Examination of Witnesses (Questions 200
- 219)
TUESDAY 19 NOVEMBER 2002
MR PETER
ROOK, QC, MR
ROGER SMITH,
MR PETER
BINNING AND
MR RODNEY
WARREN
200. Did the 1996 Act make things better or
worse?
(Mr Rook) Well, from one point of view they made it
worse because prosecution authorities would look at the two stage
test and perhaps would not make as much disclosure as they should.
Of course it is problems over late disclosure which so often lead
to adjournments. That is why we advocate a single test. I remember
hearing the Director of Public Prosecutions giving guidance to
counsel not long ago saying "Well, when you go through material,
think is this material which you, if you were defending, you might
want to use in cross-examination rather than standing on ceremony
and saying 'Does it come within stage one test? Does it come within
stage two test?'"
201. Do you all say the thing has got worse,
as I understand Mr Rook to say, since the 1996 Act?
(Mr Rook) Perhaps before Mr Binning comes in I think
that would be an exaggeration to this extent: we do have the Attorney-General's
recent guidelines now which are extremely helpful in that area
and I think there is some improvement now.
202. Everybody agrees with that much at least,
do they?
(Mr Binning) One could look at it in this way, if
one took away the 1996 Act and went back to where we stood before
it, if one echoed the principles of the White Paper of transparency
one could argue what is wrong with the previous system? What is
wrong with the defence being able to see everything which is not
subject to public interest immunity and which is not sensitive
for any other reason? What is wrong with the defence seeing what
the prosecution have got as they would in the continental inquisitorial
system when they would see the dossier?
203. The problem was they did not.
(Mr Binning) That is true.
204. Alibi statements disappeared for 20 years
and then resurfaced.
(Mr Binning) Obviously there were problems under the
previous regime as well but in fact the high watermark which was
reached in the case of R v Keane and other similar cases
did deliver not a bad system. Sure it was resource intensive for
the prosecution and the investigators but I am not sure we can
say now that the resources needed to comply with the 1996 Act
properly and the Attorney-General's guidelines are any less than
the resources which were needed to comply properly with the common
law under the cases of Keane and others prior to 1996.
205. The problem is you are talking solely about
disclosure by the prosecution and what the Government and actually
many of our constituents were interested in was disclosure of
the defence case so a rational discussion on the issues can take
place rather than a game of ambush.
(Mr Binning) I think the response to that surely is
that if there was true transparency in the sense that the defence
did have access to all the material which could be relevant to
the case, and if they could be confident of that, which I am afraid
to say you only have to look at recent appeal cases—one
in particular—to see the defence can still not be confident
that they are getting what they should get.
206. Which particular case?
(Mr Binning) There is a case called Early.
R v John Early [2002] EWCA Crim 1904 and others, it was
a major Customs and Excise prosecution.
207. It does not infringe subjudice does it?
It is over now?
(Mr Binning) No, it is over, it is a reported case.
It demonstrates the problems which are still existing with disclosure.
208. That is a post 1996 case?
(Mr Binning) Yes, it only arises post 1996, yes. To
deal with the question about defence disclosure, finally, it is
all very well to say the defence should disclose their case but
that does beg, I am afraid, that the prosecution must do the same,
it must be transparent about the material they have gathered during
their investigation. I would say again, also, that if there are
to be further changes in the way the defence statement is drafted,
the prosecution in every case should be required to set out a
pleading, a case statement, which sets out their case. It is important
to remember that does not happen at the moment. The judge may
order it but there is no requirement for the prosecution to do
that. There is such a requirement in serious fraud trials, under
the Criminal Justice Act 1987, where the prosecution can be ordered
to serve a case statement and the defence can be ordered also
to serve one. There is a penalty of adverse comment which can
apply to both the prosecution and the defence at the discretion
of the judge for divergence from that case statement. If this
is to be a true rebalancing of the system there should be a requirement
for the prosecution in every case to nail its colours to the mast,
as the saying goes, and to stand by its case and to take the risk
of adverse criticism from the judge or a defendant if it departs
from its case. That is the way that government wants to go in
the defence so surely the same should apply to the prosecution.
209. Take expert witnesses, am I right in thinking
if the Crown has been to a number of expert witnesses and five
have come up with an inconvenient conclusion and the sixth one
has come up with the "right" answer, the Crown is still
obliged to disclose the other five, is that right?
(Mr Rook) That is right.
(Mr Binning) Yes.
210. That is correct. The defence is not, is
that right?
(Mr Rook) That is right but there are good reasons.
One is privilege because, of course, there may well be privilege
matters covered.
211. Can you elaborate on privilege?
(Mr Rook) Because there may well have been matters
disclosed to the expert which are privileged and the defendant
would have a right not to waiver privilege.
Miss Widdecombe: I do not understand
that.
Mr Cameron
212. Can you give us some examples?
(Mr Rook) Say certain material had been revealed to
the expert which was subject to privilege, material which had
been put together during the preparing of the defence case. I
think there is an authority to confirm this point which if you
give me a moment I can find for you. There is another rather important
practical point, you would risk the growing of a breed of tame
experts because the defence might feel "Well, we cannot go
to an expert unless we know that expert is going to give the view
that we want" and clearly that cannot be desirable.
Chairman
213. Surely what is good for the Crown is good
for the defence. If the defence had been to a series of experts—and
let us face it the defence would have chosen the experts so presumably
they would have gone to one in which they had confidence in the
first place—and this expert had delivered the wrong answer
and they trawled down and eventually found one who gave the right
answer, why should we not know about that? Then we can have a
discussion about the rights and wrongs of it and who is right
and who is wrong. Potentially somebody in the minority can be
right at the end of the day but why should we not have that upfront
on the table?
(Mr Rook) Of course that sounds absolutely right,
I think you are faced with the problem that you will get that
breed of tame experts so you will not be getting the level of
independent expertise that you wish.
Mr Cameron
214. Surely that is a case the prosecution can
make? They can say "You went to the tame experts and look
at our real experts".
(Mr Rook) Quite.
215. Why not have everything out in the court?
Is this not what the Government is getting at about the game of
cat and mouse and the things which our constituents must understand.
Why not allow all the evidence to be brought forward and heard
in the court?
(Mr Rook) It is a relatively minor problem. I think
you will find that there are very few cases where, say, an expert
report is not used and the defence go to another expert.
216. If it is a minor number of cases what more
reason for having it out in the court?
(Mr Binning) I would beg to differ from that again,
I am afraid. The fundamental issue is legal professional privilege
as has been mentioned already. If the defence are not able to
prepare their case with the benefit of privilege then I am afraid
what will happen is defendants in difficult cases—and I
am talking about the kind of case which would cause victims particular
anguish—will dispense with lawyers altogether because they
will lose faith in the system which protects the discussions which
they have with their lawyers before the trial and the preparation
which is done under the protection of legal professional privilege,
they will dispense with their lawyers and conduct cases themselves
which in many cases would not be in the interests of justice or
fairness to anyone necessarily.
Chairman
217. Are we saying, take this privilege point
for a moment, the defendant might disclose a lot of things he
has done but not things he has been charged with and that might
lead him into more trouble down the line?
(Mr Binning) Obviously many things can be discussed
under the protection of privilege. It may be, obviously, that
the defendant gives instructions to his solicitors which are passed
to the expert—and this is at a preparatory stage of the
case—it may be he never actually gives evidence in the trial.
There is no requirement for the defendant to give evidence at
the trial. If his instructions were revealed in the course of
papers from the expert being disclosed then that would infringe
his right to the protection of that information under privilege.
David Winnick
218. Does this not seem to be very much in favour
of the defendant and justifies the Government's view held by so
many people outside the law that justice is not working necessarily
as it should be?
(Mr Binning) Again I would say that this question
of expert evidence and the disclosure of experts reports is an
area which does not, I do not think, cause a significant problem.
We have to realise the defence do have some privileges. There
is the presumption of innocence, there is the duty of the prosecution
to prove its case beyond reasonable doubt. Those are significant
burdens, it is accepted, on the part of the state and those burdens
we would say should remain. If we want to have a different system,
a more inquisitorial system, that is another matter.
Chairman
219. The Crown has to disclose, do they not,
they cannot dip around until they find someone who comes up with
the right answer, can they? You are saying the defence can, why?
(Mr Binning) They can just in the same way as, for
example, the defence might cast around for witnesses, not expert
witnesses but other witnesses. They might take statements from
a great many people just as the prosecution takes statements from
a great many people.
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