Law Report: Crown's duty of disclosure to the defence is limited

The prosecution was under no legal duty to disclose to the defendant to a criminal charge material which was relevant only to the credibility of defence witnesses.

Regina v Brown; House of Lords (Lord Goff of Chieveley, Lord Slynn of Hadley, Lord Hope of Craighead, Lord Clyde and Lord Hutton) 24 July 1997.

The House of Lords dismissed the appellant's appeal against his conviction on 18 June 1993 at Manchester Crown Court of wounding with intent to do grievous bodily harm, contrary to section 18 of the Offences Against the Person Act 1861. On 15 June 1994 the Court of Appeal dismissed his appeal, but certified that a question of general public importance was involved in the decision, namely whether the Crown was under a legal duty to disclose material which was relevant only to the credibility of defence witnesses.

It was alleged that the appellant had stabbed a young woman in a public house. His defence was alibi. One defence witness gave evidence that he had been with the appellant at the material time. It was put to him in cross-examination that he had originally told the police that he was too drunk to recall the appellant's whereabouts. A second witness had originally given a statement to the police directly implicating the appellant in the offence. He gave evidence that the appellant was not one of the young woman's attackers. It was put to him in cross- examination that he had withdrawn his original statement because of threats, which he denied.

It was argued in the Court of Appeal that the Crown had failed to disclose information to the defence which tended to reflect on the credibility of those witnesses, and that such information was disclosable in the same way as information relating to the credibility of witnesses for the Crown.

Richard Henriques QC and Ian McMeekin (Tom Burke & Co) for the appellant; M. Shorrock QC and Alan Conrad (Crown Prosecution Service) for the Crown.

Lord Hope said that although the rules as to the disclosure of material by the prosecution were now set out in Part 1 of the Criminal Procedure and Investigations Act 1996, the rules of common law continued to apply to all cases where the steps described in section 1 of the Act were taken before 1 April 1997 with a view to proceedings against the defendant. The issue in the present case was thus still one of general public importance.

There was no guidance in the authorities as to whether the duty of disclosure extended to the credibility of defence witnesses. In the Court of Appeal it had been accepted that such information was relevant, but that the burden which a duty to disclose it would impose on the Crown was excessive and unnecessary.

Two questions must be addressed: whether it was reasonable to distinguish material which might assist the defence case from material which related only to the credibility of the defence witnesses; and whether it was consistent with the general principle of fairness to say that the Crown was not under a legal duty to disclose material which was relevant only to a defence witness's credibility.

It was enough for an affirmative answer to the first question to say that much of the material which was frequently used in practice to test a witness's credibility was entirely irrelevant to the question whether the defendant was guilty or innocent of the offence with which he was charged.

As to the second question, a defendant was entitled to a fair trial, but fairness did not require that his witnesses should be immune from challenge as to their credibility. The important developments in the prosecutor's duty of disclosure had not altered the essential point that there was a difference between the functions of the prosecutor and those of the defence.

Once the duty to disclose material which might assist the defence was satisfied, the investigation and preparation of the defence case was a matter for the defence. The disclosure argued for by the appellant would protect from challenge those who were disposed to give false evidence in support of a defence which had been fabrictaed. That would be to tip the scales of justice too far.

- Kate O'Hanlon, Barrister