Royal Commission on Criminal Justice: Defence 'should have to reveal its case': Defendants could be made to 'help' the prosecution, writes Adam Sage

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The Independent Online
DEFENDANTS will be under intense pressure to reveal their case in the run-up to their trial if the commission's recommendations are supported by the Government.

The commission outlines detailed plans aimed at abolishing the so-called 'ambush defence' whereby suspects only disclose their cases at the last moment.

Failure to provide an early indication of the arguments likely to be used by a defendant should be brought to the attention of the jury, the commission says.

This proposal will be warmly welcomed by the police and some barristers who believe the 'ambush defence' is used to secure acquittals of many guilty people.

The commission's report says: 'If all the parties had in advance an indication of what the defence would be, this would not only encourage earlier and better preparation of cases but might well result in the prosecution being dropped in the light of the defence disclosure, an earlier resolution through a plea of guilty or the fixing of an earlier trial date.'

However, inclusion of this recommendation split the commission, with one of its members, Professor Michael Zander, including a note of dissent. He said: 'The fundamental issue at stake is that the burden of proof lies throughout on the prosecution.

'Defence disclosure is designed to be helpful to the prosecution and, more generally, to the system,' Professor Zander says. 'But it is not the job of the defendant to be helpful either to the prosecution or to the system.'

The commission rejects calls for abolition of the right to remain silent. Jurors should not be told if a defendant refuses to answer police questions, it says.

There are also measures designed to balance the requirement for defendants to disclose their case. For instance, prosecution lawyers should be forced to disclose all material relevant to the case, whether or not they intend to rely on it.

Legislation is needed to lay down detailed guidelines on disclosure, the commission says, pointing out that some material has to be withheld in the interests of national, or occasionally commercial, security.

There is a radical proposal for judges to be given the power to order that up to three members of the jury are from ethnic minorities in cases with a racial dimension. In exceptional cases, defence lawyers should be able to request that the three jurors are from the same ethnic background as the defendant, the commission says.

If legal reformers will be pleased by this proposal, they will be angered by other recommendations. For instance, the commission says rules on hearsay evidence should be relaxed.

The commission says that in some cases the Crown Prosecution Service should listen to victims' opinions before deciding whether to bring a case to court.

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