Supplementary note from Lord Falconer
of Thoroton, QC following the evidence session on 26 November
2002
CRIMINAL JUSTICE
BILL: ADVANCE
DISCLOSURE OF
DEFENCE WITNESS
LISTS
When I gave evidence to the Committee yesterday
I undertook to consider a suggestion that the Committee put to
me in connection with the provision in the Criminal Justice Bill
that requires the defence to disclose to the prosecution, in advance
of the trial, details of the witnesses that they are likely to
call. Amongst other things, this measure would enable the prosecution
to interview the defence witnesses and so helping to avoid surprise
witnesses and ambush defences.
In response to concerns that the prosecution
might be open to allegations of unduly influencing defence witnesses,
you suggested that if the prosecution wished to interview a defence
witness there should be a rule to require them to invite the defence
to be present at that interview. I undertook to consider this
further and to respond to Committee on this proposal.
I agree that it will be important both to reassure
defence witnesses who may be interviewed by the police or prosecution
and to protect the prosecution from unwarranted allegations of
misconduct by making suitable arrangements for the conduct of
these interviews. I note that this problem is addressed in the
Guide to the Professional Conduct of Solicitors. Therefore for
the purposes of implementing this particular provision, the Government
will consider issuing guidance on the conduct of prosecution interviews
with defence witnesses, including a requirement to offer a defence
legal representative the opportunity to be present, in line with
the Solicitor's Professional Conduct guide. Such guidance would
need to be developed in consultation with all the relevant parties,
including ACPO, the CPS and the Bar and Law Society.
November 2002
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