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Criminal Procedure and Investigations Act 1996 (Code of Practice for Interviews of Witnesses Notified by Accused) Order 2010

My Lords, the order before us today is to bring into operation a new code of practice under Section 21A of the Criminal Procedure and Investigations Act 1996. The code has been laid before each House in accordance with the statutory requirements. The code of practice will enable us to bring into force Section 34 of the Criminal Justice Act 2003. I can confirm that it is our intention to do so on the same day as the code enters into force; namely, 1 May. Section 34 of the Criminal Justice Act 2003 adds a new Section 6C to the Criminal Procedure and Investigations Act. This new section extends the existing requirement on the accused to disclose alibi witnesses before the trial in Crown Courts, and in some cases in magistrates’ courts, to defence witnesses generally in all proceedings. The new section will primarily strengthen the court’s case management powers and in so doing encourage the more effective progression of criminal proceedings. It will also enable the police to carry out criminal record checks at an earlier stage and so assist the prosecution to prepare more expeditiously any bad character applications that may be required before the trial. The background to the code of practice lies in the parliamentary passage of the new witness disclosure requirement. Some concerns were expressed at the time by the Home Affairs Committee, and subsequently, that the requirement might enable the police to apply undue pressure on defence witnesses. These concerns were to some extent overstated; the police will often be aware of the existence of a witness, merely as a natural consequence of their ordinary investigative procedures, and that has always been the case. Our position then and now is that it is important to allay any possible perception of a risk of police impropriety in relation to witnesses disclosed under the new provisions, and that is why we legislated for the present code of practice. The code is essentially a safeguard. It sets out clearly the procedures expected of the police and other investigators in arranging any interviews with the disclosed witnesses, and in conducting them. We anticipate that in practice such interviews will be relatively rare. The code of practice has been the subject of extensive consultation. The primary legislation requires only consultation with four named authorities, but we conducted a full public consultation exercise in late 2004. As a result of that consultation, a number of points came to light requiring further consideration. We have recently reconsulted the four statutory consultees. It is fair to say that the code has grown somewhat as a result of the consultation process. During the passage of the then Criminal Justice Bill, we supplied Parliament with an indicative version, which covered rather less than a page of text. The final version before us today goes into considerably more detail and is set out more formally. I trust that the Committee will take that as a sign of the seriousness with which we have approached the exercise. On the detail of the code, the fundamental point we need to bear constantly in mind is that the whole process of being interviewed is entirely voluntary on the witness’s part. The witness can decline to be interviewed at the outset and walk away from the interview at any stage. One could always suggest further areas in which the code might be more prescriptive but, given the voluntary nature of the process on the witness’s part, there is a limit to the usefulness of including further detail. Our view is that the document now strikes the right balance in this respect. The case for the new witness disclosure requirement, and hence the code, remains strong. The case of R v Warley Magistrates is symptomatic. In that case, a magistrates’ court attempted to use the Criminal Procedure Rules to obtain advance disclosure of defence witness details very much along the lines that the statutory provision will require. The High Court determined that there was no power to do this under the Criminal Procedure Rules, but the court described Section 34 and its related provisions as, ""matters of some importance in showing how a case management scheme requiring defence witness disclosure might properly and efficiently operate"." We endorse those sentiments of approval. We agree with the court that Section 34 forms the basis for a sound witness disclosure scheme and remain convinced of its case management advantages. This code of practice has been widely consulted on and carefully prepared. I commend it to the House.