The Minister of State, Ministry of Justice (Maria Eagle): I beg to move,

Mr. Pope—or should I say, Chair—the order will 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 statutory requirements. It will enable us to bring section 34 of the Criminal Justice Act 2003 into force, and we intend to do so on the same day as introducing the code.

Section 34 extends the accused’s existing requirement to disclose alibi witnesses before a trial in Crown courts and, in some cases, in magistrates courts, to defence witnesses generally in all proceedings. It will strengthen the court’s case management powers and stimulate a more effective progression of criminal proceedings—that is its overriding purpose. It will enable police to carry out criminal record checks at an earlier stage and assist the prosecution to prepare more expeditiously any bad character applications that may be required before the trial.

During the parliamentary passage of the provisions, some concerns were expressed that the new disclosure requirement might enable the police to apply undue pressure on defence witnesses. Such concerns are, we believe, overstated. The police will often be aware of the existence of a witness anyway, merely as a natural consequence of their ordinary investigative procedures—that has always been the case. However, the Government take the view that it is important to allay even the slightest possible perception of a risk of police impropriety under the new provisions. That is why we have made provision for the current code of practice, which sets out clearly the procedure expected of the police and other investigators in arranging any interviews with the disclosed witnesses. We anticipate that in practice, such interviews will be rare.

Turning to the detail of the code, the fundamental point is that the whole process is entirely voluntary on the witness’s part. Thus, while one could always suggest further areas in which greater detail might be required, or a more prescriptive approach adopted, we believe that the code now goes into as much detail as necessary, especially given that the witness’s attendance is voluntary and they can walk away from the interview at any time. The code has been subject to extensive consultation.

The case for the new witness disclosure requirement and hence the code remains strong. In the case of R v. Warley magistrates, a magistrates court attempted to use criminal procedure rules to obtain advanced disclosure of defence witness details to aid case management along the lines that the statutory provision will require. The High Court determined that there was no power to do so under the rules, but it pointed to section 34 and its related provisions as

We agree that section 34 forms a basis for a sound witness disclosure scheme. We are convinced of its case management advantages and therefore want to bring it into force. The code of practice has been widely consulted on and carefully prepared, and I commend it to the Committee.

Mr. Henry Bellingham (North-West Norfolk) (Con): It is a pleasure to serve under your chairmanship, Mr. Pope. I would like to declare my interest as a former practising barrister.

The 1996 Act, which I remember going through because I was in the House at that juncture—a few weeks before losing my seat in the May 1997 election—is an important piece of legislation. For the first time, lawyers of the accused had to give advance notification to the prosecution of any witnesses they were going to call in aid of mounting an alibi defence. There were no procedures for interviews of those witnesses, but the names, addresses and details had to be given to the prosecution. Section 34 of the 2003 Act extends that provision to witnesses in general. The idea is to remove the possibility of an ambushed defence. That did not happen often, but I remember it happening when I was defending an infamous arsonist. We suddenly discovered new witnesses, and that threw the prosecution into disarray and the case had to be adjourned. Character checks and everything else had to be undergone. The fact that such action is not conducive to the smooth administration of justice is why Conservative Members support the order.

The Act was put on the statute book in late 2003, but it has taken seven years for the measure to be commenced and the code of practice put in place. I accept that there had to be consultation on the code of practice and that several issues arose from that, but will the Minister explain why matters have taken so long? She rightly pointed out that, while the lawyers for the accused—the defendant—have to give full details of the witnesses, the likelihood of an interview by the prosecution is not great. She said that it would happen only on rare occasions. Will she say how rare those occasions will be? Under what circumstances will the prosecution wish to interview the witnesses?

It is important to have a code of practice to make sure everything is done correctly, and it is vital that everyone knows that the whole framework is based on the voluntary principle, but will the Minister elaborate a little on the procedure? Does she consider that it might have been better for the code of practice to have been secured in the Act itself, a point that was argued at the time? However, we welcome the measure. We feel strongly that justice has to be fair and has to be seen to be fair. It also needs to be efficient, and the order will certainly help in that direction.

Mr. Brian Jenkins (Tamworth) (Lab): It is always a pleasure to serve under your chairmanship, Mr. Pope. I am sure that you will guide us in the right direction. When dealing with witnesses or defendants, we examine the definitions involved, and I am concerned about mentally vulnerable individuals. I have no problem with a relative or guardian being in attendance when such people are interviewed, or someone experienced in dealing with the mentally vulnerable.

My difficulty is with the third definition in the code of practice, under paragraph 2(b)(iii). Failing a guardian, parent or experienced person being present at the interview, it has to be

However, the young person might have brought along as “the appropriate person” a person with whom he became friends in the unit for vulnerable people that they both attended. Does the young person have to know the “appropriate person”? Will the Minister explain who can be classified as a responsible person so that an interview with a mentally vulnerable individual may take place?

Maria Eagle: I thank those who have spoken in the debate. I shall do my best to respond to the issues they raised. The memory of the hon. Member for North-West Norfolk about such matters goes back further than mine, and that is saying something. He was in the House when the original measure was passed in 1996. As a jobbing barrister, he also has experience of the problems such matters can cause in court. He referred to an ambushed defence, and was right in saying that the order is aimed at dealing with such problems. I am grateful for the support that he expressed on behalf of Opposition Members.

The hon. Gentleman asked about the reason for the delay. I accept that there has been a delay in bringing forward the order, and that is regrettable. Obviously, the fact that we believe it will be used relatively rarely in respect of interviewing witnesses means that we hope it will not be too much of a problem for the courts, the police and others who have to deal with criminal cases, whether in a magistrates court or a Crown court.

We had done the consultation and dealt with the issues that arose out of it, but were then sidetracked following the Davis case, which hon. Members might recall. That meant we suddenly had to legislate from scratch in a very short period of time to put witness anonymity provisions back on to the statute book, which took away the people in my Department who were actually doing the work. When something gets put to the top of the list of work that needs to be completed, something else moves down it, which this provision did. We are now back to it, and hopefully we will be able to deal with it today, before the House is dissolved at the end of this Parliament. Obviously, the Warley judgment and the judicial comments that were made gave us an extra reason to get a move on, because they emphasised that there was an issue that the courts would like us to deal with. So, that is the explanation for the delay.

The hon. Gentleman asked under what circumstances the provisions would be used. He knows that it would in be rare circumstances. The provisions are intended to ensure that case management can work. I do not wish to rehearse every circumstance in which the police might choose to use the code of practice to interview potential witnesses identified by the accused, but the hon. Gentleman will have an idea of the kind of situation in which it might happen.

Let me emphasise that the interviews, if the police seek to carry them out, will be voluntary, which I hope deals with the point made by my hon. Friend the Member for Tamworth. They will not be compulsory. The witness will not have to agree to be interviewed and can stand up and walk out at any moment, so that is an extra protection if that person is feeling vulnerable, or is vulnerable.

As for my hon. Friend’s question about who a responsible person is, it is as per the Police and Criminal Evidence Act 1984. It will be up to the police to decide whether they have met the requirements of the code and whether the individual with the interviewee is a responsible person. The code sets out an extensive list and I guess that the police will err on the side of caution. If there is any doubt, they will perhaps not continue the interview or will suggest that someone who more closely fits the definition be present with the individual who is being interviewed.

Finally, the hon. Member for North-West Norfolk asked why the code of practice was not in the original Act. Having prepared for the order some years after the passage of the Act, I wondered myself whether that might not have been a good idea. In general, it is a bad idea to have codes of practice in primary legislation, simply because it means that they cannot easily be changed and they clutter up the provisions that are the main import of a Bill. I think it is generally very bad practice. One suspects that that is why the code was not in the original Act. It has also been possible to change the code during the consultations on the code of practice and respond to the points made by consultees, which one could not do if it had been in the Act. I hope that that satisfies members of the Committee.