ABSTRACT
The Attorney General’s guidelines The guidelines were issued in 1981. The Attorney General’s objective was no doubt to improve the existing practice of disclosure by the Crown. That was a laudable objective. But the Attorney General was not trying to make law, and it was certainly beyond his power to do so ... In fairness to the Attorney General at the time, and to his successors, it must be acknowledged that the guidelines were not issued on the basis that the guidelines established the law. But unfortunately some misunderstood the function of the guidelines. Surprisingly, this misunderstanding extended to the Royal Commission on Criminal Justice. The report (Cm 2263) states at p 91, n 22: ‘The guidelines, although not statutory, to all intents and purposes have the force of law.’ That is plainly wrong. The guidelines are mainly a set of instructions to Crown Prosecution Service lawyers and prosecuting counsel ... Judged simply as a set of instructions to prosecutors, the guidelines would be unobjectionable if they exactly matched the contours of the common law duty of non-disclosure. If they set higher standards of disclosure than the common law, that would equally be unobjectionable. But if the guidelines, judged by the standards of today, reduce the common law duties of the Crown and thus abridge the common law rights of a defendant, they must be pro tanto unlawful. That is not to say that the guidelines have not served a useful purpose in the past. They improved the consistency in decision-making of prosecutors and set minimum standards of fairness at a time when there was a conspicuous lack of clarity about the common law duty of disclosure. But today the guidelines do not conform to the requirements of the law of disclosure in a number of critically important respects. First, the judgment in Ward established that it is for the court, not prosecuting counsel, to decide on disputed questions as to disclosable materials and on any asserted legal ground to withhold production of relevant material ... [T]here is no hint in the guidelines of the primacy of the court in
deciding on issues of disclosure. On the contrary, paragraphs 7 to 9 of the guidelines indicate that it is for prosecuting counsel to determine doubtful cases and not for the judge. Paragraph 13 provides that only if the defendant is unrepresented should the judge ‘be consulted’ in a doubtful case. Ward (1993) is a landmark case precisely because it extended the rule of law, of which the courts must be the arbiter, to this important branch of law. Secondly, the guidelines are not an exhaustive statement of the Crown’s common law duty of disclosure: Ward (supra). To that extent, too, the guidelines are out of date. Thirdly, the guidelines were drafted before major developments in the field of public interest immunity. Again, in paragraph 6 the guidelines are cast in the form of a prosecutor’s discretion. That discretion applies when: ‘6(v) The statement is, to a greater or lesser extent, “sensitive” and for this reason it is not in the public interest to disclose it.’ Much of what is listed as ‘sensitive material’ is no doubt covered by public interest immunity. But not everything so listed is covered by public interest immunity. Thus paragraph 6(v)(g) lists as sensitive material the case where: ‘It contains details of private delicacy to the maker and/or might create risk of domestic strife.’ Such trivial grounds could not possibly support a legal objection to the production of documents which are relevant and may exculpate a defendant ... The concept of sensitivity simpliciter surely has no place in this particular corner of the law. Subject to statutory exceptions, such as section 9 of the Interception of Communications Act 1985, the focus should be on the question whether there is a legal objection to disclosure rooted in the preservation of the public interest as balanced against the interests of the defendant. These remarks about the Attorney General’s Guidelines are not intended to be exhaustive of divergences between the guidelines and the common law. However, they show that the value of the guidelines as a set of instructions to prosecutors has largely been eroded by major legal developments, and it is in the public interest that this reality should be squarely faced and addressed. Only in this way can progress be made in this important area of the law. The common law duty of disclosure It is to the common law that the criminal justice system must turn to provide the framework of the rules which govern disclosure by the Crown. It is, however, necessary to place the common law rules in their proper context. The objective of the criminal justice system is the control of crime, but in a civilised society that objective cannot be pursued in disregard of other values. That everybody who comes before our courts is entitled to a fair trial is axiomatic. Lord Wilberforce stated in Raymond v Honey (1983) that the right of every citizen to unimpeded access to a court is a basic right. Similarly, the right of every accused to a fair trial is a basic or fundamental right. That means that under our unwritten constitution those rights are regarded as deserving of special attention by the courts. However, in our adversarial system, in which the police and prosecution control the investigatory process, an accused’s right to fair disclosure is an inseparable part of his right to a fair trial. That is the framework in which the development of common law rules about disclosure by the Crown must be seen. The first question is to determine the extent of the Crown’s duty of disclosure. In Keane (1994), the Lord Chief Justice adopted the test suggested by Jowitt J in Melvin and Dingle, December 20, 1993, unreported. The learned judge said: ‘I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an
issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2).’ That is a test which we would also adopt. It might be helpful, however, if we added a few comments under two headings. In the first place the phrase ‘an issue in the case’ must not be construed in the fairly narrow way in which it is used in a civil case. It must be given a broad interpretation. This distinction results in an important difference in the duty to give discovery in a civil case and the duty of disclosure of the Crown in a criminal case. In a civil case a party is not entitled to discovery in respect of the credit of a party or a witness: Ballantine (George) and Sons Ltd v FER Dixon and Sons Ltd (1974). However, in a criminal case, the Crown is under a duty to give disclosure of significant material which may affect the credibility of a prosecution witness. Three examples will be sufficient. It is the principal reason for the rule that the Crown is obliged to disclose previous statements of prosecution witnesses ... Another example is the disclosability of a request for a reward by a prosecution witness: Taylor, June 11 1993, unreported; Rasheed, The Times, May 20 1994. The most important illustration is, however, the rule that the prosecution is obliged to disclose previous convictions of a prosecution witness. In an important judgment in Wilson v Police (1992), the Court of Appeal of New Zealand considered what convictions of a prosecution witness must be disclosed. Giving the judgment of the court Cooke P held: ‘As to the kind of conviction within the scope of the duty, the test must be whether a reasonable jury or other tribunal of fact could regard it as tending to shake confidence in the reliability of the witness.’ That test may be capable of being applied to other collateral material which could affect the credibility of a prosecution witness. That brings us to the second observation which we wish to make about Jowitt J’s formulation of the duty of disclosure. Usually the material will be in documentary form and it does not matter whether it is a statement, a report, a memorandum, a note or any other kind of document. What matters is the relevance of the information contained in it. Sometimes relevant information may be received orally by the police. It is certainly good practice to make a written record of such information which would then be disclosable: see the Director of Public Prosecution’s Guidance to Chief Constables on Disclosure of Unused Material, August 1992, paragraph 9. Conceivably cases can arise where there is no written record of the relevant information; for example, oral information that a witness who purported to identify an attacker by the colour of his clothes is partly colour-blind. Counsel concedes on behalf of the Crown Prosecution Service that in principle the duty of disclosure applies equally to written and oral statements. In our judgment that concession was rightly made ... Finally, there is the important subject of public interest immunity in criminal proceedings. This branch of the law is not yet fully developed. It is, however, better that the law should be developed on a case by case basis in the context of an intense focus on particular practical problems ... For the present purposes it is sufficient to state four propositions which are now clearly established. First, it is for the court to rule on the question of immunity and that necessarily involves the court studying the material for which immunity is claimed. Secondly, the judge must always perform a balancing exercise, taking into account the public interest and the interests of the defendant. Thirdly, in Keane (supra), the Lord Chief Justice explained how this balancing exercise is to be reconciled with a
defendant’s fundamental right to a fair trial: ‘If the disputed material may prove the defendant’s innocence or avoid a miscarriage of justice, then the balance comes down resoundingly in favour of disclosing it.’ Fourthly, even if the trial judge initially decided against disclosure, he is under a continuous duty, in the light of the way in which the trial develops, to keep that decision under review. Prosecuting counsel, as a minister of justice, must inform himself fully about the content of any disputed material so that he is in a position to invite the judge to reassess the situation if the previous denial of the material arguably becomes untenable in the light of developments in the trial ...5
