Criminal Procedure and Investigations Act 1996 (Code of Practice) Order 2020

Baroness Scott of Bybrook Excerpts

Thursday 22nd October 2020 Lords Chamber

Moved by

[Baroness Scott of Bybrook]

That the Order laid before the House on 10 September be approved.

Relevant document: 27th Report from the Secondary Legislation Scrutiny Committee

[Baroness Scott of Bybrook (Con)]

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.

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[Baroness Scott of Bybrook (Con)]

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.

Motion agreed.