Commentary on Sections Part 5: Disclosure Section 40:  Code of practice for police interviews of witnesses notified by accused
220.Section 40 should be read in conjunction with section 34. It inserts a new section 21A into the 1996 Act. New section 21A provides for a code of practice, which will apply where the police, or non-police investigators, interview a person whose details have been disclosed under new section 6A(2) or 6C of the 1996 Act.
221.Subsection (1) of new section 21A requires the code to be prepared by the Secretary of State.
222.Subsection (2) specifies a number of matters on which the code must provide guidance, for example, the attendance of the interviewee's solicitor at such an interview. The list is not exclusive.
223.Subsection (3) requires police officers and non-police investigators conducing such interviews to have regard to the code of practice.
224.Subsection (4) requires the Secretary of State to consult the persons specified in the subsection when the code is being prepared. The persons to be consulted vary, depending on whether the code is to apply to England and Wales or Northern Ireland. The lists are not exclusive, in that the Secretary of State may consult anybody else, if he thinks fit.
225.Subsection (5) provides for the code to be brought into operation by the Secretary of State by order.
226.Subsection (6) enables the Secretary of State to revise the code from time to time and applies the same consultation requirement, and provision for it to enter into operation by order, to the revised as to the initial code.
227.Subsections (7) to (10) set out the Parliamentary procedures that will apply when an order is made to bring a code or revised code into operation. Under subsection (10), any consultation requirements must have been discharged before an order is made.
228.Subsection (11) makes it clear that a failure to have regard to the code cannot, in itself, render the person responsible for the failure liable to criminal or civil proceedings.
229.Subsection (12) makes the code admissible in evidence in all criminal and civil proceedings and subsection (13) requires all courts to take the code, or a failure to have regard to it, into account where the code or the failure appears to be relevant to a questions before them in any criminal or civil proceedings.