Judgments -- Regina v. Brown  continued

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     In the Court of Appeal in the present case Steyn L.J. said at p. 1606H that the test suggested by Jowitt J. was one which that court also would adopt. He added that the phrase "an issue in the case" must not be construed in the same way as in a civil case and must receive a broad interpretation. He drew attention to the fact that, while in a civil case a party is not entitled to discovery in respect of the credit of a party or a witness, in a criminal case the Crown is under a duty to give disclosure of significant material which may affect the credibility of a Crown witness. He gave three examples at p. 1607A-D:

     "It is the principal reason for the rule that the Crown is obliged to disclose previous statements of prosecuting witnesses: Archbold&!!;s Criminal Pleading, Evidence and Practice, 1994 ed., paragraph 4-279. Another example is the disclosability of a request for a reward by a prosecution witness:Reg. v. Taylor (unreported), 11 June 1993; Reg. v. Rasheed (unreported), 17 May 1994. The most important illustration is, however, the rule that the prosecution is obliged to disclose previous convictions of a prosecution witness. In an important judgment in Wilson v. Police [1992] 2 N.Z.L.R. 533 the Court of Appeal of New Zealand considered what convictions of a prosecution witness must be disclosed. Giving the judgment of the court Cooke P. held, at p. 537: 

      'As to the kind of conviction within the scope of the duty, the test must be whether a reasonable jury or other tribunal of fact could regard it as tending to shake confidence in the reliability of the witness.&!!;

     That test may be capable of being applied to other collateral material which would affect the credibility of a prosecution witness."

     I agree with the view which was taken in the Court of Appeal that the phrase "an issue in the case" must be given a broad interpretation. The same may be said of the phrase "all relevant evidence of help to the accused" in the passage from Lawton L.J.&!!;s judgment in Reg. v. Hennessy (Timothy) which was adopted in Reg. v. Ward [1993] 1 W.L.R. 619, 645G. But the common law rules are concerned essentially with the disclosure of material which has been gathered by the police and the prosecution in the course of the investigation process for use in the case to be made for the Crown. In the course of that process issues of fact will have been identified which may assist or undermine the Crown case. The prosecution is not obliged to lead evidence which may undermine the Crown case, but fairness requires that material in its possession which may undermine the Crown case is disclosed to the defence. The investigation process will also require an inquiry into material which may affect the credibility of potential Crown witnesses. Here again, the prosecution is not obliged to lead the evidence of witnesses who are likely in its opinion to be regarded by the judge or jury as incredible or unreliable. Yet fairness requires that material in its possession which may cast doubt on the credibility or reliability of those witnesses whom it choose to lead must be disclosed. The question whether one or more of the Crown witnesses is credible or reliable is frequently one of the most important "issues" in the case, although the material which bears upon it may be, as Steyn L.J. observed, at p. 1607D, collateral.

Credibility of the Defence Witnesses

     But what of material relating only to the credibility of the defence witnesses? There is no guidance in these cases as to whether the duty of disclosure extends this far. The point, as Steyn L.J. put it, at p. 1608D, is a novel one. In the Court of Appeal it was held that the Crown was not under a legal duty to disclose material which adversely affected only the credibility of a defence witness. It was accepted that such information was relevant--as it had to be, because the credibility of every witness as to matters of fact is an issue which the jury has to resolve, and the defence witnesses are in no different position in that regard from the witnesses for the Crown. But the burden which such a duty would impose on the Crown was said to be excessive and unnecessary. On the one hand there were practical problems which might make the duty difficult to perform. On the other hand there was the fact that the defendant&!!;s solicitor was in a position to conduct his own inquiries into the witness&!!;s past history or other matters which might affect his credibility. So the public interest and fairness did not require the disclosure of Gordon&!!;s earlier statement that he had been drunk or Pinnock&!!;s statement that he was withdrawing his statement because of threats. A further argument affecting Pinnock&!!;s evidence, which arose out of the fact that a negative answer was given when the defence asked whether he had made a statement withdrawing his earlier statement, was rejected because the inference that he had done so was obvious and the defence were not in any material sense misled.

     Mr. Henriques submitted that it was not possible to separate issues relating to the credibility of the defence witnesses from the issues of fact raised by the defence case. At best, the distinction between issues of fact and credibility was a fine one which, in fairness, ought not to be made. In the present case the defendant had given notice of the defence of alibi. The prosecution were aware that the question whether the defendant was at the scene of the crime was an issue in the case. It was a critical issue relating to the question whether the defendant was the man who stabbed Michelle Patrick. It was clear that, in view of Gordon&!!;s statement to the police that he was drunk at the time, there was material in the possession of the prosecution which was detrimental to the defence case. So also, in Pinnock&!!;s case, they had his statement that he had decided to withdraw his statement implicating the defendant because of threats. This information also was detrimental to the defence case if they were to use him as a witness on their behalf. Had this information been disclosed to the defence he would not have been called as a defence witness, nor would Gordon have been called as a witness in support of the alibi.

     Two questions must therefore be addressed: (1) Is it reasonable to distinguish material which may assist the defence case from material which relates only to the credibility of the defence witnesses; and (2) Is it consistent with the general principle of fairness to say that the Crown is not under a legal duty to disclose material which is relevant only to a defence witness&!!;s credibility? It should be understood that, in posing these questions, I am concerned not with the defendant but only with the defence witnesses.

     As to the answer which should be given to the first question, there is no doubt that in practice the credibility of a witness is frequently tested by reference to material which is not directly relevant to the issues of fact which the judge or jury have to decide--material which, to adopt Steyn L.J.&!!;s expression, is collateral. Questions which are directed to the character of the witness provide one example. The fact that a witness has previous convictions, especially for crimes which imply dishonesty or disrespect for the law, may be of great significance in regard to issues of credibility. But it has nothing to do with the question whether the offence with which the defendant is charged was committed or whether it was the defendant who committed the offence. If the witness is not called on to give evidence, evidence of his previous convictions will be irrelevant and inadmissible. It will have no bearing whatever on the facts of the case. Other facts or circumstances may be used which are entirely irrelevant to the issues of fact as to the defendant&!!;s guilt or innocence, such as things done or said by the witness which may indicate a prejudice for or against the defendant. The same may be said of material regarding the capacity of the witness to observe or recall the events spoken to in his evidence. Here again if the witness is not called to give evidence this material will be irrelevant.

     There are, of course, cases where the question of credibility is so intimately bound up with the facts that the two cannot reasonably be separated. A good example of this is where an account is given by the witness of his recollection of events which contains within it contradictions or inconsistencies which cast doubt on his reliability. Another is where his account is contradicted by other witnesses, so that the issues of credibility and reliability have to be decided by assessing the weight of the evidence. So it is not possible to say that material relating to the credibility of defence witnesses will always be distinguishable from the issues of fact relating to the defendant&!!;s guilt or innocence. But it is enough for an affirmative answer to the first question to say that much of the material which is regularly used in practice to test a witness&!!;s credibility is entirely irrelevant to the question whether the defendant is guilty or innocent of the offence with which he is charged. In the case of the defence witnesses in particular, the issues of fact raised by the defence case do not exhaust the material which may be used by the prosecutor to test their credibility.

     As to the second question, the principle of fairness lies at the heart of all the rules of the common law about the disclosure of material by the prosecutor. But that principle has to be seen in the context of the public interest in the detection and punishment of crime. A defendant is entitled to a fair trial, but fairness does not require that his witnesses should be immune from challenge as to their credibility. Nor does it require that he be provided with assistance from the Crown in the investigation of the defence case or the selection, on grounds of credibility, of the defence witnesses. The legal representation to which he is entitled, usually with the benefit of legal aid, has the responsibility of performing these functions on his behalf. To repeat the words of Lord Diplock in Dallison v. Caffery [1965] 1 Q.B. 348, 375, the duty of the prosecutor is to prosecute, not to defend. The important developments in the prosecutor's duty of disclosure since he wrote these words have not altered the essential point that there is a difference between the functions of the prosecutor and those of the defence. The prosecutor's duty is to prosecute the case fairly and openly in the public interest. It is not part of his duty to conduct the case for the defence.

     The common law rules which I have described are designed to ensure the disclosure of material in the hands of the prosecutor which may assist the defence case. But, once that duty has been satisfied, the investigation and preparation of the defence case is a matter for the defence. That includes the tracing, interviewing and assessment of possible defence witnesses. And material which may assist the defence case can be distinguished from material which may undermine it or may expose its weaknesses. The adversarial system under which trials in this country are conducted applies to the examination of witnesses in support of the defence case in the same way as it does to the examination of the witnesses for the Crown. No witness enters the witness box with a certificate which guarantees his credibility. Every witness can expect to be cross-examined upon the veracity or reliability of his evidence. Cross-examination which is directed only to credibility may lose much of its force if the line is disclosed in advance. This weakens the opportunity for the assessment of credibility by the jury or, in a summary case, by the justices. To insist on such disclosure would, sooner or later, undermine the process of trial itself. It would protect from challenge those who were disposed to give false evidence in support of a defence which had been fabricated. That would be to tip the scales too far. Justice would not have been done.


     I would be inclined to attach less weight to the practical problems than that which was given to them by the Court of Appeal. If fairness demands disclosure, then a way of ensuring that disclosure will be made must be found. But it is a fact that in many cases, other than those to which the special rules apply relating to alibi, the defence does not disclose the identity of its witnesses until a late stage. It would place a substantial burden on the Crown for it to be expected to retain, and be ready to disclose at short notice, material which might possible relate to the credibility only of those whom the defence might possibly wish to call as its witnesses. It would also be unreasonable to expect the prosecutor to reveal information relating to the credibility of defence witnesses previously unknown to the Crown whose credibility did not require to be investigated until their identity was made known to the prosecutor. Yet, if there was a legal duty which required the disclosure of information relating to the credibility of the defence witnesses, there would be no answer to such a demand.

     In Reg. v. Williams (Michael) (unreported), 15 April 1994 it was argued that wherever the Crown have, as a result of their investigation of the contents of a notice of alibi, found material which goes to disprove the alibi, they must call it as part of the prosecution case. Rejecting that argument, the Court of Appeal went on to agree with the trial judge that it would be absurd if the prosecutor, having investigated the alibi, were to be obliged to reveal to the defence a statement from a witness which suggested that the alibi might be a false one. A similar issue was raised in Reg. v. Seymour (unreported), 19 December 1995 where the basis of the appeal was that a material irregularity had occurred because the prosecution had failed to disclose to the defence that they were in possession of a statement signed by a defence witness as to alibi which was used to cross-examine her when she gave evidence. Delivering the opinion of the court, Judge J. said, in a passage which is at one with the approach which I commend to your Lordships:

     "We regard this as absurd. There will of course be occasions when such investigations will reveal positive information assisting the defence case. Such material will be disclosed in accordance with current principles. Similarly, the results may provide positive evidence to support the prosecution case, and enable the prosecution to serve notice of further evidence and rely upon it as part of the prosecution case.

     "Where, however, as here, the result of checking the alibi notice is to provide the prosecution with material which serves to undermine the credibility of a witness, apparently to be relied upon by the defence, there is in our judgment no duty of disclosure."

     Fairness, so far as the preparation of the defence case and the selection of the defence witnesses are concerned, is preserved by the existing rules of disclosure and by ensuring that the defendant has adequate time and facilities for the preparation of his defence. That right, which is to be found also in Article 6.3(b) of the European Convention of Human Rights, has for long been part of our law relating to the conduct of criminal trials. The investigation for which the defence are responsible extends to all matters which may affect the credibility of the defence witnesses. The preparation of the defence case is not complete until this has been done. Once it has been completed, the defence can be assumed to be in possession of all that is needed to decide which witnesses to lead and which to reject on grounds of credibility. It is unnecessary to extend the duty of disclosure by the prosecutor any further to ensure that the defendant has a fair trial.

     For these reasons I would answer the certified question in the negative and dismiss the appeal.


My Lords,

     I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hope of Craighead. For the reasons he gives I would dismiss the appeal.


My Lords,

     I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hope of Craighead. I agree with it and for the reasons he gives I would dismiss the appeal.


© Parliamentary copyright 1997
Prepared 24 July 1997