Prosecution 'should give evidence to defence'

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The Independent Online
Lawyers are calling for new safeguards to prevent miscarriages of justice and counter-balance moves to make defendants outline their case in advance of their trial.

Both the Bar Council and the Law Society want the prosecution to be obliged to draw up a schedule of evidence in its possession and hand it over to the defence.

One suggestion is that police would list all unused evidence on a form, with a signed and legally binding declaration that all relevant material had been included.

The views of the two bodies, which represent the barristers and solicitors of England and Wales, are contained in submissions to a consultation paper on the subject for Michael Howard, the Home Secretary.

James Goudie QC, chairman of the Bar Council's Law Reform Committee, said: "The bottom line must be that the prosecution should not be exposed to the temptation not to provide the defence with material which may prove the innocence of the defendant."

He added: "If there is to be a statutory scheme of disclosure, we would favour the safeguard of the prosecution being required to submit a signed schedule of material. Investigating authorities would then be clear that to leave anything off that schedule would constitute a serious breach of criminal procedure."

Mr Howard is examining proposals to oblige the defence to outline its case to the prosecution before a trial starts, with the prosecution entitled to draw an adverse inference at the trial if the information is not forthcoming.

The move is intended to prevent the defence "ambushing" the prosecution by producing a plausible but false defence at the last minute.

In another move, the amount of material the prosecution must provide to defence lawyers would be limited. The aim is to protect from disclosure to defendants sensitive information such as the names of informants and details of intelligence operations.

Several forces have claimed that they have had to abandon cases to protect an informant.

The Government came under pressure to reform the present trial system when several senior police officers, including Sir Paul Condon, the Metropolitan Police Commissioner, John Hoddinot, Chief Constable of Hampshire, Charles Pollard of Thames Valley and David Phillips of Kent all questioned its effectiveness.

Robert Roscoe, chairman of the Law Society's criminal law committee, said: "Michael Howard's proposals are misguided. They arise through police pressure and misconceptions held by the public."

He added: "The proposed reforms ignore a series of recent highly publicised miscarriages of justice and will undoubtedly unbalance the criminal justice system and lead to more wrongful convictions rather than less."

The Bar Council expressed its "fundamental disagreement" with the suggestion that the police would not be under a duty to make all information relating to the case available.

If the defence had to outline its case at the outset of the trial, the prosecution should be required to provide a case statement also, the Bar Council argued.

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