The work of the Criminal Cases Review Commission - Justice Committee Contents

Supplementary memorandum submitted by the Ministry of Justice





  We believe there is a strong argument, in cases of this kind, for introducing a general requirement to record police interviews of complainants and other significant witnesses on video or audio tape. Where a video-recording is impracticable, we recommend that the interview be recorded on audio tape, as a mandatory requirement (paragraph 45).


  We recommend, that the Home Office issues a code of practice for the audio and visual recording of police interviews with complainants and other significant witnesses in cases of historical child abuse (paragraph 47).

  The Government was not persuaded outright but undertook to discuss the issues raised with ACPO.

Q  What were the outcomes of promised discussions with ACPO?


  The Government recognises the importance of ensuring that investigations into historic child sex abuse cases are conducted in a transparent manner and is glad to report that the recording of police interviews with significant witnesses in child abuse cases is now recommended best police practice.

  Under Section 4.5 of the 2009 Guidance on Investigating Complex Child Abuse the Senior Investigating Officer is advised to ensure that significant witnesses are spoken to on video or tape and that the statement taking process is recorded. The interviewing officer, based on this initial interview should prepare a written statement. This officer will go through it with the witness (again on video or tape) who will be invited to make any alterations before signing it. The statement will be used in court—the tape/video record ensures the integrity of the statement taking process so refuting any suggestions of coaching or prompting of the witness. Treating all significant witnesses in the enquiry in this way may prevent any suggestions that the investigating officer is coaching a witness. All subsequent contact with the witness should also be recorded in a dedicated witness liaison log.

  In addition, current police practice is to audio or video record statements made by significant witnesses in indictable only offences. Guidance on the recording of witness interviews with significant witnesses in general is contained in the second edition of the Achieving Best Evidence in Criminal Proceedings (ABE) guidance issued by the Office for Criminal Justice Reform in 2007.

  More generally, the Government recognises the value of recording witness statements and has legislated to provide for such statements to be admitted as evidence in chief in certain cases.

  Section 27 of the Youth Justice and Criminal Evidence Act ("the Act") 1999, enables vulnerable and intimidated witnesses to have video-recorded statements played in court as their evidence-in-chief, subject to the approval of the court. Considerable resources are involved in providing verbatim transcripts of the video recording which the courts require for contested trials. The practice of recording witness statements also has substantial resource implications for the police including the costs of equipment and training. Priority is therefore being given to the video recording of all child witnesses and vulnerable adults and also complainants in sex offence cases in the Crown Court. Complainants in sexual offences are automatically eligible for special measures under the 1999 Act, including video recorded statements, unless they choose to opt out. Provisions in the Coroners and Justice Bill, currently before Parliament, will make video recorded statements by sex offence complainants automatically admissible as evidence unless the court determines that the use of the video will not maximise the quality of the complainant's evidence.

  Section 137 of the Criminal Justice Act 2003 provides that in certain specified circumstances video recorded statements of significant witnesses in indictable only and either way criminal offence cases may be played in court as their evidence-in-chief. This provision has not yet been implemented because we are giving priority to the video recording of statements made by vulnerable and intimidated witnesses.



  We note that failure to disclose evidence inconvenient to the prosecution case was a factor in many—if not most—proven miscarriages of justice and we express the hope that the recommendations made by these various studies are acted upon without delay. We look forward to hearing from the Home Office on this point (paragraph 72).

Q1  What steps were taken in the event and what evaluation of changes / reforms has been undertaken, with what findings?


  The Government continues to recognise the importance of effective prosecution disclosure of unused material to the defence. As indicated in the Government response to the Committee's report, amendments to the disclosure scheme were introduced by what became the Criminal Justice Act 2003, which received Royal Assent on 20 November 2003. The Act introduced a number of changes, including a new single prosecution disclosure test that requires the prosecution to disclose to the defence unused material that might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the defence. The disclosure provisions were implemented on 4 April 2005 and apply to investigations begun on or after that date.

  The implementation process involved a number of initiatives including:

    — the issue of a new code of practice under the Criminal Procedure and Investigations Act 1996 on the recording, retaining and revelation to the prosecutor of relevant material obtained in a criminal investigation;

    — a new edition of the Attorney General's guidelines on disclosure, and

    — a new Disclosure Manual replacing the former ACPO-CPS Joint Operational Instructions on the Disclosure of Unused Material (JOPI).

  National CPS training on the revised disclosure requirements began in April 2003. Training on disclosure is available on an ongoing basis.

  An important development in disclosure practice in recent years has been the Attorney General's initiative to require the prosecutors superintended by her to undertake strict compliance with the disclosure legislation. This approach is based on the prosecutor considering relevant unused material and applying the statutory disclosure tests rigorously, which has not always been the case. The approach requires a more hands-on approach by the prosecutor to unused material, to ensure that the police have revealed all relevant material and that cases where this appears not to be the case are challenged.

  Also important is the publication of the judiciary's "Disclosure: A Protocol for the Control and Management of Unused Material in the Crown Court", issued in February 2006. The Government greatly welcomed the protocol. The document underlines the judiciary's commitment to active judicial management of both prosecution and defence disclosure to ensure disclosure is used properly, and to prevent justice being obstructed.

  A further item that should be mentioned is the ACPO-CPS "Guidance Booklet for Experts" ("Disclosure: Experts' Evidence and Unused Material") issued in March 2006 and now part of the Disclosure Manual. The Guidance was developed in response to concerns that experts, as third parties to the disclosure process, were not subject to the same duty of full revelation to the prosecutor as the police.

  The operation of prosecution disclosure in practice has been evaluated recently in detail in the second HMCPSI thematic review of the duties of disclosure of unused material undertaken by the Crown Prosecution Service, issued in May 2008. The Committee is already aware of the first HMCPSI disclosure thematic, issued in 2000. The second report stressed that since the 2000 report, inspectors had noted incremental improvements in the prosecution's handling of disclosure. Nevertheless, there remained a variety of criticisms directed both at the structure of the regime and how disclosure was undertaken by the CPS in a number of cases. The latest report included a number of detailed recommendations which are being actioned.


  We welcome the proposal for a national protocol for the disclosure of third party material and hope to see its speedy delivery. In the longer term, we support Lord Justice Auld's recommendation for a new statutory scheme for third party disclosure, "to operate alongside and more consistently with the general provisions for disclosure of unused material". We again look forward to hearing what plans there are to implement Lord Justice Auld's recommendations on disclosure (paragraph 74).

Q2  Was a draft model protocol produced and what action has since been taken on LJ Auld's recommendations on disclosure?


  We can confirm that the CPS published the model protocol on the exchange of information in the investigation and prosecution in child abuse cases in October 2003.

  Sir Robin Auld's "Review of the Criminal Courts of England and Wales" recommended a consideration of a new statutory scheme for third party disclosure and an interdepartmental working group was established in late 2005 to take forward this recommendation. The objective of the review was to devise ways of improving the efficiency and effectiveness of criminal investigations, prosecutions, and investigations by the Criminal Cases Review Commission (CCRC) whilst ensuring that this was balanced with the interests of the third party and the subject of the data. A final report was agreed in late 2007 and the working group's findings are under consideration with a view to a possible public consultation exercise.



  Whilst we accept that the criminal justice system needs to be more sensitive to the needs of victims and witnesses, we are concerned that the proposed removal of safeguards for the defendant, set out in Justice for All, may further prejudice the defendant in historical child abuse trials. We are particularly concerned about the proposed relaxation of the rules of evidence, which may allow for greater admission of "similar fact" evidence. In our view, given the sensitive and difficult nature of investigating allegations of historical child abuse, there is a strong case for establishing special or additional safeguards for the exclusion of prejudicial evidence and/or severance of multiple abuse charges (paragraph 83).


  We, recommend that the law of similar fact evidence is reformed to require a "striking similarity" in historical child abuse cases. We suggest that the law of severance is also reformed, to introduce a presumption in favour of severance in cases where the similar allegations are inadmissible on a similar fact basis (paragraph 97).

Q3  The Government rejected these recommendations. Has there since been any change in policy in this area?


  As the Government explained in its response in April 2003 (Cm 5799), our approach is to enable juries and magistrates to hear the widest range of relevant evidence, but combined with the necessary safeguards to ensure that trials are fair. At the time of the Government response to the Committee's report legislation was before Parliament to reform the law on the admissibility of bad character evidence.

  Part 11 of the 2003 Criminal Justice Act came into force in late 2004, providing a wholly statutory framework for the consideration of bad character evidence and replacing the previous mixture of statutory and common law provisions. The legislation makes it easier to admit evidence of a defendant's bad character, while at the same time containing appropriate safeguards to ensure that a defendant's right to a fair trial is upheld. For example, bad character evidence is not automatically admissible and can only be admitted if it meets one of the following criteria:

    — It is relevant to an important matter at issue.

    — It is important explanatory evidence.

    — It has substantial probative value on an important matter at issue in the case.

    — Its admission is agreed between prosecution and defence.

    — Its admission occurs when the defendant has made an attack on another's character.

    — Its admission corrects a false impression given by the defendant.

    — Other reasons such as in the interests of justice.

  Furthermore, under Section 101 of the 2003 Act, the court also has an over-arching obligation to exclude evidence that would have such an adverse affect on the fairness of proceedings that it should be excluded.

  The Ministry of Justice commissioned research on the effect of the changes to the law on bad character that were introduced by the 2003 Act. The research report was published on 9 March 2009 and is available on The research tracked bad character applications received in six court centres over eight months in 2006, and key practitioners were also interviewed. Overall the study found that the new law has had a beneficial impact on criminal trials without fundamentally changing their nature.

  The Government has no present plans to amend the law on bad character evidence.



  We suggest that the statutory reporting restrictions, which preserve the anonymity of victims of sexual offences, are extended to persons accused of historical child abuse. We believe that the restrictions should operate to protect the accused until the date of conviction, with provision to lift the restrictions by court order. Although there is a case for extending this recommendation to all sexual offences, for which the victim is granted anonymity, this goes beyond our remit for this inquiry (paragraph 99).

Q4  What representations have been received on this matter since publication of the Government's reply, and whether there has been any change in policy?


  The Unit within the Office for Criminal Justice Reform that has responsibility for this policy subject has records which show that since 2003 they received a total of 81 letters where the sole subject of the correspondence was defendant anonymity in sex offence cases. These comprised 44 letters from members of Parliament and 37 from members of the public. Unfortunately, it is not possible to distinguish which of these letters referred to cases of historic child abuse or to identify those letters where this subject was raised in addition other matters. It is also not possible to identify correspondence relating to this subject that was allocated to other parts of the Department.

  We have also identified three Parliamentary Questions relating to defendant anonymity in historic child sexual abuse cases and seven questions about defendant anonymity in sexual abuse cases in general.

  There has been no change of Government policy on defendant anonymity. The Government supports the conduct of investigations into allegations of sex offences without publicity before charge but considers that this is best achieved through guidance. Guidance has been issued by the Association of Chief Police Officers and the Press Complaints Commission (PCC) and its impact was reviewed in 2006 by the Interdepartmental Ministerial Group on Sexual Offending. It was found that neither the police nor the PCC had received any complaints about breaches of those pieces of guidance.



  We are concerned that neither the internal police guidance, nor the Government guidance, on historical child abuse investigations, give any specific direction on the proper relationship between the police and personal injury solicitors. We recommend that the Home Office issues guidelines, which prescribe the elements of a "model relationship". We suggest that the Home Office act in consultation with the Association of Chief Police Officers to ensure consistency between the various guidance documents (paragraph 108).

Q5  What representations have been received on this matter—including on specific problems—since publication of the Government's reply, and whether there has been any change in policy?


  This falls within the Home Office area of responsibility and will be included in the Home Office memorandum to the Committee



  We recommend that the Criminal Injuries Compensation Authority conduct a review of its Scheme, with a view to ensuring that it is sufficiently user-friendly and attractive to victims of past institutional child abuse (paragraph 115).

Q6  What relevant reforms of the CICS have taken place since the Government's reply?


  Since 2003, a number of reforms have taken place both to the structure of the Criminal Injuries Compensation Authority, as well as organizational reform of the Authority. This includes revised guidance on those claiming in respect of injuries incurred as a result of physical or sexual abuse.


  In November 2008, the Criminal Injuries Compensation Scheme 2008 was introduced, replacing the 2001 Scheme. Amongst other things, the new Scheme changed some injury descriptions to reflect terminology from the Sexual Offenders Act 2003, inserted some new categories and made other minor changes to rectify inconsistencies. The Scheme operates within two legal jurisdictions (England and Wales, and Scotland) where terminology to describe offences differs, therefore a form of words has been used which will be recognised in either jurisdiction.


  A Major Incident Team (MIT) was set up as part of restructuring within the CICA. The aim to pay victims of major incidents promptly through the adaptation and enhancement of standard procedures.


  A Corporate Literature Review Project was set up to review all corporate literature and ensure it is fit for purpose. Some documents considered within the project are the guide, application forms and leaflets to stakeholders.

  A revised guide on abuse and the CICA was published on November 2008 and provides additional guidance to people who are applying on their own behalf, or on behalf of children, for injuries suffered as a result of physical or sexual abuse.


  A Review Project of the Service Level Agreement between England and Wales, and Scotland Police Forces was set up. The aims are to reach agreement on processes to deliver clear and consistent decisions to victims, efficient processing of cases and good relationships between all relevant parties.


  In 2006 a major reform programme was initiated by the Authority, which led to the introduction of an interim management team who reviewed the case working processes and implemented a number of changes before a new management team were appointed in 2007, who continued to progress with the reform. In July 2008 they introduced geographically based teams, which enabled consistency and therefore better relations with the same police forces within the area. At the same time it provided a new in-house telephone support service putting an end to its outsourced contract. The Authority also developed a new case working model which placed greater emphasis on applicant support placing more of its resource at the front end of the case working process to ensure that all calls are answered by fully trained staff.

March 2009

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2009
Prepared 16 June 2009