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

Lord Ponsonby of Shulbrede Excerpts

Thursday 22nd October 2020 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, I too thank the Minister for her explanation of this statutory instrument. I am also not a lawyer. I remind the House that I sit as a magistrate in central London. When I started as a magistrate, some 15 years ago, if we had a trial about a street fight, for example, we would usually have a handful of witnesses and maybe some CCTV to help us reach our verdict. Now, the very first thing that happens when there is a street fight is that it is filmed. Anyone in the vicinity will walk towards that street fight and film the activity. When the police arrive, they will all be wearing body-worn video cameras. This all means that there is a huge amount of digital data generated for one street fight. It is for the police and the CPS to reduce this huge amount of data to something that is manageable and fair, so it can be taken to trial for the court to determine the results. This is not a trivial exercise and it goes to the heart of the problem we are discussing today: the disclosure of evidence. We have seen where this has gone wrong in high-profile cases, but it is a very live issue in a huge proportion of the day-to-day cases that we see in courts up and down the country.

There was a damning report by the Justice Select Committee in 2018, which identified that the CPS may have prioritised case timeliness over getting the decisions right. It concluded that

“disclosure failures have been widely acknowledged for many years but have gone unresolved, in part, because of insufficient focus and leadership by Ministers and senior officials.”

Today’s statutory instrument seeks to amend the CPIA 1996 by introducing a revised code of practice. The code sets out the way police and others must record, retain and reveal to the prosecutor material obtained during the investigation, including material that may undermine the case against the individual. The code was last revised in 2015 and the main revision is the introduction of the rebuttal presumption, which other noble Lords have agreed is a good step forward. It says that certain types of unused material should meet disclosure tests and should be revealed unless there is a reason not to reveal them. In the Attorney-General’s 2018 review, he concluded that there were certain types of unused material that almost always assisted the defence but were not frequently disclosed. The introduction of a rebuttal presumption seeks to address this point.

The Minister will be aware that 95% of all criminal cases are heard in magistrates’ courts, and that the 5% heard in Crown Courts tend to be more serious cases with longer sentences applied to them. So in magistrates’ courts, there is a very high volume of cases, most of which are simpler and shorter. Nevertheless, a number of cases in magistrates’ courts are also very long and complex, even though they are less severe. The Attorney-General’s review has made a number of cross-cutting recommendations that affect both Crown Courts and magistrates’ courts, but in paragraph 23 in particular it makes the point about the disclosure test for high-volume crime cases—these are the type of crime cases seen in magistrates’ courts. The Attorney-General’s review recommends that there should be a rebuttal presumption in favour of disclosure for these types of cases. There is a huge cost implication for this. Can the Minister say how adequately she believes they have looked at the cost of this review process?

It is certainly my experience—and, I suspect, that of anyone who has sat in a magistrates’ court—that disclosure, or problems with disclosure, very often leads to delay in cases being heard. There is very often the obligation on the defence to call for an additional case management hearing, or something like that, because they are just not getting the disclosure which they are due under the current rules, and of course there will be more disclosure under these revised rules. Can the Minister say what review the Government will be doing of this? Is there any additional money or training for prosecutors so that they can meet these new obligations, so that this will not be yet another source of delay, which we see so often in magistrates’ courts?

We as the opposition party are supportive of these changes and in particular of the rebuttal presumption. We look forward to reviewing them and to all people participating in the court process believing that they have had at least a fair hearing.

I want to pick up on a couple of points made by previous speakers, the first of which is from the noble Lord, Lord Thomas. It is certainly my experience, in particular in youth courts, that a very large proportion of youths—I would say a majority—go “no comment”. They do so because that is what they pick up from media and their friends, and they are advised to do it by their lawyers. It is not helpful to the process. The noble Lord, Lord Thomas, made a point about lawyers taking a calculated risk that it would not be held against the youth too much, but it is slowing up the process, which is not for the benefit of the youths. It is not that unusual that, when you hear the youth’s explanation, it is one that deserves a hearing, but they did not say so when they were in the police station. That is an important point which the noble Lord, Lord Thomas, raised. I look forward to the Minister’s answer.