House of Lords
Session 1997-98
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Judgments -- Regina v. Brown


  Lord Goff of Chieveley  Lord Slynn of Hadley   Lord Hope of Craighead
  Lord Clyde   Lord Hutton





ON 24 JULY 1997


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. For the reasons he gives I would dismiss the appeal.


My Lords,

     The issue in this appeal relates to the duty of the prosecutor at common law to disclose information to the defence. The common law is relevant to this case because the appellant was convicted of his offence on 18th June 1993. As regards things falling to be done after 1 April 1997 the rules as to the disclosure of material by the prosecutor are those set out in Part I of the Criminal Procedure and Investigations Act 1996. Section 21(1) of that Act provides that the rules of common law do not apply as regards things falling to be done after that time in relation to the alleged offence. But they continue to apply to all cases where the steps described in section 1 of the Act of 1996 were taken before 1 April 1997 with a view to proceedings against the defendant in a summary trial or on indictment. So the particular issue which we have to consider in this case is still one of general public importance, notwithstanding the coming into force of that Act. It is whether the Crown is under a legal duty to disclose material which is relevant only to the credibility of defence witnesses.

     The appellant was convicted on 18 June 1993 in the Crown Court at Manchester before the Recorder of Manchester, Judge Rhys Davies Q.C., of wounding with intent to do grievous bodily harm, contrary to section 18 of the Offences against the Person Act 1861. He was sentenced to eight years imprisonment. The judge gave leave to appeal against the conviction. On 20th May 1994 the Court of Appeal (Criminal Division), Steyn L.J., Owen and Ian Kennedy JJ., dismissed the appeal, for reasons which were set out in a judgment which was delivered on 15th June 1994 ([1994] 1 W.L.R. 1599). The Court of Appeal certified that a question of general public importance was involved in the decision, namely whether there was a duty to disclose material which was relevant only to the credibility of defence witnesses, but they refused leave to appeal. On 16 April 1996 leave to appeal from the decision of the Court of Appeal was given by your Lordships&!!; House. This appeal was heard together with the appeals in Reg. v. Mills and Reg. v. Poole, which are concerned also with the common law duty of disclosure by the prosecutor. The issue in those appeals, although related to that which has to be decided in this case, is a different one and it has been dealt with by your Lordships in a separate judgment. I wish to deal in this speech only with the particular issue with which this case is concerned.

The Facts

     In the early hours of 5 July 1992 inside a social club in Moss Side, Manchester, a young woman named Michelle Patrick was stabbed in the leg by a man with a knife or machete. She sustained a deep penetrating wound from which she nearly died and which has left her with a permanent disability. The issue at the trial was whether the person who stabbed her was the defendant. The Crown case against him was based on the evidence of two witnesses, Michelle Patrick and her friend Selina Rankine. They said that they both knew the defendant and that he had stabbed Michelle Patrick inside the club. There was a background of friction between the defendant and Michelle Patrick. The defendant had been wounded in an earlier shooting incident. Michelle Patrick&!!;s boyfriend had been charged with that offence, but he was acquitted. On 5 July 1992, according to the Crown witnesses, Michelle Patrick was attacked by the defendant and another man named Edwards in a car park outside the club. She went inside and telephoned the police. Selina Rankine then joined her and they both went outside. The defendant and Edwards, who were armed respectively with a blade and a truncheon, chased Michelle Patrick back into the club where, according to Michelle Patrick, the defendant stabbed her. Selina Rankine said that she saw the defendant running into the club waving the weapon and she then saw that Michelle Patrick was wounded. It was put to these two witnesses in cross-examination that they were lying and that they were inspired by motives of hostility towards the defendant arising from the previous shooting incident.

     The defence case was an alibi, of which the defendant had given notice as required by section 11 of the Criminal Justice Act 1967. The defendant gave evidence on his own behalf, and he called a number of witnesses to support his alibi. He said that on the night in question he was at a party which had been organised by a Mrs. Morris. It was held about five minutes drive away from the club. Mrs. Morris and her daughter Michelle Morris both said that the defendant was at the party at the relevant time. Edwards--the other man who was said to have been involved in the attack on Michelle Patrick--also supported the alibi. Two other witnesses were called for the defence. It is their evidence which has given rise to the question in this appeal.

     The first was a man named Lawrence Gordon. He was the boyfriend of Michelle Morris, the daughter of Mrs. Morris. He said that he took the defendant to the party at Mrs. Morris&!!;s house at 9.30 p.m. staying until 4.00 a.m., and that they did not leave in the course of the evening. It was put to him in cross-examination that he had been spoken to by a police officer about the defendant&!!;s whereabouts at the time of the offence and that he had told him that he was too drunk to recall. He accepted that he may have said this, but he explained that he would have done so to get rid of the police.

     The other was a man named Seaburt Pinnock. He had originally given a statement to the police in which he had directly implicated the defendant in the earlier part of the attack on Michelle Patrick. Subsequently he told the police that he wished to withdraw his statement as he was no longer willing to assist the Crown. His statement was then withdrawn from the committal file. It was however served on the defence. The defendant&!!;s solicitor interviewed him, and he was called to give evidence for the defence at the trial. This was done in the knowledge of his earlier statement to the police. Pinnock gave evidence to the effect that he did not see the earlier part of the incident, but that he did see the two attackers in the club. He said that the defendant was not one of the two attackers. It was put to him in cross-examination that when he had called at the police station to withdraw his statement he had said that he was doing so because he had received threats. He accepted that he had mentioned threats, but he said that he had ignored them and that he had wanted to withdraw his statement because it was
The Issues in the Court of Appeal

     At the hearing of the appeal three grounds of appeal were pursued. The first ground related to the evidential status of Pinnock&!!;s statement to the police in which he had implicated the defendant in the stabbing. The Court of Appeal held that this matter had been dealt with adequately by the judge in his summing up, and the point has not been raised again in this appeal. The other two grounds raised issues of non-disclosure concerning the evidence of the defence witnesses Gordon and Pinnock. The complaint was made that the Crown had failed to disclose information to the defence which tended to reflect on the credibility of these two witnesses. In Gordon&!!;s case this was that he had told the police that he was drunk and was thus unable to comment on the defendant&!!;s alibi. In Pinnock&!!;s case it was that when he withdrew his statement implicating the defendant he told the police that he had been threatened. Counsel argued that this information was relevant to the credibility of material witnesses and disclosable, in the same way as information relating to the credibility of witnesses called by the Crown, such as their previous convictions, was disclosable. He submitted that non-disclosure of this information amounted to a material irregularity in the course of the trial, rendering the conviction unsafe and unsatisfactory.

     Much of the discussion in the Court of Appeal was taken up with an examination of the Attorney-General&!!;s Guidelines of 1981 which Crown Counsel said protected the information from disclosure: see Practice Note (Criminal Evidence: Unused Material) [1982] 1 All E.R. 734. But, as Steyn L.J. explained [1994] 1 W.L.R. 1599, 1604F-1606C, time has moved on since these guidelines were issued. They served a useful purpose in the past, but they did not have the force of law and their value as a set of instructions to prosecutors has largely been eroded by major legal developments regarding the common law duty of disclosure. It is not necessary to dwell on this aspect of the case. In practice, no doubt as a result of Steyn L.J.&!!;s carefully worded criticisms, the 1981 Guidelines are no longer relied on by prosecutors. They no longer appear in the current edition of Archbold&!!;s Criminal Pleading, Evidence and Practice, and Mr. Shorrock for the Crown did not seek to resurrect this part of the argument. So I can concentrate on the common law duty of disclosure which, as Steyn L.J. said, at p. 1606C-D, provides the framework of the rules which govern disclosure by the Crown.

The Common Law Duty of Disclosure

     The rules of disclosure which have been developed by the common law owe their origin to the elementary right of every defendant to a fair trial. If a defendant is to have a fair trial he must have adequate notice of the case which is to be made against him. Fairness also requires that the rules of natural justice must be observed. In this context, as Lord Taylor of Gosforth C.J. observed in Reg. v. Keane [1994] 1 W.L.R. 746, 750G, the great principle is that of open justice. It would be contrary to that principle for the prosecution to withhold from the defendant material which might undermine their case against him or which might assist his defence. These are the rules upon which sections 3 and 7 of the Criminal Procedure and Investigations Act 1996 have been based. But they had already found their expression in decisions by the courts. It is necessary to mention only a few of them in order to identify the extent of the duty of disclosure, and to trace its development, as background to the issue which arises in this case.

     In Dallison v. Caffery [1965] 1 Q.B. 348, 369 Lord Denning M.R. described the duty of the prosecution in these terms:

     "The duty of a prosecuting counsel or solicitor, as I have always understood it, is this: if he knows of a credible witness who can speak to material facts which tend to show the prisoner to be innocent, he must either call that witness himself or make his statement available to the defence. It would be highly reprehensible to conceal from the court the evidence which such a witness can give. If the prosecuting counsel or solicitor knows, not of a credible witness, but a witness whom he does not accept as credible, he should tell the defence about him so that they can call him if they wish. Here the solicitor, immediately after the court proceedings [for committal before the magistrates], gave the solicitor for the defence the statement of Mr. and Mrs. Stamp; and thereby he did his duty."

In the same case, at p. 375G, adopting the words of Lord Goddard C.J. in Rex v. Bryant and Dickson (1946) 31 Cr.App.R. 146, Diplock L.J. observed that the proposition that it is the duty of the prosecution to place before the court all the evidence known to him, whether or not it is probative of the guilt of the accused person, was erroneous. It is clear, then, that in his view the principle of open justice did not extend that far. As he put it:

     "A prosecutor is under no such duty. His duty is to prosecute, not to defend. If he happens to have information from a credible witness which is inconsistent with the guilt of the accused, or, although not inconsistent with his guilt, is helpful to the accused, the prosecutor should make such witness available to the defence."

I do not need, for the purposes of this case, to examine these dicta--which are not wholly consistent with each other--in greater detail. The important point to notice is that no issue was raised in that case about the withholding of information relevant only to the credibility of defence witnesses. The plaintiff, whose action for damages for malicious prosecution, had put forward a defence of alibi. The statement which the police had obtained from Mr. and Mrs. Stamp supported his alibi. This was information in the hands of the prosecutor which might have assisted the defence case on an issue of fact which was relevant to the plaintiff&!!;s guilt or innocence.

     In Reg. v. Ward [1993] 1 W.L.R. 619, 645F-H, Glidewell L.J., delivering the judgment of the court, adopted the words of Lawton L.J. in Reg. v. Hennessy (Timothy) (1979) 68 Cr.App.R. 419, 426, where he said: 

     "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."

He went on to observe:

     "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."

The effect of that decision was to widen the scope of the duty. But the instances of non-disclosure with which it was concerned related mainly to scientific evidence which had been obtained during the process of investigation. Although evidence relating to the appellant's mental state had also been withheld, none of the information related only to the credibility of defence witnesses. Glidewell L.J. explained the rules of disclosure which were relevant to the case at p. 674A-B in this way:

     "An incident of a defendant&!!;s right to a fair trial is a right to timely disclosure by the prosecution of all material matters which affect the scientific case relied on by the prosecution, that is, whether such matters strengthen or weaken the prosecution case or assist the defence case. This duty exists whether or not a specific request for disclosure of details of scientific evidence is made by the defence."

     In Reg. v. Keane [1994] 1 W.L.R. 746 the court was concerned with the problems which arise when a trial judge is invited by the defence to order disclosure of documents and is invited by the Crown in the public interest to refuse such disclosure. After noting that the court must then conduct a balancing exercise, Lord Taylor of Gosforth C.J. said, at pp. 751-752D: 

     "If the disputed material may prove the defendant&!!;s innocence or avoid a miscarriage of justice, then the balance comes down resoundingly in favour of disclosing it.

     "But how is it to be determined whether and to what extent the material which the Crown wish to withhold may be of assistance to the defence?

     "First, it is for the prosecution to put before the court only those documents which it regards as material but wishes to withhold. As to what documents are 'material' we would adopt the test suggested by Jowitt J. in Reg. v. Melvin (unreported), 20 December 1993. The judge said:

     'I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2).'"