Stacking the odds against the defence

With the coming into force, on 1 April 1997, of the disclosure provisions of the Criminal Procedure and Investigations Act 1996, the prosecution's common law duty of disclosure, developed and expounded in a series of recent cases following the landmark decision in R v Ward (1993, 96 CAR), is henceforth abolished for all purposes other than in public interest immunity claims.

In a typically resonant judgment in R v Brown (W) (1995, 1 CAR), Steyn LJ stressed that it was for the court, not the prosecuting counsel, to decide on disputed questions as to disclosable materials as part of its duty to ensure a fair trial:

"In our adversarial system, in which the police and the prosecution control the investigatory process, an accused's right to fair disclosure is an inseparable part of the right to a fair trial."

Yet again, our constitution has shown itself to be no respecter of such rights, as the Act's principal effect is to limit the prosecution's obligations while at the same time introducing compulsory disclosure by the defence with potential penalties for default.

The prosecution's duty of "primary disclosure", in addition to material served in support of its case, is confined to that which "in the prosecutor's opinion, might undermine the case for the prosecution against the accused". Thus the Act reinstates the prosecutor as arbiter in his own cause while it does away with the now established common law criteria for disclosure: (i) possible relevance to an issue; or (ii) possibly raising a new issue; or (iii) giving a lead on evidence going to (i) or (ii) (see R v Keane (1994 99 CAR).

In cases before the crown court, even this duty does not arise until after committal (or its equivalent) and, once performed, triggers a statutory obligation on the accused, within 14 days, to furnish the court and the prosecutor with a written defence statement setting out the nature of the defence, the matters on which issue is taken with the prosecution and the reason why issue is taken in each case.

This obligation arises in all cases in the crown court, however trivial, despite the fact that the prosecution is under no corresponding duty to supply a case statement and whether or not the defence is seeking any further disclosure.

Where the defence is one of alibi, particulars must be provided, including the names and addresses of all the witnesses whom the accused believes can give evidence in support of the alibi, as well as any information in the accused's possession that might be of material assistance in finding any such witness whose name and address are unknown to the accused.

This requirement goes well beyond the pre-existing law, notably in that: (a) the giving of particulars of alibi is by way of compulsory disclosure, not as a precondition of calling such evidence, and (b) details of all possible witnesses known to the defence must be provided irrespective of any intention to call them. This is tantamount to a gift to the prosecution which owes nothing to perceived defects in past procedures.

Only after defence compliance with the above does the prosecution's "secondary" duty of disclosure arise. But this too is strictly circumscribed, being limited to material that might reasonably be expected to assist the accused's defence as disclosed. So the prosecution is at no stage obliged to disclose material which falls within the Keane criteria, but neither undermines the prosecution case nor goes to an issue raised by the defence.

An example of such non-disclosable material might be a lead on evidence of provocation in a murder case where the defence relies on alibi – the lead would not undermine the prosecution case, and the issue is not raised by the defence.

Capping it all, the jury will usually be permitted to draw an adverse inference against the accused, perhaps decisive, where he defaults in his obligations of disclosure in any one of a variety of specified ways, including late service of the defence statement, deviation from his statement at trial, setting out inconsistent defences (no parallel with civil pleading here!) or any shortcomings in disclosure as to alibi. No wonder the Law Society and the Bar Council opposed these provisions.

The ultimate irony of the Act is that, by virtue of the accompanying Code of Practice (albeit still in draft), the task of collating, recording and sifting material which is imposed upon investigators and the prosecutor is no less onerous than under the old system. The difference lies in barring the defence's right to inspect it.