While understanding the concerns of the police and the Director of Public Prosecutions, who has expressed a similar view, we must not lose sight of why these new rules were developed. We do accept that the law needs to be clarified, and have done so in our evidence to the Royal Commission on Criminal Justice. However, it is unlikely that we would want it 'clarified' in the same direction.
In virtually all of the more famous miscarriages of justice - particularly in the cases of the Birmingham Six, the Guildford Four and Judith Ward - the fact that the defence solicitors were not given all the relevant documents had a substantial effect on the trial and contributed to the wrongful convictions.
The Lord Chief Justice's decision in the Ward case imposed a high but proper duty on the police and the prosecution to disclose documents, but even in that case the Court of Appeal accepted that there should be exceptions. These exceptions, based on the infamous concept of 'public interest immunity' are now, following the Matrix Churchill case, under attack. Nevertheless, the protection of informants has always been, and remains today under the new rules, a ground to refuse complete disclosure to the defence.
There will always have to be a balance between the rights of the defendant and the need to protect informants. The danger of non- disclosure is that crucial information will not be disclosed and, as a result, innocent people will be convicted.
The defence cannot rely on the prosecution to sift through for these nuggets of information because they will not know the details of the defence case. Equally, the defence cannot know without reading the material whether it is likely to be of use.
The choice of using informants is often made by the police themselves. Until fairly recently the use of informants was frowned upon by the courts and the evidence not admissible at all. The police will now have to reconsider their apparent policy of making an increased use of informants and will need to balance this against the 'broad interests of justice'.
In a few cases the police will have to discontinue a particular prosecution in order to protect their sources, but that is the price we have to pay for a fair criminal justice system where the innocent have a good chance of acquittal.
Liberty: National Council
for Civil Liberties