Cover up – or opportunity?
the Criminal Procedure and Investigations Act 1996 (CPIA)
notes by Andrew Green
Background to the CPIA
The sections of the CPIA which appear to be making problems for miscarriage of justice victims or for people being fitted up by the police are 3 to 5 and 17 to 18 (the full text of the CPIA is on the internet at www.opsi.gov.uk/acts/acts1996/96025--a.htm). These sections deal with
a. pre-trial disclosure of documents and other records created by police investigations
b. obligations on the defence to disclose defence materials to the prosecution, and
c. the confidentiality of prosecution documents.
Sex cases materials
Sections 17 and 18, covering confidentiality, 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.
Response to miscarriage of justice cases – the cover up
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. (Of course, they created all this junk in the first place.) So the CPIA 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’ (Home Office Guide - on internet). Sections 23 and 24 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:
the problem was made by the police in the first place;
photocopying documents that already exist isn’t a very 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 isn’t 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 (and every case we come across at INNOCENT) 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, and to enlarge the Criminal Cases Review Commission so that fewer miscarriages of justice occur or so they are dealt with effectively. More would have to spent on courts, too, or they would be clogged up even worse than they are.
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. And that has an added bonus (for the police and the government) of making it easier for the police to fit people up, and so to show better clear up rates for crime. Needless to say, by passing and implementing the CPIA, both Labour and Conservatives are united 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 (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, police disinformation was believed by gullible ministers and MPs.
Non-disclosure before trial
Bob Woffinden’s excellent article in The Guardian (4 May 1999, available on the internet or ask AG for a copy – email email@example.com) shows how the duty of disclosure imposed by the CPIA on the CPS and delegated to the police is causing them more problems, not less – because police officers are forced to review all the materials they produce and decide on each document whether it should be disclosed or not. Since they aren’t lawyers, the police find this difficult and time consuming. (Serve them right.)
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.
Pre-trial defence disclosure
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 which sets out in general terms the nature of the accused's defence; indicates the matters on which the accused takes issue with the prosecution; and sets out in the case of each matter 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’ (Home Office Guide).
This is based on the principle that if you’re not guilty, you’ve got nothing to fear. We all know that’s not true. There has long been a provision for advance disclosure by the defence of alibi witnesses. Although the defence aren’t allowed to interview prosecution witnesses, the police always check up on defence witnesses – giving them the opportunity to bully these witnesses into changing their story. The CPIA defence disclosure provisions give the police the chance to interfere with defence evidence or find their evidence of their own to cast doubt on it – and, as we know, they have the resources and the power to do this.
No one is saying in public that this is a major problem, because no one dares to say that the police routinely intimidate witnesses.
If I was being fitted up, I’d consider sections 5 and 11 to be the most dangerous provisions of the CPIA.
Use of materials after trial
There has been alarm amongst campaigners and journalists that, as S. Wales Liberty puts it, ‘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 force (so it probably doesn’t apply to any of the cases that Innocent is currently involved in). (But see next section.)
Are these really problems?
It would be wrong to say that any of these provisions of the CPIA won’t cause problems in practice for suspects, defendants, witnesses and for those of us trying to help them deal with their problems. But we don’t have to just give up. The CPIA doesn’t just hand over total control over case materials to the police and CPS.
According to the Home Office 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 accused's legal adviser as confidential and cannot be used, except with the permission of the court, other than 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 case materials. But it’s not exactly what the CPIA says:
17 (2) The accused may use or disclose the object or information –
¼ (b) with a view to the taking of further criminal proceedings (for instance, by way of appeal) ¼
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. And if we want to tell other people about the case, using documents disclosed by the police, again ‘with a view to the taking of further criminal proceedings’, why shouldn’t we do so by publishing articles or 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 then use it for other purposes – for example, 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 should not ask for prisoners’ agreement to the use of case materials in preparing publicity.)
Bearing in mind the original purpose of the CPIA – preventing 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. (But we can also support the campaign to repeal this part of the CPIA – see Courses of Action.)
Everyone is right to be worried about handing over total control of disclosure of police-produced materials to the police themselves. But the CPIA act doesn’t 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)
(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 accused’s defence ¼
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 may be a bunch of ******* lawyers who have passed over to the police all the hard work of sifting out materials to be disclosed to the defence, but that doesn’t get them off the hook. They remain responsible for disclosure, and they can get into trouble if they don’t 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, and we all know the problem of getting defence lawyers to do their job properly. We aren’t involved in pre-trial preparation of cases – at least, not yet. But I don’t see why CPS lawyers can’t be forced to comply with the CPIA by lawyers preparing appeals or CCRC applications – they could be made to go and sort through police files themselves, because, of course, police officers aren’t qualified to assess whether the disclosure requirements of section 3 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 and 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, I should mention that many people who live in countries who have that system, like France, think our system is better (!!), 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, but the danger is that individuals are left with no protection against the might of the whole criminal justice system.
I mention these two contrasting systems because the CPIA changes the emphasis of our system towards the inquisitorial, in two ways. First, because it passes all the decision making on the case over to the prosecution, who are expected to act impartially when deciding on disclosure.
Second, because of Part II of the Act, which doesn’t seem to have been given much attention, and this says 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 pursued¼
For the first time (as far as I know), a law is saying that the police should do their job properly. Of course this doesn’t mean they will.
But just imagine what a difference it would have made to almost any case we’ve 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 says:
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 says 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’t have happened. This could be applied to scientific investigations, for example when the police might expect to find fibres transferred which would incriminate a suspect, but they can’t find any¼
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 police to investigate properly could be made very clear, with (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
Changing the law
S. Wales Liberty is asking us to support their campaign to persuaded the government to repeal the CPIA. If we are going to support this, by writing to MPs etc., then we have to be reasonably well informed about the act, how it’s implemented, and what its likely effects are.
Why should this Act be repealed?
I think we should support what S. Wales Liberty says, even if their third point is inaccurate. Newspapers and TV programmes employ lawyers to check their reports and programmes, and these people are always over-cautious. They’ll tell the reporters not to use materials which haven’t been brought out 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 with the police 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, but this is not stated anywhere, and there is no practical means of making them impartial.
The CPS has a responsibility on disclosure, but it’s still the Crown Prosecution Service, acting with the police and 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 don’t 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, because increased non-disclosure will mean more recourse to court to rule on disclosure applications.
This law is designed to prevent us from knowing about miscarriages of justice, but it won’t work. It will soon be obvious that it is just a crude cover-up.
This is the badly thought out, rushed legislation by a discredited home secretary (Howard) attempting to gain a few votes for his party at the last moment – and failing. Why should Labour implement it?
But do we want part II repealed?
Do we want the CPS to be given a statutory duty to disclose everything?
Making the CPIA work for us
Realistically, this Act probably isn’t going to be repealed, and we should have a strategy for dealing with it, including
making sure defence lawyers force the CPS to disclose everything;
making sure defence lawyers force the police to carry out impartial inquiries;
preventing journalists from giving in to imaginary threats. Do they really think they’re going to be held in contempt of court for exposing miscarriages of justice? (Anyone who is jailed for helping to overturn wrongful convictions will be a hero – a major boost to a journalist’s career!)