Right Or Wrong?

The Criminal Procedure and Investigations Act, 1996 (“CPIA”)

The CPIA appear to be making problems for Miscarriage of Justice victims or for people being fitted up by the police. Relevant sections are Sections 3 to 5 and Sections 17 to 18 of the CPIA Act 1996 (the full text of the CPIA can be viewed here).

These deal with:

• Pre-trial disclosure of documents and other records created by police investigations
• Obligations on the defence to disclose defence materials to the Prosecution
• The confidentiality of Prosecution documents

Sections 17 and 18 of the CPIA Act 1996, cover confidentiality, and come from the problem of the abuse of records disclosed in sex offence cases. These were being used in prison as pornographic materials. Note that this is a limited problem – there has never been any problem with other case documents.

The problem, which the pre-trial disclosure attempts to deal with, concerns police paperwork. Two appeal Court decisions created the problem…

First, the Court leant over backwards to help Ernest Saunders, one of the Defendants in the share-rigging scandal which enabled Guinness to take over Distillers. The obligations of the Prosecution to disclose materials were widened, and when this was applied in the case of Judith Ward (wrongly convicted of the M62 coach bombing), the Prosecution disclosure provisions were stretched to include everything produced in the police investigation.

This led to the copying of vast amounts of paperwork to be handed over to the defence. In the Bridgewater Four case, there were over a million documents. The police made a lot of fuss, saying that much of this paperwork was irrelevant to the cases in which it was disclosed, and their time and money was being wasted!

The CPIA Act 1996 Section 3 requires “the Prosecutor to disclose, to the Accused, any previously undisclosed Prosecution material which, in the Prosecutor’s opinion, might undermine the Prosecution case”[1]. Sections 23 and 24 of the CPIA Act 1996 provide for a “Code of Practice”, which delegates the decision making on disclosure to police officers.

We should take the reasons given for these changes in the law on disclosure, with several large pinches of salt:

• As the problem was made by the police in the first place; photocopying documents that already exist is not a big burden to impose on the police
• What was being disclosed usually exposed bad police work, incompetent investigations, time wasting, malpractice, corruption, etc.; so the police were looking for a means of covering up, by recovering control of documents
• The result of complete disclosure was to show that a lot of people had been wrongly convicted and that the Criminal Justice system is not working very well.
• The administrative problems caused by complete disclosure fell on the Courts (defence cases could be more thorough), particularly on the appeal courts (because there were more appeals) and, worst of all, on the lawyers, who were faced with having to do their jobs properly.

We are therefore entitled to put the CPIA disclosure rules in a wider context.

All the major miscarriage of justice cases feature non-disclosure of important police records. There are two possible solutions to dealing with this potentially vast number of embarrassing cases. One is to spend a lot of money and do a lot of hard work to change police investigations, Prosecutions, defence lawyers’ work. To enlarge the Criminal Cases Review Commission so that fewer Miscarriages of Justice occur and are dealt with effectively. More money would have to be spent on Courts too, or they would be clogged up even more than they are already!

The other much cheaper and simpler solution is to prevent any of us from knowing about miscarriages of justice in the first place by limiting disclosure. This has an added bonus (for the police and the Government), of making it easier for the police to “fit people up”, therefore showing a better clear up rate for crime. Needless to say, passing and implementing the CPIA, unite both Labour and Conservatives in selecting this second solution.

Ambush defences are those where the defence introduces some important evidence at the last moment, just before or during a trial, so that the Prosecution has no time to respond to it. The CPIA Act 1996, Section 11, does not ban last-minute evidence, but says that the court can draw adverse inferences from it. It can count against the Defendant, as if she or he had deliberately withheld it in order to mislead the court so, in effect, an ambush defence can be turned into evidence against the Defendant.

In lobbying for this change, the police claimed that professional criminals frequently used this tactic. Independent research has shown that ambush defences are very, very rare. Needless to say, gullible ministers and MPs have believed police disinformation.

The cover-up, far from hiding the problem, is bringing the whole criminal justice system into (even more) disrepute.

Of course evidence of vital importance to the defence is not being disclosed, so there are more miscarriages of justice – as any of us could predict.

In order for the police to assess whether the materials they have are relevant to the defence, they have to know what the defence case is. The defence statement, which is a written statement, sets out in general terms the nature of the accused defence. Indicating the matters on which the accused takes issue with the prosecution and sets out, in the case, each matter and the reason why the accused takes issue. Where the defence statement discloses an alibi, the Accused must give particulars of the alibi in the statement.

This is based on the principle that, if you are not guilty, you have got nothing to fear. We all know that is not true. There has long been a provision for advance disclosure by the defence of alibi witnesses. Although the defence is not allowed to interview Prosecution witnesses, the police always check up on defence witnesses, giving them the opportunity to offer these witnesses the chance of changing their story! The CPIA defence disclosure provisions give the police the chance to interfere with defence evidence; or find evidence of their own to cast doubt and, as we know, they have the resources and power to do this.

One should consider Sections 5 and 11 to be the most dangerous provisions of the CPIA Act 1996.

There has been alarm amongst campaigners and journalists that provisions in the Act effectively prevent journalists from reporting upon Miscarriage of Justice cases without leave of the Court. To report such cases would be Contempt of Court. This would apply to campaign materials, public meetings, etc.

In effect, it would restrict the whole business of challenging miscarriages of justice to lawyers and the CCRC. This interpretation may be right, in which case, it would be a major problem for us, when trying to help with cases in which the police investigation started after 1 April 1997, when the CPIA came into being.

Are these really problems? It would be wrong to say that any of these provisions of the CPIA would not cause problems in practice for suspects, defendants, witnesses, and for those of us trying to help deal with their problems. Therefore, we do not have to just give up. The CPIA does not just hand over total control of case materials to the police and CPS (The Crime Prosecution Service).

According to the Home Office’s Guide to the CPIA, Section 17 makes provision for protecting unused material, that is disclosed by the prosecutor, to an accused (or to his or her legal adviser), under the new disclosure scheme set out in Part I of the Act. Such material will have to be treated by the Accused and by the Accuser’s legal adviser as confidential and cannot be used. Only in exceptional circumstances, with the permission of the Court, for the purposes of the criminal proceedings to which it relates, or any subsequent associated criminal proceedings such as an appeal. Any unused Prosecution material that is read out or displayed in open Court becomes exempt from the confidentiality requirement.

This gives the impression that only lawyers and Defendants could see such case material. However, this is not exactly what the CPIA says. Section 17 (2) states:

“The Accused may use or disclose the object or information with a view to the taking of further criminal proceedings (for instance, by way of appeal).”

So, if prisoners write to us asking for help in preparing an appeal, or even advice as to whether they could appeal, this would be “with a view to the taking of further criminal proceedings”, and they could disclose anything they wanted to us.

If we wish to tell other people about the case, using documents disclosed by the police, again “with a view to the taking of further criminal proceedings”, could we do so by publishing articles, holding public meetings or broadcasting TV programmes?

The CPIA is quite clear, “as long as an accused person discloses material in accordance with Section 17, then there is no contempt of court”. If we use it for other purposes, e.g. in our publicity materials, then we and the prisoners concerned would only be in contempt of court if the prisoner had agreed to this other use. (So we would not ask for prisoners’ agreement to the use of case materials in preparing publicity).

Bearing in mind the original purpose of the CPIA is to “prevent abuse of prosecution materials as pornography”; we should not jump to the conclusion reached by S. Wales Liberty. We have no intention of breaching the spirit, the purpose or the letter of the Act.

Everyone is right to be worried about handing over total control of disclosure of police produced materials to the police themselves. The CPIA Act does not say that control has to be given to the police. It says:

“ (3) (1) The Prosecutor must, (a) disclose to the Accused any Prosecution material which has not previously been disclosed to the Accused and which in the Prosecutor’s opinion might undermine the case for the Prosecution against the Accused, or (b) give to the Accused a written statement that there is no material of a description mentioned in paragraph (a)”.

And:

“(8) (2) If the Accused has, at any time, reasonable cause to believe that (a) there is Prosecution material which might be reasonably expected to assist the Accuser’s defence the accused may apply to the court for an order requiring the Prosecutor to disclose such material to the Accused.”

In other words, the CPS have passed over, to the police, all the hard work of sifting out materials to be disclosed to the defence, but that does not get them off the hook. They remain responsible for disclosure, and they can get into trouble if they do not disclose relevant materials.

The difficulty here is that we have to rely on defence lawyers to force the CPS to check out whether everything that might possibly be relevant has been disclosed. We all know the problem of getting defence lawyers to do their job properly! We are not involved in pre-trial preparation of cases, at least, not yet. We do not see why CPS lawyers do not have to comply with the CPIA by lawyers preparing appeals or CCRC applications. They could go and sort through police files themselves because, of course, police officers are not qualified to assess whether the disclosure requirements of Section 3 of the CPIA Act 1996 have been met.

Forcing police to make enquiries

There are two basic systems of law which operate in the UK and the rest of Europe:

• the adversarial
• the inquisitorial

The system in the UK is basically adversarial. In theory, the Prosecution and the defence fight it out like adversaries in battle. In the inquisitorial system the judge is supposed to direct the whole investigation, and trial, as an impartial search for truth. In practice, the systems are mixed up. We have an adversarial system in court, but the police are supposed to provide all the materials as if they worked in an inquisitorial system.

Before anyone jumps to the conclusion that an inquisitorial system must be better than ours, it should be mentioned that many people who live in countries that have that system (like France) think our system is better. This is because it makes provision for a full defence. Defendants have lawyers, experts, etc. on their side. Many people in the UK have argued that we should have a more inquisitorial system. However the danger is that individuals are then left with no protection against the might of the whole criminal justice system. It is wise to mention these two contrasting systems, because the CPIA changes the emphasis of our system towards the inquisitorial in two ways.

First, it passes all the decision making of the case over to the prosecution, who are expected to act impartially when deciding on disclosure. Secondly, Part II of the Act states clearly that the police should have an inquisitorial role:
“ 23. – (1) The Secretary of State shall prepare a code of practice containing provisions designed to secure (a) that where a criminal investigation is conducted all reasonable steps are taken for the purposes of the investigation and, in particular, all reasonable lines of inquiry are pursued.”

Just imagine what a difference it could have made to almost any case we have come across if the police had in fact pursued ‘all reasonable lines of inquiry’. If we could argue that, by ignoring obvious leads or evidence, the police had breached the “Code of Practice”.

However, the Code of Practice is pathetically inadequate. It merely states:
“ 3.4 In conducting an investigation, the investigator should pursue all reasonable lines of inquiry, whether these point towards or away from the suspect. What is reasonable in each case will depend on the particular circumstances.”

Section 4.3 states that “negative information” is often relevant to an investigation and must be recorded. The example given is: a number of people present in a particular place at a particular time who state that they saw nothing unusual i.e. an alleged crime can not have happened. This could be applied to scientific investigations.

We should demand, directly and through our MPs, that the Code should be revised as soon as possible so as to give this Section of the CPIA some teeth. The duty of the police to investigate properly could be made very clear. For example, guidance on investigating alternative suspects, especially informers dealing with alibi and other defence witnesses (i.e. not threatening them or putting them off, or rubbishing what they have to say), looking positively for scientific evidence that shows suspects might not, or could not have committed crimes.

Why should this Act be repealed? We think we should support what S. Wales Liberty says, even if the third point is inaccurate. Newspapers and TV programmes employ lawyers to check their reports/programmes and these people are obviously over-cautious. They will tell the reporters not to use materials which have not been produced in court, so the effect may be the one predicted by Liberty.

We should back them up with other arguments. The CPIA is not helping the police with the administrative burden, but making it worse. The CPIA encourages the police to be inefficient by giving them the opportunity to cover up their own mistakes. The CPIA requires the police to be inquisitorial, yet there is no practical means of making them impartial.

The CPS has a responsibility on disclosure, but it is still the Crown Prosecution Service, acting with the police against the defence. Defendants will never be able to trust it.

The police already routinely intimidate witnesses, and the CPIA gives them more opportunity to do this but, with less control, because they do not have to disclose all the records relating to their dealings with witnesses.

The effect of the act will not be to reduce the amount of time spent in Court but to increase it. This is because increased non-disclosure will mean more recourse to court to rule on disclosure applications.

Realistically, this Act probably will not be repealed. Therefore, we need a strategy for dealing with it. Making sure defence lawyers force the CPS to disclose everything; making sure defence lawyers force the police to carry out impartial inquiries and preventing journalists from giving in to imaginary threats. Do they really think they are going to be held in contempt of court for exposing miscarriages of justice? After all, anyone who is jailed for helping to overturn wrongful convictions will be a hero – a major boost to a journalist’s career!