Crown Prosecution Service: Disclosure Procedures

Lord Morris of Aberavon Excerpts

Monday 29th January 2018 Lords Chamber

Asked by

[Lord Morris of Aberavon]

To ask Her Majesty’s Government whether they intend to set up an independent inquiry into the role of the Crown Prosecution Service and its relationship with police authorities in respect of disclosure procedures in criminal cases.

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

My Lords, following a joint inspectorate report last year, the Attorney-General launched a review of disclosure procedures. This will report in the summer. Last week, the National Police Chiefs’ Council, the College of Policing and the CPS published a joint action plan for disclosure improvement. The House of Commons Justice Committee has now announced an inquiry into disclosure. We have no present intention to institute an additional inquiry.

[Lord Morris of Aberavon (Lab)]

My Lords, I welcome what is being done belatedly, but confidence in the criminal legal system in the Crown courts has been seeping away almost daily. Will the action proposed apply also to the magistrates’ court, where non-proceeding seems to be the norm? Since the DPP, who has made some very bold statements, is obviously struggling with the police, with their limited resources, to provide material for disclosure, will the Attorney-General join the Home Secretary in studying what was done in 1998? There was a failure to prosecute deaths in custody cases, so I appointed a senior ex-circuit judge to do an independent review, and he delivered a damning report in two or three months.

[Lord Keen of Elie]

My Lords, we recognise that compliance with disclosure requirements is vital if there is ever to be a fair trial. On a review of present policy, the Attorney-General’s review will take account of recent reports from judges and Her Majesty’s inspectors, as well as gathering additional evidence from bodies, including the judiciary, the Bar Council, the Law Society, police representatives, and prosecutors. In addition, last week the Attorney-General and the Home Secretary addressed a joint letter to both the CPS and the chief constable of the national policing lead on disclosure and the chief executive of the College of Policing, repeating their expectation that a full review is undertaken of all cases similar to those that have already been identified, to determine whether disclosure has been properly carried out.

Legal System: Prosecutorial Policy

Lord Morris of Aberavon Excerpts

Thursday 18th January 2018 Lords Chamber

Asked by

[Lord Morris of Aberavon]

To ask Her Majesty’s Government what assessment they have made of the extent to which the legal system does justice to alleged victims in the commencement of prosecutions, the disclosure of evidence to defendants, and the relationship between the Crown Prosecution Service and the police authorities.

[Lord Morris of Aberavon (Lab)]

My Lords, I hope this debate is timely, given the almost daily reports of difficulties in sex-case trials. I have spent over half of my adult life at the criminal Bar, and I am deeply aware of the necessity to respond to the needs of justice as problems arise.

When I became Attorney-General, the CPS was in a mess on a number of issues. I invited a distinguished retired judge, Lord Justice Glidewell, to chair an inquiry in which the noble Lord, Lord Dear, played an important part. I am not suggesting there is a need for such a broad inquiry now, but some particular aspects of prosecution require some form of independent review.

The Attorney-General, by statute, supervises the CPS. The House was told last week by the Minister that the practice of him meeting the director frequently and regularly continues. I was glad of that assurance. In my time, the directors would come to discuss problems in individual cases, and particularly those which might be of interest to the public. In most cases, the decision to prosecute was taken by the directors but, in the cases raised, it was of mutual assistance to discuss problems; I hope that, as a senior criminal law practitioner, I was of assistance in the delivery of justice.

I hope the decision in the Worboys case to prosecute only 23 counts—and, of those, only a single case of rape—was discussed with the Attorney-General. I fully understand the rationale of selecting only the best cases to prosecute. However, the machinery to ensure that the victims—including more than 100 other women, according to the police—knew the reasons for non-prosecution in their cases is crying out to be revisited. I have no comment to make on the sentence involving one allegation of rape.

The trial judge, the late Mr Justice Penry-Davey, whom I knew well, had wide experience of criminal law and more. It seems that the sentence was within the guidelines of the time. Had more cases been brought before the court, the sentence might well have been considerably more; the full gravity of the alleged offending would have been understood and dealt with in a sentence.

The victims are concerned about the decision of the Parole Board to release Worboys. Their particular concerns are, first, about how they found out and, secondly, about the conditions on his release. Only one victim was consulted. The Parole Board is an independent body and operates according to its own rules. The Parole Board chairman blames the Justice Secretary because the victim contact service is tasked to do that. It may be revealed in the course of court proceedings whether the Parole Board Rules were carried out. Is there a precedent for a Minister to apply for judicial review of the board’s decision? As the board is financed by the Government, and probably by the Ministry of Justice, I wonder what the precedents are. I trust that the Government will get better legal advice than they did when they appealed to the Supreme Court on Article 50.

Mr Brandon Lewis MP, now chairman of the Conservative Party, has been criticised by Sir David Latham, a former chairman of the Parole Board, as being irresponsible in his remarks. I tend to agree. If the Minister is advised to proceed on judicial review against the Parole Board, the Parole Board itself will then have to consider its position. I advise the Minister to proceed with caution.

I have nothing against Mr Nick Hardwick, whose board has a most difficult talk. It needs only one of these prisoners to go wrong to bring the whole edifice into question. I understand that only 1% do so. I hope that, in the discussions, the representations made on more than one occasion by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, about prisoners with indeterminate sentences are not forgotten.

Mr Hardwick has previously chaired the Police Complaints Commission and been Chief Inspector of Prisons. It has been noted that some gentlemen—and ladies—move seamlessly from one quango to another. Looking at it broadly and philosophically, and not being personal, might it be time for the Cabinet Office to consider whether a much wider pool of talent should be looked at, rather than playing for safety in public appointments and moving pieces around the chessboard? Mr Hardwick now wants more transparency; I wonder whether this was considered at the time of his appointment. I have looked at the Parole Board Rules and they are easily amendable by regulation.

The second issue is the disclosure of evidence which might help the defence and undermine the prosecution. When I recently questioned in the House whether we had gone backwards since 1997 in the practice of disclosure, the Minister blithely assured the House that we had not. I would be fascinated to read his brief on this point. The reality is that, with the growth of social media and the use of mobile phones, the volume of evidence to be considered has grown immensely and made the task of disclosure much more difficult. Might not the downloading of material from mobile phones during the period of alleged offending always be flagged up and specifically considered? Nevertheless, the need to disclose in the interests of justice is still paramount. Last Friday’s press reported that, after the collapse of Mr Allan’s trial and similar cases, the police in London have been issued with a new communications assurance policy to ensure full compliance. I find the Minister’s assurance to the House now even less persuasive.

The recorder, Mr Bruce Houlder QC, previously head of the court martial and a very experienced prosecutor in his time, believes that something is seriously wrong with the process of disclosure. It is not a new problem. In July 2017, the joint report of Her Majesty’s Crown Prosecution Service Inspectorate and Her Majesty’s Inspectorate of Constabulary warned the CPS about the widespread failure to hand over important evidence, and highlighted six cases of failure and called for action. Given the Attorney-General’s supervisory responsibility, I have two specific questions. First, when did the Attorney-General last discuss with the prosecuting authorities the issue of non-disclosure? Secondly, was the joint report to which I have referred discussed, and what action was taken?

There have been many cases reported recently, I fear, but going back a little to 2015 and the case of R v Salt, the then Lord Chief Justice, the noble and learned Lord, Lord Thomas of Cwmgiedd, offered guidance in a case where there were difficult counterbalancing pressures, referring to,

“where continuation would offend the court’s sense of justice and propriety or would undermine public confidence in the criminal justice system and bring it into disrepute”.

We are told that the Metropolitan Police is reviewing 30 other cases with the CPS. The role of the police in disclosure is crucial. That is the beginning. We look forward to the publication of this review. The problem seems to be much wider than the detective constable in Allan’s case. We need something more independent, from top to bottom, to ensure, in the words of the noble and learned Lord, Lord Thomas of Cwmgiedd, that there is no further undermining of public confidence in the criminal justice system.

Transparency of the Parole Board and Victim Support

Lord Morris of Aberavon Excerpts

Tuesday 9th January 2018 Lords Chamber

[Lord Keen of Elie]

I am obliged to the noble Lord. I am not going to close down the terms of a review that are yet to be determined. That will be looked at, it will come into the public domain and it will be open to your Lordships to consider whether to press for a wider review. It would not be appropriate for me at this stage to seek to set down the parameters of the review process.

As regards the level of care and supervision, an individual such as Worboys will be subject to a multiagency public protection arrangement supervised by the National Probation Service. I am conscious of the recent criticism made of the probation service, but in the context in which it was mentioned it was not directed at the National Probation Service, which deals with the most serious offenders in the circumstances.

[Lord Morris of Aberavon (Lab)]

My Lords, does the Director of Public Prosecutions still have regular and frequent meetings with the Attorney-General about the non-prosecution or prosecution of particularly important individual cases?

[Lord Keen of Elie]

My understanding is that the Director of Public Prosecutions and the Attorney-General meet on a regular basis.

CPS: Disclosure of Evidence

Lord Morris of Aberavon Excerpts

Monday 18th December 2017 Lords Chamber

Asked by

[Lord Morris of Aberavon]

To ask Her Majesty’s Government whether the Attorney General, in his statutory supervisory role over the Director of Public Prosecutions for England and Wales, will take steps to satisfy himself that, in carrying out their work, the Crown Prosecution Service have adequate resources to fully disclose all relevant evidence that might support a defendant’s case, or undermine the prosecution’s.

[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, prosecutors are obliged to disclose relevant material that could assist the defence case. That obligation is not determined by issues of cost. The Crown Prosecution Service is considering with the police a recent independent review by Her Majesty’s Chief Inspector of the CPS of disclosure policies and practice.

[Lord Morris of Aberavon]

My Lords, the then chairman of the Bar Council, Ms Heather Hallett QC, complained as far back as 1998 about non-disclosure. I believe I took steps to put matters right. Matters seem to have gone backwards since then. In the light of recent events, will the Attorney-General set up an independent inquiry, headed by a judge, to examine whether disclosure rules are being complied with, to ensure the timely delivery of justice?

[Lord Keen of Elie]

My Lords, disclosure in the context of criminal cases has not gone backwards since 1998. There is no present intention to set up an inquiry of the type referred to by the noble and learned Lord.