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,...Request free trial
Asked by
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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.
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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.
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(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.
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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.
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(LD)
Does the Minister not agree that it would be quite
disproportionate for the victim to be required to disclose
all her emails and electronic messaging to her attacker and
his lawyers to trawl through at considerable public
expense? Will the Minister not pursue the suggestion I made
in our debate a fortnight ago that there should be a
protocol whereby a defendant is required to give key words,
such as his name, his nickname, places, people and events,
to the prosecution for it to carry out such an
investigation and to disclose whatever material he has
suggested is produced?
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My Lords, I certainly agree with the indication that it
would be disproportionate for a victim or complainer to
have to disclose the entirety of their social media
communications. It would be intrusive and inappropriate,
and would impact upon the willingness of complainers to
come forward in particular circumstances, so there has to
be a balance. It would also raise very real data protection
issues, so we have to take account of that. As regards a
protocol, we are reviewing protocols in the context of
disclosure, and I noted what the noble Lord said about a
keyword search.
-
(Con)
My Lords, is it feasible for the police to ask the
complainer whether they have commented on the relationship
in question in any media? I do not mean that they should
give any detail, but at least it would alert the police as
to whether it was worth looking at. Secondly, it is over 32
years since I had responsibility for these matters in
Scotland, but I wonder whether there is any suggestion that
this problem exists there.
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I am obliged to my noble and learned friend for his
observations. On the police inquiries, as I understand it
there is no reason why the police should not make
appropriate inquiries of a complainer with respect to her
social media and other communications that might be
relevant to a particular complaint. In addition, the
defence have to submit a schedule outlining their own case,
in which they will have the opportunity to identify from
the police schedule of material that has been recovered
that which should be disclosed for the purposes of trial.
On whether a similar issue has arisen in Scotland,
disclosure is an issue in all jurisdictions; it is a
question of how it is handled. Here we are concerned with
the handling issue, not a resource issue.
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(CB)
My Lords, I could not disagree more with the Minister. We
are, quite simply, dealing with a resource issue. The law on
disclosure is as clear as daylight, but it was written before
iPhones and social media came into existence. Does the
Minister agree that whatever guidance is issued to the police
and their forensic IT investigators, there has to be some
concern about whether they have the resources to do this in
cases of rape when they also have cases of terrorism and
organised crime to deal with?
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My Lords, clearly the development of digital media has
increased the demands made on both the police and the
prosecution service in the investigation of crime. Indeed, in
their most recent report, National Disclosure Improvement
Plan, the National Police Chiefs’ Council, the College of
Policing and the Crown Prosecution Service indicated that
they will develop a joint protocol by March 2018 for the
examination of digital media.
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(Lab)
My Lords, on the one hand we have urgent crisis reviews of
pending prosecutions for fear of potential non-disclosure and
unsafe trials and, on the other hand, we have various women’s
groups telling us that the existing law designed to protect
women from degrading questioning about their sexual histories
is not being applied, and that causes fear as well. To add
insult to injury, a notorious sex offender will be released
on parole without rhyme or reason and without a voice for the
victims of crime. Will the Minister please agree that it is
time for the Government to give urgent attention, if not
resources, to restoring faith, trust and confidence in our
criminal justice system?
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My Lords, what is necessary is that a responsible Government
should not arm wave but, instead, respect the rule of law.
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