Judgments - Regina v. Mills
Regina v. Poole

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      However the principal submission advanced on behalf of the appellants by Mr. Mansfield was that the rule in Bryant and Dickson should no longer be followed and was in conflict with the approach adopted by the Court of Appeal in decisions given subsequent to the trial of the appellants. Mr. Mansfield submitted that in decisions since 1990 the Court of Appeal had emphasised the importance in criminal cases of full disclosure by the prosecution and of the defendant being informed of material which might assist him in his defence and that this was a consistent theme which ran through the decisions in Regina v. Davis, Regina v. Ward, and Regina v. Keane. In Ward at page 645F the court stated that the rules relating to disclosure by the prosecution:

     ". . . were merely aspects of the defendant's elementary common law right to a fair trial which depends upon the observance by the prosecution, no less than the court, of the rules of natural justice. No authority is needed for this proposition but it is illustrated by the decision of the Divisional Court in Regina v. Leyland Justices, Ex parte Hawthorn [1979] Q.B. 283. On the broad basis of this right, the defendant is plainly entitled (subject to statutory limitations on disclosure, and the possibility of public interest immunity, which we discuss below) to be supplied with police evidence of all relevant interviews with him.

     "We would adopt the words of Lawton L.J. in Regina v. Hennessey (Timothy) (1978) 68 Cr.App.R. 419, 426, where he said that the courts must:

     '. . . keep in mind that those who prepare and conduct prosecutions owe a duty to the courts to ensure that all relevant evidence of help to an accused is either led by them or made available to the defence. We have no reason to think that this duty is neglected; and if ever it should be, the appropriate disciplinary bodies can be expected to take action. The judges for their part will ensure that the Crown gets no advantage from neglect of duty on the part of the prosecution.'

     "That statement reflects the position in 1974 no less than today. We would emphasise that 'all relevant evidence of help to the accused' is not limited to evidence which will obviously advance the accused's case. It is of help to the accused to have the opportunity of considering all the material evidence which the prosecution have gathered, and from which the prosecution have made their own selection of evidence to be led. We believe that in practice the importance of disclosing unused material has been much more clearly recognised by prosecutors since the publication of the Attorney-General's guidelines. The current Code of Conduct of the Bar (1991), Annexe H, 'Written Standards for the Conduct of Professional work, Standards Applicable to Criminal Cases,' para. 1.2, reflecting the words of Lawton L.J. which we have quoted, provides:

     'Prosecuting counsel should bear in mind at all times whilst he is instructed that he is responsible for the presentation and general conduct of the case and that it is his duty to ensure that all relevant evidence is either presented by the prosecution or made available to the defence.'"

     Therefore Mr. Mansfield contended that under the principles established by recent decisions the prosecution should have furnished Juke's statements to the defence. He submitted that if the statements had been given to the defence so that Mr. MacDonald was aware of their contents, he would have called Juke, who would have said that the contents of the second statement were untrue and were only procured by police pressure. Moreover if the statements had been given to the defence it is very probable that the appellants would have been separately represented, and counsel for Mills would have called Juke to support Mills' case that he acted in self defence, whilst counsel for Poole could have cross-examined Juke effectively as to why he changed his account of Poole's actions in his second statement.

     Mr. Mansfield submitted that the only matters exempt from disclosure by the prosecution are (a) matters which are not relevant, (b) matters in respect of which a claim of public interest immunity is upheld by the court, (c) matters which fall under the statutory exception provided by section 2 of the Interception of Communications Act 1985, and (d) matters which go only to the credibility or reliability of defence witnesses. The two statements of Juke did not fall into any of these categories and therefore should have been disclosed.

     Mr. Mansfield also relied strongly on the judgment of the Supreme Court of Canada delivered by Sopinka J. in R. v. Stinchcombe (1991) 68 CCC (3d) 1. In that case the Crown decided not to call a witness who was considered unworthy of credit by Crown counsel. The witness could have given evidence directly relevant to the issues arising at the trial. The Crown also refused to disclose the statements of the witness to the defence. Part of the head note reads:

     "In this case, Crown counsel misconceived his obligation to disclose the statements. Crown counsel had refused disclosure because in his view, the witness was not worthy of credit. This was not an adequate explanation. The trial judge ought to have examined the statements and erred in holding that the Crown counsel was not under an obligation to make disclosure of the statements. The failure of the Crown to make disclosure impaired the right of the accused to make full answer and defence. It must be assumed that non-production of statements was an important factor in the decision of the defence not to call the witness. The absence of this evidence might very well have affected the outcome. Accordingly, the appeal must be allowed and a new trial ordered at which the statements should be produced."

     Mr. Mansfield informed their Lordships that it was now the practice in the Crown Courts in London for the prosecution to give to the defence a copy of a statement of a witness in respect of relevant matters notwithstanding that the prosecution regard the witness as not being a witness of truth, although their Lordships were informed by Mr. Chadd Q.C. that this was not the practice on the Western Circuit where the rule in Bryant and Dickson still applies.

     Mr. Mansfield further relied on the Consultation Document on Disclosure presented to Parliament by the Home Secretary in May 1995. In Chapter 4 relating to Primary Prosecution Disclosure paragraph 42 states:

     "Illustrations of material which may undermine the prosecution case, and which should therefore be made available when the prosecution discloses unused material in its possession, are as follows:

     - if the defendant has told the police in an interview that he was acting in self-defence, it will be necessary to disclose the statement of any witness who supports this but whom the prosecution does not regard as truthful."

     Mr. Mansfield submitted that this paragraph would apply directly to the present case and was a clear recognition that the relevant statement of a witness should be disclosed to the defence, even if the prosecution regard the witness as untruthful.

     Mr. Chadd, for the Crown, submitted that the rule in Bryant and Dickson constitutes, in addition to public interest immunity, a further exception to the Crown's duty to make disclosure. He contended that the rule was still valid today as it was based on a recognition that the purpose of a criminal trial is to arrive at the truth, and this object is not assisted if the defence (being already aware of the existence of the witness so that it can interview him) is furnished in advance of the trial with the statement of the witness who the prosecution reasonably believes will give untruthful evidence and will seek to assist in the making of a false defence if called by the defendant. Mr. Chadd further submitted that the courts should have regard to the reality that if one of a group of criminals committed a crime and the police quickly obtained a statement from another of the group implicating the former in the crime, and the prosecution then decided not to call the latter because it took the view that in the witness box he would seek to assist the defendant and would dishonestly seek to explain away his earlier statement, the preparation of the false defence would be considerably assisted if the prosecution were obliged to hand over the statement prior to trial.

     Mr. Chadd further submitted that, whilst the Court of Appeal in Ward was not directly concerned with the rule in Bryant and Dickson, the Court recognised the continuing validity of the rule when it said that there can be good reasons for not supplying a copy of a witness statement and stated at 679H:

     "It is now convenient to summarise the principles of law and practice which at the present time govern the disclosure of evidence by the prosecution before trial.

     "(1) 'Where the prosecution have taken a statement from a person whom they know can give material evidence but decide not to call him as a witness, they are under a duty to make that person available as a witness for the defence . . .' (Archbold, Criminal Pleading Evidence and Practice, 44th ed. (1992), p. 550, para. 4-276).

     "It is part of the same passage as is quoted with approval in this court in Regina v. Lawson, 90 Cr.App.R. 107, 114, from the preceding edition. 'Material evidence' means evidence which tends either to weaken the prosecution case or to strengthen the defence case.

     "(2) Unless there are good reasons for not doing so, the duty should normally be performed by supplying copies of the witness statements to the defence or allowing them to inspect the statements and make copies: Regina v. Lawson. Where there are good reasons for not supplying copies of the statements, the duty to disclose can be performed by supplying the name and address of the witness to the defence."

     Mr. Chadd also relied on the judgments of the Court of Appeal in Regina v. Williams (unreported), 15 April 1994, and Regina v. Seymour (unreported), 19 December 1995. In each of those cases the Court of Appeal held that where the prosecution had taken a statement which undermined the credibility of a witness supporting a defence alibi, the prosecution was not obliged to give a copy of the statement to the defence.

     The arguments advanced on behalf of the Crown are of considerable weight. In particular, in a case such as the present one where Juke was a friend and associate of the appellants, I consider that there is force in the argument that if his statements had been given to the defendants it might well have assisted them to prepare a false defence and Juke, when called as a defence witness, to contrive an explanation for parts of his statements adverse to the appellants. However, notwithstanding the force of these arguments, I have come to the conclusion for the following reasons that the rule in Bryant and Dickson can no longer be regarded as laying down the proper practice.

     The rule was formulated by the Court of Appeal in 1946, a considerable time before recent developments in the common law relating to disclosure, and it is difficult to reconcile the rule with the emphasis which the modern cases place on the duty of the prosecution to disclose all relevant material which may assist the defence, subject to the exception, expressly recognised in the modern cases, of public interest immunity. The Court of Appeal in Ward was not directly concerned with the issue which arises in the present case, and I do not consider that its judgment can be read as constituting express approval of the rule in Bryant and Dickson. I further consider that the judgments in Williams and Seymour are distinguishable as in each of those cases the statement taken by the prosecution did not contain evidence of facts which undermined the prosecution case or assisted the defence case. This distinction was expressly recognised in Seymour when Judge J. stated:

     "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."

     The judgment of the Supreme Court of Canada in Regina v. Stinchcombe is also a strong persuasive authority in support of the argument of the appellants. Sopinka J. stated at page 7:

     "I would add that the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done."

And at page 8:

     "Refusal to disclose is also justified on the ground that the material will be used to enable the defence to tailor its evidence to conform with information in the Crown's possession. For example, a witness may change his or her testimony to conform with a previous statement given to the police or counsel for the Crown. I am not impressed with this submission. All forms of discovery are subject to this criticism. There is surely nothing wrong in a witness refreshing his or her memory from a previous statement or document. The witness may even change his or her evidence as a result. This may rob the cross-examiner of a substantial advantage but fairness to the witness may require that a trap not be laid by allowing the witness to testify without the benefit of seeing contradictory writings which the prosecutor holds close to the vest. The principle has been accepted that the search for truth is advanced rather than retarded by disclosure of all relevant material."

     Moreover, as the Court of Appeal stated in Regina v. Lawson, an inflexible application of the rule in Bryant and Dickson can lead to injustice. An obvious example is where, as occurred in Stinchcombe, the witness who has made the statement to the police refuses to be interviewed by the defence. In Lawson the prosecution did not give the defence a copy of the statement of a witness as to material facts which supported the defence case because it considered that it might require to use the statement if the person who had made it were called as a defence witness. In fact, the defence did not call the witness because it was unaware of a change in the relationship between her and a co-defendant. The Court of Appeal allowed the appeal and quashed the conviction stating at page 115:

     "This Court . . . wishes to endorse the observation made in the paragraph in Archbold: that it must be remembered that an inflexible application of Bryant and Dickson (supra) can lead to an injustice. In the circumstances of this case, the Court has no doubt whatever that for that trial to proceed on the basis that it did, with the defence wholly unaware of the change in the relationship between these two witnesses and of the fact that the statement had been given, is the sort of injustice which may occur."

The Court went on to state:

     "It is not possible to make a ruling as to the circumstances in which it is or is not right to exercise the discretion one way or the other. In the vast majority of cases the experience and feeling of counsel will lead to the right decision being made but when a wrong decision is made then the matter has to be dealt with properly and the appeal allowed on that ground."

     The Court of Appeal made a similar observation in the present case, stating:

     "In our view, the answer is to be found in the judgment of this Court in Regina v. Lawson. The prosecutor has discretion and good sense and experience will ordinarily safely point the way. Where it can be shown that an injustice has resulted from that exercise this Court will intervene, but in the case of the incredible witness the non-disclosure of a material statement is not per se an irregularity."

     In my opinion as the rule is recognised as one which can, in certain circumstances, operate to cause an injustice at the trial leading to an unsafe conviction and the imprisonment of the defendant, which can only be remedied some time later by the Court of Appeal, the rule should not continue as part of the common law unless there is a strong countervailing argument to support it. But I consider that the risk that disclosure may assist the defence to tailor its evidence is not a consideration which should outweigh the risk that the operation of the rule may result in injustice.

     Moreover, although under the rule in Bryant and Dickson the defence will always know of the existence of the witness and there are obvious differences between non-disclosure under the rule and non-disclosure on the ground of public interest immunity, the giving of discretion to the prosecutor to decide whether to furnish a copy of the statement is not in conformity with the approach stated by Lord Taylor of Gosforth C.J. in Regina v. Davis 97 Cr.App.R. 110, 114:

     "Before Ward, the defence would have been totally unaware that, within the prosecution authority, the question of whether to disclose sensitive material or not was being resolved. The effect of Ward is to give the court the role of monitoring the views of the prosecution as to what material should or should not be disclosed and it is for the court to decide. Thus, the procedure described as unsatisfactory in Ward, of the prosecution being judge in their own cause, has been superseded by requiring the application to the court."

     Accordingly I would hold that the rule in Bryant and Dickson is not in conformity with the principles relating to disclosure established by the decisions of the Court of Appeal subsequent to the trial of the appellants, and the rule should no longer be applied. Therefore at the present time it would constitute a material irregularity not to disclose Juke's statements, and for the reason which I have given, I would hold that the non-disclosure did constitute a material irregularity at the time of the trial.

     Therefore the final question for decision is whether this material irregularity made either of the convictions unsafe. In my opinion it did not for two reasons. First, although the non-disclosure of Juke's two statements meant that the defence did not have precise knowledge of what Juke had told the police in those statements about the actions of the two appellants, nevertheless the information which Juke gave to Mr. Gadd, the solicitor for the appellants, in the detailed interview which the latter conducted with him, together with the substance of Juke's second statement which was put to Mills by the police when they questioned him, meant that the defence were aware of the general nature of the information which Juke had given to the police and were alerted to the risks which would be involved in calling him as a defence witness. Accordingly I am in agreement with the view of the Court of Appeal that any prejudice from the non-disclosure was thereby largely eliminated.

     Secondly, as I have stated, the Court of Appeal went on to consider the issue of the safeness of the convictions on the assumption (contrary to its finding) that there had been a material irregularity and in the light of Juke's evidence before it, and concluded that the convictions were not unsafe. The reasoning of the Court of Appeal was as follows:

     "If our conclusion had been that there was a material irregularity in the non-disclosure of Juke's statement, we would have had to consider whether for that reason either conviction was unsafe. Having heard Juke in the witness box we are sure that his evidence would not have raised doubts in the jury's minds as to the guilt of either defendant. We have already referred to the conflict between the injuries spoken of by Juke and the casualty doctor's findings. It was Juke who took the deceased from the front room in which the incident happened and left him on the street outside. He was thus well placed to know in general terms what injuries the deceased had sustained.

     "Miss Stadden said that Juke had for a period covered her eyes so that she would not see what was happening. Juke agreed that he had done so, and that in doing so he had turned his head away from the incident and towards Miss Stadden. But, he insisted, he had covered her eyes only for a moment, and only turned his head for that moment. Thus it was not possible to explain his not having seen the infliction of the injuries to the deceased's buttocks and below his knee caps on that account.

     "In our judgment, Juke's evidence would only have served to underscore the disproportion between the extensive injuries to Wiltshire seen at casualty and the minor injury to Mills. Any question of who began the violence aside, the distribution of those injuries to the deceased that were seen pre arrest told most strongly against primarily Mills, but Poole also.

     "Moreover, it is likely the jury would have connected these two pieces of evidence and drawn the inference (as we unhesitatingly do) that Juke covered her eyes to spare her witnessing the savagery of the attack on the helpless Wiltshire--a visitor from the London drug scene who was to be taught a lesson for attempting to muscle in on the Gloucester drug scene on which Poole and Mills were obvious key players.

     "We are fully satisfied that had Mr. MacDonald called Juke at the trial his evidence would not have assisted either appellant in any way."

     The Court of Appeal had the great advantage of seeing and hearing Juke give evidence. Having considered the transcript of the evidence which Juke gave before the Court of Appeal I am satisfied that that Court was fully entitled to come to the conclusion that if Juke had given evidence for the defence at the trial both appellants would still have been convicted of the murder of Wiltshire. Therefore I consider that the convictions were not unsafe.

     Accordingly I am of the opinion that in the circumstances specified in the certified question the answer to it should be that it is the duty of prosecuting counsel to provide a copy of the statement of the witness to the defence and that the duty is not limited to furnishing only the name and address of the witness. But as I consider that neither of the convictions is unsafe I would dismiss both appeals.


© Parliamentary copyright 1997
Prepared 24 July 1997