their best evidence is of course a core part of the Crown Prosecution Service’s role, and the CPS aims to do everything it can to help them with the difficult and sometimes traumatic experience of appearing in court. Prosecutors can apply for special measures to allow vulnerable, intimidated or child victims and witnesses to give evidence in court unseen by the defendant. This can be achieved also by using videolinks. Vulnerable people—complainants and witnesses—can receive assistance in giving their evidence through an intermediary in appropriate circumstances.

The noble Baroness, Lady Brinton, touched upon the question of the victims strategy and the extent to which there was room for RIs—registered intermediaries—to be available. We are pursuing that. In 2015-16, we recruited 100 new RIs, doubling the size of the scheme. We are currently running a regional recruitment drive, which we hope will increase the numbers further by about 15% nationally. We appreciate the need to ensure that this is rolled out nationally and is not simply to be found in a few regional hot spots, if I can put it that way.

Mention was made of recent cases of failure of disclosure, in particular the Liam Allan case. The Crown Prosecution Service and Metropolitan Police are jointly conducting an urgent review into the Liam Allan case, which collapsed at trial. Clearly, it is crucial that the circumstances of the case are examined, any wider issues identified and appropriate lessons learned. The findings of that review will be published before the end of this month. It would not be appropriate for me to pre-empt that review and speculate further at this stage. The CPS and the Metropolitan Police are also looking at all live rape and serious sexual offence cases to check that disclosure is being handled appropriately.

The Crown Prosecution Service is committed to working effectively with the police in the context of issues such as disclosure, and indeed doing so from an early stage of any investigation in order to build the strongest possible prosecution case for trial where the case meets the test for charge and to bring to an early conclusion those cases which do not. It is necessary in this context to be fair to the complainant and to the defendant in these circumstances.

The Director of Public Prosecutions has a good relationship with the chair of the National Police Chiefs’ Council, the Metropolitan Police Commissioner and the lead officers for criminal justice on this and other topics. There is regular communication with chief constables in that context.

I note the point made by the noble Lord, Lord Beith, with regard to other systems of prosecution, in particular the position under the Crown Office and Procurator Fiscal Service in Scotland, where of course a distinct jurisdiction is exercised because there the Crown and the procurator fiscal are in a position to direct the police on the conduct of any investigation. I would not like to suggest that one system is better than another at this stage. Clearly, the DPP’s guidance on charging sets out arrangements in England and Wales for the joint working of police officers and prosecutors during the investigation and prosecution of criminal cases. Prosecutors may provide early investigative advice in serious, sensitive or complex cases, and in any case where a police supervisor considers it would be of assistance in helping to determine the evidence, the supervisor will be able to seek advice in that context. I accept that the system in other jurisdictions is different.

The CPS and the police have agreed a joint approach across England and Wales to monitoring and improving the quality of files submitted by the police to the CPS. There may be instances where a police file is submitted to the CPS and then returned in order that further investigation or further inquiry can be made in a particular case.

I touched upon the matter of the progress of the victims strategy that the noble Baroness, Lady Brinton, asked about. The Government have made a commitment to publish a victims strategy in 2018. The new Secretary of State for Justice, sworn in as Lord Chancellor this morning, has not yet had the chance to look at the work done so far in detail, but he clearly regards this as an important part of his agenda, underlined by recent events.

Reference was made to the case of Worboys. The Government believe that there is a strong argument for reviewing the case for transparency and the process for parole decisions and how victims are appropriately engaged in that process. As I mentioned on a previous occasion, there is a distinction between those who are the victims of complaints that have been the subject of successful prosecution and those who have been the victims of complaints that were not proceeded with. In the latter case, the matter of intimation is discretionary rather than obligatory. The Secretary of State made a Statement to the other place on this matter on 9 January. He has spoken to the chair of the Parole Board and the Victims’ Commissioner about what changes might be made in the present circumstances, and the Ministry of Justice will lead the review with the view that decisions can be taken on this by Easter.

Very briefly—as I am living on borrowed time at this point—I shall respond to some points. The noble and learned Lord, Lord Morris, asked me two questions. First, the Attorney-General last discussed non-disclosure with the DPP on Monday 15 January; it is a current issue. The Attorney-General’s review of disclosure was triggered in part as a result of the joint inspectorate report that has been referred to. Progress by the CPS against the recommendations in that report is the subject of regular discussion at the superintendents’ meetings.

I am not going to go into the details of the Worboys case and what was and was not prosecuted. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, suggested that perhaps not all appropriate cases had been prosecuted. It would not be appropriate to speculate on that; the CPS has an evidential test to apply, and I would not seek to second-guess the process in that context. However, I would say that Worboys was a case of an IPP sentence but I see no reason why that particular incident should impact directly upon our consideration of how we are going to proceed in the context of IPP sentences in future. That is a matter that has been the subject of ongoing debate and discussion and will no doubt continue to be.

I hope that I have reassured noble Lords that we are concerned about the issues raised here relating to victims, disclosure and the need to keep vulnerable victims and complainants fully informed of the outcome of a prosecution and, indeed, the outcome of any sentence, including issues of parole. I will not go into the details of particular cases that have been mentioned, but I will underline a point made by the noble Lord, Lord Thomas of Gresford: disclosure is central to our system of criminal justice, but it must be proportionate. When we come to deal with these issues, we must respect the rights and interests of the complainant and of the defendant. They are challenging issues; we are addressing them; and we shall address them further in the light of recent events.

I am obliged to noble Lords, and I thank the noble and learned Lord, Lord Morris, again for this debate.