Rape Trials

Lord Keen of Elie Excerpts

Wednesday 6th June 2018 Lords Chamber

[Lord Morris of Aberavon (Lab)]

My Lords, I beg leave to ask a Question of which I have given private notice.

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

My Lords, the Government are clear that ensuring disclosure requirements are met is vital for a fair trial and public confidence. The Attorney-General is leading a wide-ranging review of disclosure practices and aims to report by the summer. The findings of the review of rape and serious sexual offence cases, published by the Director of Public Prosecutions yesterday, will feed into a wider operational response to delivering necessary improvements in the system.

[Lord Morris of Aberavon]

My Lords, the disclosure of unused material that assists the defence or undermines the prosecution is vital to a fair trial. Does the noble and learned Lord still stand by his earlier reply that we have not gone backwards? Would he like to comment on yesterday’s evidence by the Director of Public Prosecutions, which differs wholly from her bold assertion in January that she did not think disclosure failings would have led to people being wrongly jailed? Where is the failure to grip the situation: the police or the CPS?

[Lord Keen of Elie]

My Lords, the review that was undertaken involved consideration of 3,637 cases in the period between 1 January and 13 February this year. In respect of those cases, 47 were identified where there were concerns about the management of disclosure. However, that does not mean that this was the reason for the discontinuance of the prosecution in each and every one of those cases. There is of course concern that disclosure should be carried out fully and properly pursuant to the legal requirements of the Criminal Procedure and Investigations Act 1996. That obligation lies not only on the police and Crown Prosecution Service but on the defence, which is required within a certain period—28 days—to give a defence statement. That, in itself, indicates where there may or may not be room for further investigation of material that could pertain to the prosecution case or assist the defence. It is necessary for all parties involved in this process to engage in order that it can be properly discharged.

As I indicated earlier, further work is being undertaken by the Attorney-General to deal with this question, which we hope to report upon by the summer. I do not accept that we are going backwards. Technology is going forward, and very quickly indeed. We now live in an environment in which there are vast quantities of social media apps—Instagram, Facebook and the like—that can be contained on one or two mobile devices and which make demands upon the police service, the Crown Prosecution Service and indeed the defence. They did not exist 10 years ago. We are seeking to meet those demands; it is important that we do so.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the number of recent cases collapsing following late disclosure—many of them well publicised—is frankly a disgrace. It is made even worse because it has often happened when defendants have been remanded in custody pending their trial. The Director of Public Prosecutions says that the prosecution is disclosing relevant evidence to the defence in the vast majority of cases, but it needs to be—so far as it can be achieved—invariable. I hear endless anecdotal reports from criminal lawyers that these failings are widespread and attributable largely to a lack of resources, often to download and go through smartphone records—as the noble and learned Lord’s last answer implicitly recognised. We accept that trawling through records harvested from confiscated smartphones is time-consuming and expensive, but fairness and justice require it. Can the noble and learned Lord guarantee that the Government will respond to recent failures by giving all necessary resources to be devoted to this work to ensure that we achieve full disclosure of relevant material to the defence?

[Lord Keen of Elie]

My Lords, we must always aspire to full disclosure in circumstances when material could otherwise undermine a prosecution or assist the defence to a criminal charge. No one would doubt that for a moment. As I understand it, there has been no complaint to date about a lack of resources as regards the police and the CPS. I go back to the point I made earlier, that these obligations with regard to disclosure extend beyond the police and the Crown Prosecution Service to the defence as well. I am not in the business of giving guarantees, but we will look clearly, unambiguously and carefully at the findings of the Attorney-General’s investigation in the summer and will respond appropriately to its conclusions.

[Lord Judge (CB)]

How can the obligations imposed on the defence by the 1996 Act excuse or explain failures by the prosecution to disclose relevant material?

[Lord Keen of Elie]

They do not necessarily explain such a situation. However, in circumstances where the defence actually obtempers its obligation to provide a defence statement, it is possible to identify further areas of inquiry for the disclosure of material. For example, if the defence statement discloses that that there was a pre-existing relationship between a complainer and the defendant, it will be possible to make further inquiries to ensure that material that might otherwise have gone unnoticed is disclosed to the defence. Therefore these matters are connected.

[Baroness McIntosh of Pickering (Con)]

Will my noble and learned friend clarify his comments on social media and the extent to which, in cases where the prosecution has information that is available on social media, it is disclosed to the defence counsel?

[Lord Keen of Elie]

In circumstances where it has been possible to download material that involves communications either between a complainer and the accused or between the complainer and third parties, that material will be analysed and all relevant material will be taken and disclosed to the defence. Of course, it is not always possible to access this material. We now live in an environment of encryption and of WhatsApp and Instagram, where sometimes this material is simply not accessible.

[Lord Campbell-Savours (Lab)]

What about those cases where men have been found guilty and are in prison, and there was inadequate disclosure during the course of their trial, whereas if there had been full disclosure they would have been found innocent? Are they simply to be left in prison and not have their cases reviewed?

[Lord Keen of Elie]

My Lords, I am not aware of any such cases. However, clearly, we have a series of filter mechanisms in our criminal justice system that includes the criminal cases review operation where there has already been a conviction and material comes to light.

[Lord Davies of Stamford (Lab)]

My Lords, the noble and learned Lord has referred several times to the obligations placed on the defence by the 1996 Act. Is he suggesting or is he aware of any evidence which indicates that some of these cases that have collapsed have done so as a result of a failure by the defence to meet its obligations under that Act?

[Lord Keen of Elie]

Recent inquiries indicated that in something like 25% of cases a defence statement was not produced or not produced timeously.

[Lord Paddick (LD)]

My Lords, the noble and learned Lord said that he had not heard that a lack of resources was to blame for these failures. He may not have heard my noble friend the former Director of Public Prosecutions say on “Newsnight” last night that he felt that it was as a result of a 25% reduction in funding for the CPS and the loss of hundreds of lawyers—and, I add to that, the loss of thousands of police officers and an ongoing 25% reduction in their resources could be to blame.

[Lord Keen of Elie]

I note the noble Lord’s careful use of “could”. That is why we will await the outcome of the present inquiries and investigations before we draw any conclusions.

[Lord Cormack (Con)]

My Lords, did my noble and learned friend see that rather disturbing programme about the Criminal Cases Review Commission? He referred to that commission. Is he entirely satisfied that it is working in a proper and seemly way?

[Lord Keen of Elie]

My Lords, I am not a regular viewer of the television and I am not aware of the programme to which my noble friend refers. However, at present there are no indications that the criminal cases review operation is not operating in accordance with its remit or that it is not capable of discharging its functions.

[Lord Beecham (Lab)]

My Lords, the chief constable of Surrey has described the situation as having had a “catastrophic effect”. It is two years since warnings were first given about this problem. Will the Government now ensure that further inquiries are made for the period before that time to see whether other cases need to be dealt with? Will he also ensure that a view will be taken not just in relation to sex offences, which have been the subject of the present findings, but across the field of criminal offences? Clearly, there is a risk that we will see the same kind of failings affecting other offences.

[Lord Keen of Elie]

My Lords, a joint justice systems inspectorate investigation on disclosure issues took place in 2016 and the report was published in July 2017. We were in the process of implementing a series of recommendations when a number of further cases arose in early 2018, and that is what has given rise to the Attorney-General’s determination that there should be a review. We will await the outcome of that review before taking further decisions with regard to disclosure. However, disclosure is not of course limited to cases of rape or other sexual assault. We appreciate that this issue has to be addressed across the board so far as the criminal justice system is concerned.