All right, I said I’d held Sir Ian’s comments on the Today programme on Christmas Eve for treatment. What he did this time was to complain at length about the extra paperwork a cop has to complete after making an arrest. He reckons it’s increased by a factor of three since his wild youth. But I’m not arguing about that.
He claims it’s all down to stricter requirements on the prosecution to disclose unused evidentiary material to the defence. But what concerns me is that he proceeded to blame this on the Regulation of Investigatory Powers Act. RIPA is the legislation, much criticised itself, that sets the conditions under which the police can spy on you – phone taps, surveillance, that sort of thing.
The duty on the prosecution to hand over all the evidence the police collect is, in my humble opinion, entirely right (why, if they find information that suggests you didn’t do it, should they be allowed to keep it a secret?). But it ain’t RIPA that determines it. It’s the Criminal Investigation and Procedure Act, 1996. Not just that, but it’s also a pre-existing principle of Common Law (see the Crown Prosecution Service legal guidance, here).
What I would like to know is whether he simply got it wrong, or whether this was a wilful misrepresentation. I have absolutely no doubt he’d love to get rid of the provisions of RIPA that require him to get authorisation from the Surveillance Commissioner to do various forms of spying (not that this gentleman has ever refused) – it would fit near-perfectly with the pattern of behaviour he has shown over the past few years, and a pattern of behaviour is admissible evidence these days. If Sir Ian had checked the CPS guide, he would have noticed that, in fact, RIPA actually limits the scope of advance disclosure:
There is no duty to disclose either at Common Law or under CPIA:-
* material for which a claim of public interest immunity is upheld by the court
* material which falls under statutory exceptions: section 2 Interception of Communication Act 1985, section 17 Regulation of Investigatory Powers Act 2000.
* material which attracts Legal Professional Privilege;
* material which is detrimental to the credibility of someone who might be called as a defence witness..