Criminal Procedure and Investigations Act 1996 (Code of Practice) Order 2020 — House of Lords, 2020-10-22
Topic: Law and Crime
Jane Scott (Conservative, Centre-right): My Lords, the purpose of this order is to bring into force a revised code of practice under the Criminal Procedure and Investigations Act 1996. The revised code will replace the current code, which was introduced in 2015 Material that is obtained in the course of a criminal investigation may include material that tends to undermine the prosecution case or support the case for the accused. Disclosing such material to the defence is crucial to ensuring a fair trial and avoiding miscarriages of justice. Unfortunately, disclosure does not always take place promptly and can result in trials collapsing. This happened in several high-profile cases in late 2017, shaking the public’s confidence in the administration of justice A review of the efficiency and effectiveness of disclosure had already been announced by the then Attorney-General; its findings were published in November 2018. The review highlighted significant concerns with the culture around disclosure, engagement between relevant parties—prosecutors, investigators and defence practitioners—and the challenges of modern technology. It made a series of practical recommendations, many of which aligned with the findings of the Justice Select Committee’s inquiry into disclosure, which reported in July 2018. These included the need for a shift in culture so that disclosure was regarded as a core duty, better technology to review the volume of material available and clearer guidance on handling sensitive material Giving effect to these recommendations involved revising both the code of practice with which we are concerned today and the Attorney-General’s disclosure guidelines. The code sets out the manner in which police officers are to record, retain and reveal to the prosecutor material obtained in a criminal investigation. The guidelines are a more detailed document, aimed at prosecutors, investigators and defence practitioners, and designed to embed nationally consistent best practice The ethos of the guidelines has been reworked so that investigators and prosecutors are encouraged to adopt a "thinking approach" to the disclosure process, treating it as integral to the investigation rather than simply an "add-on". To aid this new approach, and in an attempt to change the culture that exists around the current disclosure process, the guidelines have been reconstructed to follow the trial process, starting from the early investigatory decisions and ending at the conclusion of trial I am extremely grateful to all those across the criminal justice system who have come together to solve one of the most complex issues in it. The police and CPS especially have been at the forefront of this whole-system focus to ensure that we uphold our fair trial process. Through their joint working and close collaboration with government officials and other criminal justice partners, the revised guidelines and code of practice will ensure that a new thinking culture is embedded to improve the performance of disclosure practices One of the most significant changes for those on the operational front line is the introduction of a rebuttable presumption. The Attorney-General’s review found that there are certain items of material that almost always assist the defence and therefore meet the test for disclosure but are frequently not disclosed until there has been significant correspondence and challenge from the defence, wasting time and resources. The review therefore proposed that there should be a rebuttable presumption that certain categories of unused material meet the disclosure test. This change is not intended to encourage automatic disclosure, but it should support investigators and prosecutors in dealing with the volume of material that they are required to consider by acting as a "nudge", requiring them to explain why the material in question does not meet the disclosure test if that is their conclusion The most important changes to the code of practice are associated with this recommendation, but the opportunity has also been taken to make other amendments designed to improve clarity. The streamlined disclosure certificate that forms an annexe to the existing code of practice has been omitted from the new code; the successor form is being revised under the auspices of the Criminal Procedure Rule Committee and the Lord Chief Justice will be invited to authorise its issue in due course In accordance with the process set out in the Criminal Procedure and Investigations Act 1996, the revised code of practice was published in draft for consultation in February this year, together with the Attorney-General’s revised guidelines. The deadline for responses was extended by three months to take account of the Covid-19 emergency. A total of 45 responses was received; the revised code was then amended slightly further in the light of them The order will bring the revised code of practice into force on 31 December 2020 or, in case both the necessary affirmative resolutions are not forthcoming by then, the day after the second resolution is passed. There is a particular reason for a relatively long delay before the intended commencement date: routinely preparing documents for service, including by redacting them where necessary, will have an impact on the police. That impact can be mitigated by greater use of computer technology to redact documents and images. Police forces are making preparations to enable them to do this, but some forces needed more time to ensure that the necessary software was ready. I beg to move.