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.