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

Lord Paddick Excerpts

Thursday 22nd October 2020 Lords Chamber

[Lord Paddick (LD)]

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.