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

Lord Thomas of Gresford Excerpts

Thursday 22nd October 2020 Lords Chamber

[Lord Thomas of Gresford (LD) [V]]

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.