Government departments, the police and the legal profession will be pressed to respond promptly to the consultation process because the Attorney- General, Lord Williams of Mostyn, wants the finalised guidelines in operation within the first quarter of next year. "We are trying to move as quickly as we can on this," his spokesman said.
Questionnaires by the Law Society and the British Academy of Forensic Sciences have already produced about 200 examples of non-disclosure, with barristers and solicitors warning that there could be serious miscarriages of justice. They listed cases where statements of witnesses who were helpful to the defence were not disclosed and where forensic or medical reports supporting the accused's versions of events were kept from the defence.
Non-disclosures have been at the heart of a series of miscarriages of justice dating back to the Seventies. The police did not tell the defence that Gerry Conlon, one of the Guildford Four, had an alibi in London for the night of the pub bombings; or that Stefan Kiszko was physically unable to commit the sex crime for which he was convicted; or that a witness in the case of the Taylor sisters, convicted of the murder of a rival lover, had told police that one of the two women seen near the place of the crime was black. Both sisters are white. The Birmingham six pub bombing case in 1991 was another high-profile case of miscarriage of justice.
In the Judith Ward case in 1992, the Court of Appeal decided enough was enough. It overturned her conviction for the M62 coach bombing, warning "we will not allow trial by ambush", and ruled the prosecution had to disclose all case material to the defence.
However, a backlash from police and prosecutors that they were having to spend vast amounts of time and money supplying the defence with material, much of it irrelevant, prompted the last government to clamp down on disclosure.
The Criminal Procedure and Investigations Act (CPIA) 1996, which came into force on 1 April 1997, created two tiers of disclosure, both of which are dependent on the prosecution deciding what unused material should be disclosed.
On primary disclosure, the police disclosure officer is required to list unused, non-sensitive material, and anything that might undermine the prosecution's case should be disclosed to the defence.
The defence, if it wants further disclosure, must first supply a defence statement. The prosecuting authority should then make secondary disclosure of any unused material that advances the defence case. However, examples of non-disclosure have brought criticism from trial judges. A rape trial in Nottingham Crown Court was stopped by the judge and the teenage defendant acquitted when the defence discovered that a crucial video tape taken from a CCTV camera in a nightclub foyer, which proved the defendant's innocence, had not been disclosed - a situation described as "lamentable" by the judge.
Disclosure was among the "unfinished business" outlined in Lord Williams's Tom Sergant memorial lecture in London last week when he canvassed the idea of new prosecution rights of appeal.
The Attorney-General maintained the problems with disclosure arose from a failure to implement the CPIA effectively, not from the Act itself. The Home Office was commissioning the search into how the disclosure regime was operating.
However, Roger Ede, secretary of the Law Society's criminal Law Committee, told The Independent that the Government needed to do more than issue guidelines and commission research which would not be completed until 2001. "By then, over a quarter of a million people will have been prosecuted and convicted under these provisions, after pleading not guilty in the magistrates courts and crown courts, yet we know the process by which they will have been tried is not working fairly." He said immediate action should include enhancing the status of the disclosure officer who should never be a witness in the case or involved in the investigation.
He quoted one case where a police officer, who was the subject of a formal complaint of assault by the accused and was the alleged victim of an assault by the accused, was appointed the disclosure officer. In that case, the police withheld a record of a telephone call to the police station from a member of the public at the scene claiming that police were assaulting people.
He said key documents such as crime reports and previous convictions of prosecution witnesses, should be copied to the defence as a matter of course. Prosecutors needed to be more vigorous in their examination of police schedules and more generous in their response to defence requests for disclosure. In the longer term, the disclosure provisions of the Act should be repealed because they were "unworkable". David Calvert-Smith QC, the Director of Public Prosecutions, spoke of his concern at a seminar organised by the British Academy of Forensic Sciences last week that some prosecutors were not complying with their disclosure duties.
However, since it was unlikely the Government would find legislative time to repeal or amend the CPIA, those of us who are faced with the task of prosecuting and defending (and judging) must therefore try to work within it. He said the Crown Prosecution Service was revising joint operational instructions with the police, as well as drafting a public statement of disclosure principals, compiling a good practice guide and running local training initiatives.
Giving the police view, David Phillips, Kent's Chief Constable, warned the seminar that if the disclosure regime was relaxed, it would mean victims and witnesses would refuse to make statements for fear of what might be disclosed about them to the defendant, while any diminishing of the protection provided by Public Interest Immunity (PII) would mean the police would no longer have a credible response to organised and serious crime.
He turned the criticism back on defence lawyers, arguing that their failure to disclose their case meant no system of prosecution disclosure could work. "What is needed is a process judicially supervised, to protect PII, where both sides can discover the extent of their opponents' case."
The defence practitioner David Corker, a partner in solicitors Peters & Peters, accepted that there needed to be more openness from the defence, "bearing in mind that ambush defences are extremely rare and that, in the vast majority of cases, the defence is easy to predict, the defence has far more to lose than to gain by being secretive". However, for the defence to be more open there would have to be safeguards against the prosecution making improper use of defence statements. The "absurd" time limit of 14 days to serve a defence statement would also have to be changed, he said.
In cases involving PII issues heard ex-parte and often in camera, Mr Corker suggested an independent lawyer should be appointed to protect the interests of the defence.
While it is too early for cases coming under the CPIA to have been challenged in Europe, the procedure for deciding what material should not be disclosed on PII grounds is currently being considered in Strasbourg in Rowe and Davis v UK - the M25 murder case.
Mr Calvert-Smith argued that the CPIA, properly operated, would not be in breach of Article 6 - the fair trial provision - of the European convention of human rights. However, Ben Emmerson, of Doughty Street Chambers, said there were serious doubts whether the CPIA would prove to be sustainable once the UK's Human Rights Act comes into force next October.Reuse content