ABSTRACT
R v Westwell (1976, Court of Appeal) Bridge LJ: ... There is no general rule that prospective witnesses may not, before giving evidence at a trial, see the statements which they made at or near the time of the events of which they are to testify. They may see them whether they make a request to do so or merely accept an offer to allow them to do so. On the other hand, there is no rule that witnesses must be allowed to see their statements before giving evidence. There may be cases where there is reason to suppose that the witness has some sinister or improper purpose in wanting to see his statement and it is in the interests of justice that he should be denied the opportunity. Examples are suggested in the Home Office circular and in the judgment of this court in R v Richardson (1971). However, in most cases and particularly where, as often happens, there is a long interval between the alleged offence and the trial, the interests of justice are likely to be best served and witnesses will be more fairly treated if, before giving evidence, they are allowed to refresh their recollection by reference to their own statement made near the time of the events in question. As was said by the Supreme Court of Hong Kong in 1966, in passages quoted with approval by this court in R v Richardson, if a witness is deprived of this opportunity his testimony in the witness-box becomes more a test of memory than truthfulness; and refusal of access to statements would tend to create difficulties for honest witnesses but would be likely to do little to hamper dishonest witnesses. We have all, from time to time, seen the plight of an apparently honest witness, subject to captious questioning about minor differences between his evidence in the witness-box and the statement he made long ago and has never seen since, although his tormentor has it in his hand and has studied it in detail. Although such cross-examination frequently generates in the jury obvious sympathy with the witness and obvious irritation with the cross-examiner, it must leave a witness who has come to court to do his honest best with a smarting sense of having been treated unfairly. Neither in the approved statement in the Home Office circular, nor in the judgment of the court in R v Richardson, is it laid down that the Crown must inform the defence that a prosecution witness has been allowed to look at his written statement before giving evidence. In R v Richardson the defence first discovered the fact for themselves in the course of cross-examination of a prosecution witness. The court made no criticism of the Crown on that account, nor was it invited to do so. Moreover, the decision of the trial judge, refusing to allow previous witnesses to be recalled for cross-examination about their statements, was upheld because in the particular facts of that case no prejudice was thereby caused to the defence. Since hearing the argument in this appeal, our attention has been called to the decision of the Divisional Court in Worley v Bentley (1976) in which the same point arose. The court held that it was desirable but not essential that the defence should be informed that the witnesses have seen their statements. We agree. In some cases the fact that a witness has read his statement before going into the witness-box may be relevant to the weight which can properly be attached to his evidence and injustice might be caused to the defendant if the jury were left in ignorance of that fact. Accordingly, if the prosecution is aware that statements have been seen by witnesses it will be appropriate to inform the defence. But if, for any reason, this is not done, the omission cannot of itself be a ground for acquittal. If the prosecution tell the defence that the witness has been allowed to see his statement the defence can make such use of the information as it thinks prudent, but in any event the defence, where such fact may be material, can ask the
witness directly when giving evidence whether the witness has recently seen his statement. Where such information is material it does not ultimately matter whether it is volunteered by the prosecution or elicited by the defence. If the mere fact that the prosecution had not volunteered the information were a bar to conviction, this would be an artificial and arbitrary rule more appropriate to a game or a sporting contest than to a judicial process. The question for the court is whether, in the event, the trial can be continued without prejudice or risk of injustice to the defendant ...4
