Disclosure of Evidence (Hansard, 15 June 1992)

§ 29. Mr. Bennett
To ask the Attorney-General if he will make a statement on the rules on disclosure of evidence in criminal cases.

§ 30. Mr. Mullin
To ask the Attorney-General if he will make a statement on the guidelines governing disclosure in criminal cases.

§ The Attorney-General (Sir Nicholas Lyell)
Law and practice on disclosure have developed substantially in recent years, both before and since the Attorney-General's guidelines in 1981. In their evidence to the royal commission, the Law Officers have recommended that the rules on disclosure be given statutory force based on fairness and practicability.

§ Mr. Bennett
I thank the Attorney-General for that reply. However, given that the police and prosecutors—some of them now in high places—appeared in the past to conceal evidence that was inconvenient to them, what will the Attorney-General and the Government do to restore public confidence that there will be full disclosure and justice? In trying to restore public confidence, will he assure us that the May inquiry will be completed and that it will not be gagged by some of those same people in high places?

§ The Attorney-General
While I do not know of any evidence of a conspiracy by prosecutors in high places, there are lessons to be learnt from recent cases. I believe that if we have a statutory framework along the lines of the evidence that my prodecessor and I have submitted to the royal commission we shall make progress in overcoming those serious problems.

§ Mr. Mullin
Has not the suppression of inconvenient evidence by the Director of Public Prosecutions been a feature of all recent major miscarriages of justice? If the Attorney-General has read the judgment in the Judith Ward case he will see that the judges said that the DPP's attitude towards disclosure, about which the court questioned her several times, remained "opaque to the end"? Will the Attorney-General make that attitude less opaque?

§ The Attorney-General
As I have already said, there are lessons to be learnt from the Judith Ward case, among others. I do not accept some of the ways in which the hon. Gentleman has put them, but the lessons involve prosecutors, those who assist them, the police and those who present cases. The essential factor is fairness and competence so that people know what to disclose and that they do so in a way which makes it properly useful to the defence.

§ Mr. Garnier
Will my right hon. and learned Friend give the House an idea of the timing involved in the introduction of any statutory application of the rules on disclosure? Does he accept that statutory applications will enable all parties involved in the criminal process to understand where their duties lie and thus know exactly where they stand?

§ The Attorney-General
My hon. Friend makes an important point. Unless people understand what is expected of them, it is much easier to fail to do so, without malice underlying that failure. The royal commission is to report in approximately a year's time. It will then be necessary to consider carefully what it recommends, but, against that time scale of a year to report, it should be possible to judge roughly how long it will take.

§ Dame Elaine Kellett-Bowman
In considering disclosure of evidence, will my right hon. Friend balance the matter by abolishing the right to silence?

§ The Attorney-General
One of the recommendations put forward by a number of people, including my predecessor and me, is that to achieve a fair trial from everybody's point of view there should be wider disclosure, subject to safeguards, by the defence of their case as well as by the prosecution of theirs. That is more likely to lead to justice, which requires not only that the innocent should not be convicted but that the guilty should be convicted.

§ Mr. Fraser
Will the right hon. and learned Gentleman do three things? First, will he amend the Attorney-General's guidelines so that unused evidence is always supplied to the defence, unless withheld with the consent of the trial judge on public interest grounds? Secondly, will he seriously consider the judicial supervision of investigation in serious criminal offences? Thirdly, will he now try to ensure that, alongside the prosecution, the defence always has equal access to forensic facilities?

§ The Attorney-General
The hon. Gentleman's third point is well taken. As for his first two points, it would not be appropriate to seek to amend the guidelines as a formal act prior to the report of the royal commission. On judicial supervision, if the hon. Gentleman is referring to something like an investigating magistrate system, that would be an enormous step to take in our system and we must await the royal commission's report. However, there are recommendations for more court involvement in disclosure in the evidence that I and my predecessor have given.

§ Mr. David Martin
Will my right hon. and learned Friend confirm that, in the early 1970s when I was practising, it was a matter of honourable practice that barristers disclosed evidence, even if it was against their interests as prosecutor? Anybody not doing so would be considered a dishonest practitioner. Is that not still the position at the Bar and should not anyone discovered behaving dishonestly be disbarred?

§ The Attorney-General
The answer to my hon. Friend's question is yes. Anybody caught acting dishonourably should be disbarred. However, there is more to it than honourable practice. One must also have a definite practice and, as my hon. Friend knows, practice has changed considerable since the early 1970s. Following the Confait case, changes were made and then the Attorney-General's guidelines were introduced. Those have been developed in common law. I agree with my hon. Friend's first point.