DISCLOSURE OF THE DEFENDANT'S WITNESSES
(CLAUSE 29)
63. Clause 29 is perhaps the most controversial provision
of Part 5. At present, the defendant is only required to give
advance disclosure of any alibi or expert witnesses.[76]
Clause 29 will extend that obligation significantly by requiring
disclosure of the name, address and date of birth of every
defence witness.
64. The White Paper justifies the reform on the basis
that it will "allow the court and prosecutor to comment adversely
on surprise witnesses".[77]
However, the implications are far wider. Advance notification
of witness lists will give the police time to interview the witness
and to check any criminal records (a point which may be used in
cross-examination to discredit the witness).[78]
65. In a recent article, Michael Zander QC has set
out a powerful argument against the proposal:
"If addresses of potential defence witnesses
had to be given, the obvious danger is that the police would use
the interview to browbeat, cajole or wheedle the witness to change
his evidence or, failing that, not to testify for the defence".[79]
66. It is not too difficult to imagine ways in which
the police may seek to help a defence witness to 'refresh his
memory', or possibly to 'lose' his memory of events.[80]
Such things have happened in the past. During our recent inquiry
into the conduct of investigations into abuse in children's homes,
we came across a number of cases in which the police were said
to have brought charges against a defence witness before trial,
in order to discredit him.
67. In his article, Michael Zander compares the proposed
obligation on the defence with that which already exists on the
prosecution. He states that prosecution witness statements are
served on the defence without addresses. This reduces the
risk of defence intimidation of prosecution witnesses, by requiring
the defence to go through the prosecution in order to make contact
with witnesses. Where defence solicitors wish to interview prosecution
witnesses, they are advised, by their professional code of conduct,
to offer to interview the witness in the presence of the prosecution.[81]
As Zander states:
"If that danger is thought to exist in the
interviewing of witnesses for the [prosecution] by solicitors,
it is obvious that it exists in regard to interviews carried out
by police officers".[82]
68. When we put this point to the Minister, he conceded
that there were "risks both ways". He told us:
"I can see no reason why that sort of provision
should not apply in relation to the CPS, or somebody on their
behalf, which would include the police, interviewing a witness
where the defence have given their name to the prosecution. I
think we need to look to see how we could ensure that might happen...so
there is equality of arms both ways".[83]
69. If the defendant is to be required to disclose
witnesses in advance, then we believe that the defence should
be entitled to the same safeguards that exist to protect prosecution
witnesses. We welcome the Minister's conclusion that the "same
sort of approach should apply to ensure equality of arms both
ways".
70. However, the Minister argued that he was not
sure it would be appropriate to include such a provision in the
Bill. He suggested that the "same sort of approach"
be taken towards the prosecution, as applies to the defence (ie
that the provision be included in a code of practice).[84]
The Minister subsequently wrote to us, confirming that:
"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".[85]
71. We recommend that the Bill be amended so that,
where the prosecution wish to interview a defence witness in advance
of trial, they should be required to notify the defence and offer
to interview the witness in the presence of the defence. We further
suggest that any interview be tape-recorded.
72. We would prefer to see a provision of this
nature be included in the Bill, rather than left to codes of practice.
Arguably, defence witnesses require extra protection to ensure
equality in this context. In contrast to most defendants, the
police and prosecution have vast resources at their disposal with
which to apply pressure to defence witnesses, if minded to do
so.
Advance notice of (unused) experts
(Clause 30)
73. In the White Paper, the Government proposed to
impose a further obligation on the defence to disclose unused
expert reports.[86]
This was strongly criticised, particularly by the legal profession
who had concerns about possible breaches of legal professional
privilege and the privilege against self-incrimination.[87]
74. We welcome the Government's decision to narrow
its original proposal to require defendants to disclose unused
expert reports. Under Clause 30, defendants will only be
required to disclose the name and address of experts instructed
by him for possible use at trial. We have no difficulty in principle
with the revised proposal, as it is less likely to raise issues
of privilege.
75. However, we were left wondering what problem
the Government was seeking to address by this reform. John Burbeck,
the ACPO lead on criminal justice matters, argued that it was
necessary to enable the prosecution "to establish just how
expert they [ie the unused experts] are compared to the
other experts [eg those subsequently instructed by the
defence]".[88]
We understand, however, that the prosecution can already attack—through
cross-examination—the credentials of the defence expert
who does give evidence. The Minister, on the other hand,
said that it would allow the prosecution to question the defendant's
unused experts and establish their views on the matter in issue.
It would also allow the judge to pass comment.[89]
76. We were told by a number of witnesses that it
is very rare that the defendant would instruct a string
of experts because of the constraints imposed by the Legal Services
Commission.[90]
However, the Minister told us that this was not the case in relation
to "well financed defendants", for example, in cases
of organised crime.
77. When we asked the Minister how this could be
enforced, he said:
"There would be little or no sanction in
practice...".
"In terms of the actual trial, if [defence solicitors]
had deliberately or negligently failed to identify the names of
all experts and the trial has taken place then there is not much
that can be done about that in the context of the trial".[91]
78. While we accept the need for Clause 30, we
are not convinced that the measure will work in practice.
75 Metropolitan Police, Metropolitan Police Service
Response to the White Paper on Criminal Justice, "Justice
for All", October 2002, p 9. Back
76
Criminal Procedure and Investigations Act 1996, s 5(7) and the
Crown (Advance Notice of Expert Evidence) Rules 1987 (for which
there are corresponding rules for magistrates' courts). Back
77
Justice for All, Cm 5563, para 3.57. Back
78
See for example Q 71, John Burbeck. Back
79
Michael Zander QC, 'Advance Disclosure', Solicitors Journal,
20 September 2002, p 824. Back
80
Q 241, Rodney Warren. Back
81
Solicitors Journal, 20 September 2002, p 824. Back
82
Ibid. Back
83
Qq 344, 345, 349. Back
84
Qq 345-349. Back
85
Letter to the Chairman from Lord Falconer of Thoroton QC, received
27 November 2002. Back
86
Justice for All, Cm 5563, para 3.57. Back
87
See for example the responses to the Government's White Paper
from the Criminal Bar Association/Bar Council and JUSTICE. Back
88
Q 79. Back
89
Q 352. Back
90
Qq 224, 225. See also the article by Michael Zander QC, Solicitors
Journal, 20 September 2002, p 824. Back
91
Qq 354-355. Back
