Law Report: Disclosure guidelines' value eroded: Regina v Winston Brown. Court of Appeal (Criminal Division) (Lord Justice Steyn, Mr Justice Owen and Mr Justice Ian Kennedy). 15 June 1994

The prosecution is not under a legal duty to disclose to the defence material which is only relevant to the credibility of defence witnesses.

The Court of Appeal dismissed the appellant's appeal against conviction of wounding with intent to do grievous bodily harm.

The defendant's alibi to the Crown's allegation that he had stabbed the victim was supported by two witnesses. In cross- examination, one witness admitted he may have told the police that he was too drunk to recall the defendant's whereabouts and the other said he had withdrawn his statement to the police implicating the defendant because of threats.

The defendant appealed on the ground that the Crown owed a duty to disclose information which tended to reflect on the honesty of defence witnesses.

Ian McMeekin (Registrar of Criminal Appeals) for the appellant; Alan Conrad (CPS) for the Crown.

LORD JUSTICE STEYN, giving the court's judgment, said that the Attorney- General's Guidelines (1981) 74 Cr App R 302 were merely a set of instructions to Crown Prosecution Service lawyers and prosecution counsel. They did not have the force of law.

Today the guidelines did not conform to the requirements of the law of disclosure in a number of critically important respects. First, it was for the court, not prosecuting counsel, to decide on disputed questions as to disclosable materials and on any asserted legal ground to withhold production of relevant material. The procedure to be adopted, whether inter partes or exceptionally ex parte, was governed by rules of practice laid down in R v Davis (1993) 1 WLR 613; R v Keane (1994) 1 WLR 746 and R v Johnson, unreported, 15 January 1993.

There was no hint in the guidelines of the primacy of the court in deciding on issues of disclosure. The guidelines were not an exhaustive statement of the Crown's common law duty of disclosure. The guidelines were drafted before major developments in the field of public interest immunity.

The divergences between the guidelines and the common law showed the value of the guidelines as a set of instructions to prosecutors had largely been eroded by major legal developments. It was in the public interest that that reality should be addressed.

It was to the common law that the criminal justice system must turn to provide the framework of rules which governed disclosure by the Crown. The objective of the criminal justice system was the control of crime. It was axiomatic that everybody who came before our courts was entitled to a fair trial.

In our adversarial sustem, in which the police and prosecution controlled the investigatory process, an accused's right to fair disclosure was an inseparable part of his right to a fair trial.

In a criminal case, the Crown was under a duty to give disclosure of significant material which might affect the credibility of a prosecution witness. The Crown was therefore obliged to disclose previous statements of prosecution witnesses and to disclose previous convictions of a prosecution witness. The duty of disclosure applied equally to written and oral statements.

The law on public interest immunity in criminal proceedings was not yet fully developed. However, four propositions were now clearly established. It was for the court rule on the question of immunity and that necessarily involved the court studying the material for which immunity was claimed. The judge must always perform a balancing exercise, taking into account the public interest and the interests of the defendant. If the disputed material might prove the defendant's innocence or avoid a miscarriage of justice, then the balance came down resoundingly in favour of disclosing it. Even if the trial judge initially decided against disclosure he was under a continuous duty, in the light of the way in which the trial developed, to keep that decision under review.

Prosecuting counsel must inform himself fully about the content of any disputed material so that he was in a position to invite the judge to re-assess the situation if the previous denial of the material arguably became untenable in the light of developments in the trial.

Turning to the appeal, it was axiomatic that the duty to disclose extended to material which might arguably undermine the prosecution case or assist a defendant's case. In current practice, the Crown disclosed the previous convictions of the defendant but not the previous convictions of defence witnesses.

There must be a limit to the scope of discovery that could be required of the Crown. A defendant's solicitor was in a position to inquire from a defence witness or others about his past or about other matters affecting his credibility. It would impose an unnecessary and excessive burden on the Crown to impose a legal duty to disclose material which was only relevant to the credibility of defence witnesses. The submission that the Crown was under a legal duty to disclose previous convictions of defence witnesses was rejected.