Will fair pay give a fair criminal trial?

As prosecutors look forward to more pay, John Cooper says they already have too much power. John Cooper is a barrister at 3 Gray’s Inn Square.

So prosecutors are going to be paid the same as defence barristers. Whether this means defence barristers are to take a pay cut to get down to the level of the Crown or the Crown elevated is yet to be seen, but few people will begrudge the prosecution equal payment, when of recent legislation they have to work harder.

After all, in recent times they have not only been making decisions on the tactics of the prosecution case but have also been encouraged to pontificate upon what material the defence should have which may assist its case.

The rules relating to disclosure are in the vanguard of the battle between the competing interests of the prosecution and defence. The prosecution now considers a defence case statement, drafted by the defendant’s advisers and approved by the defendant. Documents may be given to the defence depending on what the Crown considers relevant.

Prior to this change in the law, all material in the hands of the Crown would be made available to a defendant’s team and it would be for that team to decide its relevance.

It is not unknown to those defending in the Criminal Courts for a prosecutor to disclose to the defence documentation during trial which it had in its possession since charge. The excuse given is that only after hearing part of the case did the Crown see its relevance. It does not take a genius to work out that the defence would have been in a better position to judge its relevance far earlier on.

Matters become even more concerning when the Crown destroys evidence without giving the defence the chance to examine it.

The law’s development in this area was significantly influenced by authorities such as R v Beckford (1996). The car, involved in causing a death while its driver was drunk, was destroyed due to an oversight by the police before the defendant was charged. An abuse of process application was made to stay the proceedings because the destruction of the car affected the fairness of the trial as the defendant’s experts could not examine it to establish a cause of the collision. The Court of Appeal emphasised that each case was to be considered on its own facts, but that in certain circumstances it would stay proceedings where the defendant could not receive a fair trial.

In R v Gajree the Court of Appeal encapsulated the burden upon the Crown when Justice Sachs concluded: “The tests laid down in the authorities can be simply expressed by asking the question: was it possible for the appellant, at the time he stood trial, to obtain a fair trial?”

English criminal law seems reluctant to provide the ultimate sanction of staying proceedings because of poor disclosure, but our colleagues in Europe may force its hand.

Article 6 of the European Convention on Human Rights states everyone is entitled to a fair and public hearing. By Article 6(3)(b) anyone charged with a criminal offence is entitled to have adequate time and facilities for the preparation of their defence. Article 6 involves observance of the principle of equality of arms under which the defendant in criminal proceedings must have a reasonable opportunity of presenting his case to the court under conditions which do not place him at a substantial disadvantage to his opponent.

If evidence is destroyed by the police or other Crown authorities there can be no equality.

The advantages of the prosecution over the defence can also be seen in other ways. The Court of Appeal has made the inadvertent waiver of privilege between solicitor and defendant more likely by decreeing that if a defendant tells a jury he made no comment at a police interview on his solicitor’s advice, he can be asked by the Crown about everything else that passed between him and his legal adviser.

There is a battle developing between prosecution and defence and it is being won by the Crown: as the defence’s privilege is eroded, the Crown’s is strengthened. As the defendant’s right to silence is undermined, the Crown’s right not to answer questions ruled inappropriate at public interest immunity hearings is growing. More frequently it is the Crown that decides what disclosure the defence may have and, even when it wilfully destroys materials, the defendant can be compelled to fight with one arm tied behind its back.

The prosecution should be paid more, after all they have a lot of cards to deal.