Legal System: Prosecutorial Policy

Lord Keen of Elie Excerpts

Thursday 18th January 2018 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

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.