Legal System: Prosecutorial Policy

Lord Beith Excerpts

Thursday 18th January 2018 Lords Chamber

[Lord Beith (LD)]

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.