Item 4 on our agenda this afternoon is the statement by the Counsel General on the Welsh Government prosecution code. I call the Counsel General, Jeremy Miles, to introduce the statement.

Thank you, Deputy Presiding Officer. The Welsh Government holds a number of prosecution responsibilities in connection with its functions. These prosecution responsibilities principally relate to animal welfare, food production and fisheries. It is in the interests of good government that where laws create regulatory obligations and related offences, they are appropriately enforced, and it will be of no surprise to Members, therefore, that the Welsh Government takes the enforcement of these matters very seriously.

Enforcement action that the Welsh Government has taken in relation to animal welfare and food production has resulted in prosecutions. Most recently, for example, a prosecution was brought in the Counsel General’s name for a breach of the EC egg marketing regulations and fraud. I am pleased to say that this prosecution resulted in a conviction, a fine, and a proceeds of crime order. This case, and others like it, serves as a reminder that when illegal action—in this case, within the Welsh egg industry—is uncovered, offenders should be in no doubt that the Welsh Government will act to ensure that the law is upheld.

In relation to fisheries, marine enforcement officers acting on behalf of the Welsh Ministers have investigated numerous infringements of fisheries laws in Welsh waters, leading to a number of successful prosecutions. These prosecutions protect the integrity and sustainability of this important sector. However, our prosecution responsibilities do not end there. We also have prosecution responsibilities in relation to regulated activity in the fields of social care, childcare and independent healthcare. Prosecutions may therefore be brought against persons who are registered providers in one of those fields for breaching regulatory requirements. Equally, prosecutions may be brought against persons who carry on a regulated activity without being registered. 

The Welsh Government is committed to fair and effective prosecution as a way of maintaining law and order, protecting individuals, the public and our resources, and ensuring that we all live in a safe and just society. A decision to prosecute or even to recommend a caution is a very serious step that affects not only the suspect in a case, but all those involved, in particular victims and witnesses. It is of paramount importance that we maintain public confidence when making decisions in relation to prosecutions and a major part of this is explaining how we make our decisions and the principles we apply when making those decisions. All prosecution decisions must be taken fairly, impartially and with integrity. I am therefore delighted to announce that today I have issued the Welsh Government prosecution code.

As Counsel General, I am generally responsible for prosecution decisions in the Welsh Government, though some prosecution decisions are taken in the name of the Welsh Ministers under statute. In each and every case, I need to consider whether the case is suitable for prosecuting. This has, up until now, been done by reference to the Crown Prosecution Service code for crown prosecutors. However, from today all Welsh Government prosecution decisions will be made by reference to the Welsh Government prosecution code. The Welsh Government code is based on the existing CPS code but has been adapted to take Welsh Government prosecution functions into account.

The CPS code was developed primarily for use in relation to mainstream criminal offences. It therefore takes into account the type of prosecutions that are commenced by the CPS and the police. So, it is inevitable that there are parts of the CPS code that do not apply to the Welsh Government. For example, the CPS code contains a threshold test that applies to custody cases. In light of this, and coupled with the fact that the Welsh Government’s prosecution functions continue to grow, it is only appropriate for the Welsh Government to have its own prosecution code. This specifically tailored code will ensure that fair and consistent decisions about prosecutions are made by the Welsh Government.

The new code sets out my general power to commence prosecutions under the Government of Wales Act 2006. Further, the code contains the prosecution test, which will be applied to all prosecution cases. This test has two separate stages: firstly, the sufficient evidence test, and secondly, the public interest stage. The sufficient evidence stage requires the prosecutor to be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect for each offence. The public interest stage requires prosecutors to go on and consider whether a prosecution is required in the public interest.

The code sets out a number of specific factors for the prosecutor to consider when deciding on the public interest, which vary depending on the context of the prosecution. For example, in the context of an environmental prosecution, a prosecutor will need to consider the impact that the offence may have on the environment. The greater the impact of the offending on the environment, the more likely it is that a prosecution is required. And in the context of a social care prosecution, a prosecutor will need to consider whether there is an element of danger to the health or safety of the public.

Before this code was issued, my predecessor and colleague Mick Antoniw launched a public consultation on a draft code in order to give stakeholders and members of the public the opportunity to comment and provide their views. I would like to take this opportunity to thank all those who responded to that consultation. A number of valuable comments were received and I can confirm that amendments were made to the draft code as a result of those comments. In particular, I would like to thank the Constitutional and Legislative Affairs Committee for their comments on points of clarity. The code has benefited from the committee's input and I hope the committee will agree that the final code is clearer as a result. I would also like to thank the Crown Prosecution Service, finally, for their close engagement with Welsh Government officials on the development of the code.

The Welsh Government's objective throughout has been to develop a Welsh Government prosecution code that is clear, accessible and fit for purpose, and the input of all stakeholders has been valuable in developing a code that would give a clear basis for Welsh Government prosecutions in future as we continue to enforce the laws for which we are responsible.

Thank you. David Melding.

Thank you, Deputy Presiding Officer. I'll make a short intervention, but I'd give one principal response, really, and that's: what was the tenor of the consultation responses overall? As the Counsel General has said, last May there was a draft code published for consultation. As far as I'm aware, the consultation responses have not been published. I do apologise if this is my IT failure, but I've not been able to get hold of them, and I don't think an analysis has been made available to us of the responses. I do think it would be quite useful, especially as you've said that the code has in fact been amended in light of these responses. However, independently I have seen the RSPCA's response to the consultation and it did have concerns about the prosecution test, which, as you said, was key to the consultation in that it narrows the application of the Welsh Government code compared to the CPS code, which is obviously a point that would need careful thought and either reassurance or rebuttal from your point of view.

Finally, I would like to ask whether there's any assessment of the capacity of the Welsh Government to undertake this task and effectively implement the code, given that we will have more Welsh law, presumably, it's getting more distinct, and the duties of prosecution are likely to grow. I certainly agree with you that we need fair and effective implementation of law, otherwise we will not be well governed, so that really does go to the heart of this. In doing that, I'm very mindful that the human rights issues involved when people are confronted with law-breaking and gathering evidence and the like need to be considered very, very carefully as, obviously, they are at the moment in terms of what the Crown Prosecution Service uses.

Thank you. In relation to the publication of consultation responses, they have in fact been published, so I can make sure that they should have been emailed again today, but I'll make sure that the Member has a copy of that. He's right to say that there were a number of points raised in relation to the scope, as it were. Stakeholders wanted further clarity on who the code applies to, for example, and therefore there have been amendments to make it specifically clear that it relates to Welsh Government functions only as opposed to third-party bodies who may have their own prosecution functions.

You mentioned the prosecution test in particular, and, again, various stakeholders commented on the public interest stage and had some specific suggestions to make about amendments to that, and several of those have been taken into account.

You asked about the question of the impact of the code on capacity generally to pursue some of the prosecutions. You may be aware that the Welsh Government has previously been applying the CPS prosecution code, which sets out its own stages, so what this represents is a sort of evaluation of that that is particular to the Welsh Government. Obviously, decisions in relation to prosecutions are taken on the facts of each individual prosecution, and the volume of prosecutions in different areas varies, and of course varies over time. It is part of the public interest calculation or analysis that relates to proportionality of decisions taken to prosecute, and one of the factors there is cost, although you wouldn't make a decision based simply on that.

On the question of capacity more generally, other devolved administrations have separate prosecution agencies, of course, and you might regard that in the long term as a natural part of the devolution journey, closely related to the devolution of justice responsibilities. Those agencies exist in Scotland and in Northern Ireland and, I dare say, over time, as our prosecution responsibilities grow, that will be part of the considerations that we might wish to have here in Wales as well.

May I welcome the Counsel General’s statement this afternoon? May I also welcome the intention and also welcome the appearance of the Welsh Government prosecution code, because this builds on gaining legislative powers here in Wales? Of course, the Counsel General will be too young to remember the Acts of Hywel Dda, over 1,000 years ago, but we’ve had these powers to make legislation in Wales in the past and to prosecute people, so I see this as a first step in regaining that legislative ground. That is why you will get a warm welcome from this party in terms of your intentions in this area.

There are challenges, of course, because, as you’ve already mentioned, and it’s well known to everyone, criminal justice is currently not devolved, but the Government here does have powers to prosecute people who transgress in those devolved areas—as you’ve mentioned: fisheries, animal welfare, food, social care and children. Of course, there will be a challenge when the offence can be seen as being more grave than the powers that we have in those devolved areas. I’d just like to learn more about the process there, but I do welcome the intention to have this clear code, which will be accessible and proportionate for the work that needs to be done. Because it’s very important—although we only have powers to prosecute people who offend in devolved areas at the moment, those areas are hugely important. Safeguarding our natural resources, for example, is crucially important. It’s important that you, as Counsel General, should have the power to actually tackle that problem.

I follow on from David Melding’s question on human rights legislation in that same manner of thinking about how relatively serious issues in devolved areas are going to be dealt with when you have two different codes, as you have already mentioned—your code and the CPS code. There is challenge there. I would support you in doing the very best that you can and in ensuring that all boundaries are pushed to their full extent to ensure that your prosecution code as a Government is sufficiently powerful to ensure that we can do what it is expected to do. Because at the end of the day, what we want to see here, as we step forward and see further devolution, is a Welsh prosecution service and also a Welsh legal jurisdiction that would be separate to the England and Wales jurisdiction, as we currently have it.

In the Constitutional and Legislative Affairs Committee, we have been scrutinising legislation in this place, which is now naturally bilingual, and there is a challenge there too in terms of how we develop law in the future and how we prosecute people in these devolved areas in moving forward. I also saw one of the phrases in the consultation asking, ‘Well, what of the Welsh language?’ and ‘Is it possible to prosecute through the medium of Welsh?’, and I would hope that you would be able to confirm that it is possible that you could prosecute individuals in these areas through the medium of the Welsh language.

Of course, in concluding, we do need to ensure that there is consistency in legislation. We have heard talk in this Chamber in terms of ensuring that new legislation runs in accordance with the previous legislation and brings bilingualism into it, so that eventually we can simplify all legal codes as we move forward. So, could I ask you to explain how much broader work is ongoing in terms of the need to ensure that your Government’s prosecution code will be successful in this regard?

The fundamental point, of course, is that you have mentioned what’s happening in Scotland and Northern Ireland and so on, and with all the talk of prosecution and legislation, we on these benches are strong believers in the need to devolve these issues in their entirety. It would, therefore, simplify the process; you wouldn’t have this wall between your code and the CPS code. It would be far simpler if policing were devolved to this place as it is in Scotland and Northern Ireland and London and Manchester, even. And if the courts and the probation service and the prisons were all devolved to this place, it would make your work in developing this prosecution code far simpler and far more robust. Would you agree that the way forward in terms of working consistently to devolve further legislative powers to this place is to do that? Thank you very much.

Thank you to the Member for the question. On the last matters that he raised in his question, as he’ll know, the First Minister has established the Thomas commission, which will be looking into a lot of the questions related to the points raised by the Member on the journey of the devolution of justice and the institutions related to that, including the police. I wish the commission well in its work and I hope that there will be clarity and an analysis and that the work of the commission will be able to take that journey further ahead.

He also talked about the question of accessibility of the law in general and the justice system. He’ll know the work of the Law Commission, which has provided a report on that in particular, and the Government has accepted several of those recommendations. The fact that the Government is undertaking work on that is known to him as well.

He asked for an example of how the decisions to prosecute are being taken at present. Using the example of fisheries, officials at grass-roots level will prepare a file for Ministers to consider. That will come to me with their recommendation to bring forward a case and I’ll assess that case to ensure that the tests are met, and I’ve already talked about that in the statement, and I’ll be deciding, on the basis of the new code, what the right decision is to be taken. That’s how it happens on the whole.

You talked about the relationship between this code and the work of the CPS in general. I’ll restate that: this code applies only to the Government in Wales's decision to prosecute. This code is relevant to that alone. The CPS code is independent, but the content of that code is very similar to the Welsh Government’s new code, with the important changes that I’ve already mentioned. From time to time, the Welsh Government can pass something on to the police and the CPS, and in those circumstances, it will be under the CPS code that those matters will be taken forward. It’s also possible for the CPS to take over prosecution by the Welsh Government or a Government in any part of the United Kingdom. Again, in those circumstances, it will be the CPS code that will apply.

Thank you for the code being published today. I'm afraid I haven't seen it so some of the questions I ask may have already been answered, so apologies if that's the case. 

The first is whether the code as published makes it clear where it diverges from the present CPS code so that we can actually see pretty easily where the differences are. The reason I ask that question is that when the proposition of additional laws for Wales was discussed in the last Assembly, particularly in the Constitutional and Legislative Affairs Committee, we had clear reassurances from the First Minister at that time that the principles of law, if I can put it like that, would not diverge between England and Wales. So, for example, what constitutes a criminal law isn't different in the two potential jurisdictions; what constitutes a contract isn't different. So, it's not about specific offences, it's about those underlying—you know, the stuff we learn in law school, basically. So, I'm just looking for a bit of reassurance here that in putting together a code that is about the application of law and the administration of law, there's nothing in there that might inadvertently trip over that line that would result in a set of facts being treated very differently on either side of the border for a criminal offence, because I'd be not expecting there to be a difference in outcome when it comes to criminal law where the facts are the same on either side of the border.

And the second is: what consideration have you given to crimes of strict liability or crimes where the burden of proof is reversed? Usually, the burden of proof is reversed in those offences that are Wales-only. The example that springs to mind is in the Historic Environment (Wales) Act 2016—I'm not going to rehearse the whole thing here—but there is certainly an offence in that Act where the burden of proof is reversed, and when the question of human rights was discussed, the Cabinet Secretary at the time understood that the right to a fair trial test had been met, but I would've argued that in England and Wales law that is evidenced through the principle of innocent until proven guilty. So, again, I'm wondering: would you be applying this code to Wales-only legislation differently from law that applies in England and Wales for an offence that happens to occur in Wales?

You asked for clarification of the differences with the CPS code in general terms. There are a number of key differences: they're mainly in relation to the different nature of the offences the Welsh Government has prosecution responsibilities in relation to. So, one of the main differences is that, unlike the CPS code, the Welsh Government prosecution code doesn't include reference to a threshold test, for example, which is, as you may know, where there's a custodial offence and where the suspect represents a substantial bail risk. That doesn't apply to the offences that the Welsh Government generally has responsibilities for prosecuting. Therefore, that, for example, hasn't been included.

The CPS code has been adapted to reflect the prosecution functions more specifically, and we have a summary of the Counsel General's prosecution powers set out in the code, which obviously does not appear in the CPS code for obvious reasons. I mentioned in my earlier answer the question of the public interest test, and it gives specific examples of how the public interest test might operate within the context of offences that the Welsh Government would prosecute. And there are also some key changes in relation to venue-for-trial questions and in relation to out-of-court disposals. Again, the rules are different for the kinds of offences that the Welsh Government would prosecute than for the general CPS code. The CPS code applies, of course, across the general criminal law, if you like, which is a different operating context to that which the Welsh Government's Welsh prosecuting code applies.

On the question of the burden of proof and how one assesses whether to proceed in individual offences where that is the case: again, as the code sets out, it sets out the sufficient evidence test, effectively, which includes within it the requirement to anticipate the arguments on both sides of the case. And that will involve evaluations of the admissibility of evidence, the reliability of evidence and the credibility, and that applies to the evidence in the round, if you like.

You raised the question of human rights legislation, and indeed other Members have raised that. The code makes it clear that prosecutors must apply the provisions of the European convention on human rights in accordance with the Human Rights Act 1998, and it's been made explicitly clear in the code that prosecutors must have due regard to the requirements of the United Nations Convention on the Rights of the Child, which of course has been given further effect in Wales in particular.

Thank you, Counsel General.