Part of the debate – in the Senedd at 3:58 pm on 9 January 2018.
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?