Disclosure plans provoke anger

SENIOR criminal lawyers are attacking the Home Secretary's plans to force disclosure on to the defence and limit prosecution disclosure as an “erosion of a fundamental principal of English law”.

The plans treat the criminal justice system as a “political football” and are merely a response to police pressure, they say.

Richard Ferguson QC, chair of the Criminal Bar Association, says: “My immediate reaction is that this is part of a continuing tendency by this Government to restrict and undermine the rights of the individual.

“Obliging the defence to disclose their case could involve serious consequences from the point of view of fairness of the trial.”

He adds: “What seems to be happening is that the criminal justice system is becoming a political football, kicked by players who are not conversant with the game.”

Howard's plans will aim to: limit the prosecution's duty of first-stage disclosure; provide a framework for defence disclosure to narrow down the issues in debate; require the prosecution to disclose further material in response to disclosure by the defence; and give better protection for sensitive material, particularly where it is not deemed relevant.

Graham White, chair of the Law Society's criminal law committee, calls the plans a “worrying development”.

White says disclosure obligation on the defence “goes against the fundamental principle of English law that the prosecution brings the evidence to prove its case. It is not for the defence to provide evidence that the prosecution might find useful.”

The society has told the Royal Commission on Criminal Justice that disclosure of general defence issues may be helpful, “but we don't believe it's right to go beyond that,” says White.

Geoffrey Robertson QC, of Doughty Street Chambers, says shifting disclosure to the defence will create “a lawyers' picnic”. But he adds: “The likelihood is that there might be more miscarriages of justice.”

Robertson says that pre-trial disclosure hearings will become “longer than the trial itself”, with disclosure issues going to the House of Lords and costs spiralling as a result.

“It seems to me that it would be counter productive and produce a real possibility of unfairness,” says Robertson.

He cites recent cases such as Matrix Churchill, Judith Ward and the Taylor sisters as examples of trials where miscarriages occurred due to the lack of disclosure by the prosecution.