Laid by the Ministry of Justice on 10 September 2020, the Criminal Procedure and Investigations Act 1996 (Code of Practice) Order 2020 seeks to introduce a revised code of practice under the Criminal Procedure and Investigations Act 1996. The code sets out the way investigators, such as police officers, must record, retain and reveal to the prosecutor material obtained during the course of a criminal investigation. This forms part of a process called ‘disclosure’.

The new code would come into force either on 31 December 2020 or the day after the second House approves the order, whichever is later. The Government intends for this commencement date to give police forces sufficient time to complete preparations for performing the additional review and redaction of documents that the revised code will require.

The order is subject to the ‘made affirmative’ procedure. This means that both Houses must approve it within 28 parliamentary sitting days of the date that the instrument was laid before Parliament or it will cease to apply.

What is disclosure?

‘Disclosure’ refers to the process by which someone charged with a criminal offence is provided copies of, or access to, material from the investigation that is capable of undermining the prosecution case and/or assisting their defence. The duty to disclose this material applies to both investigators and the Crown Prosecution Service (the prosecution).

To ensure a fair trial and avoid miscarriages of justice, investigators have a duty to pursue all reasonable lines of enquiry during the course of a criminal investigation. This includes investigating matters that may point towards innocence as well as guilt.

Investigators must consider whether unused material, gathered during the course of an investigation, meets the ‘disclosure test’. ‘Unused material’ is evidence that has been retained and may be relevant to the investigation but does not form part of the case for the prosecution against the accused. The disclosure test requires the prosecution team to provide relevant material to the defence team if:

[…] the material might reasonably be considered capable of undermining the case for the prosecution against the accused, and/or of assisting the case for the accused, and which has not previously been disclosed.

Why is the order being introduced?

The disclosure of evidence has been the subject of scrutiny for over a decade. Several high-profile cases put disclosure practices into the spotlight and prompted reviews across the criminal justice system. Two such cases are R v Mouncher & Others [2011] and R v Allan [2017].

On 11 December 2017, a review of disclosure was announced. It would be led by the then Attorney General, Geoffrey Cox. The scope of the Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System was wide, covering magistrates and crown court cases, existing codes of practice, protocols, guidelines and legislation, amongst others.

The review’s final report was published in November 2018. It found that there were certain items of unused material that would “almost always assist the defence”, but were not frequently being disclosed until there had been significant challenge from defence teams. The report stated that this wasted time and resources. Amongst other things, it recommended the introduction of a rebuttable presumption in favour of the disclosure of certain categories of unused material. Currently, investigators and prosecutors must determine if material meets the disclosure test. The rebuttable presumption will reverse this approach for certain categories of unused material, requiring investigators and prosecutors to assume, unless a good reason exists to rebut it, that it will meet the disclosure test.

Several other reports, inspections and reviews have also highlighted problems in the disclosure process. This included the House of Commons Justice Select Committee’s 2018 report on disclosure and the National Disclosure Improvement Plan jointly led by police forces, the Crown Prosecution Service and College of Policing.

What does the instrument do?

The order will bring into force an updated code of practice under Part II of the Criminal Procedure and Investigations Act 1996 (the CPIA). It will apply to England and Wales only. Part II of the CPIA makes provisions for the publication and revision of a code of practice that prescribes the disclosure process.

The current code of practice was last revised in 2015 and will be replaced when the order comes into force. The order will revise the code to implement certain recommendations made in the Attorney General’s review.

The main revision to the code will see the introduction of a rebuttable presumption that certain types and categories of unused material meet the disclosure test unless a good reason exists to show that the test is not met. The list of unused material subject to this rebuttable presumption will be as follows:

  • Crime reports, including: crime report forms or any contemporaneous recording of an incident; an investigation log; any record or note made by an investigator, on which they later make a statement or which relates to contact with the suspects, victim or witnesses; an account of an incident or information relevant to an incident or record of actions carried out by officers (such as house-to-house, CCTV or forensic enquiries) noted by a police officer in manuscript or electronically.
  • The defendant’s custody record.
  • Any incident logs relating to the allegation.
  • Records which are derived from tapes/recordings of telephone messages (for example, 999 calls) containing descriptions of an alleged offence or offender.
  • Any previous accounts made by a complainant or by any other witnesses.
  • Interview records (written records, or audio or video tapes, of interviews with actual or potential witnesses or suspects).
  • Any material casting doubt on the reliability of a witness, eg previous convictions and cautions of any prosecution witnesses and any co-accused.

What parliamentary scrutiny has taken place?

The Delegated Legislation Committee in the House of Commons considered the order on 8 October 2020. The Parliamentary Under-Secretary of State for Justice, Chris Philp, referred to the introduction of the rebuttable presumption, as well as other additional clarifying amendments that the order will make:

The most important changes to the code of practice are associated with [the Attorney General review’s rebuttable presumption] recommendation, although the opportunity has also been taken to make other amendments designed to improve clarity. The streamlined disclosure certificate, which forms an annex to the existing code of practice, has been omitted from the new code. The successor form is being revised under the Criminal Procedure Rule Committee, and the Lord Chief Justice will be invited to authorise its issue shortly.

The Shadow Minister for Justice, Peter Kyle, said that Labour were supportive of the changes, in particular the introduction of the rebuttable presumption. Following this short debate, the instrument was approved.

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