Criminal Trials: Disclosure of Information (Hansard, 20 May 1992)

§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, the common law duty to disclose relevant information to the defence was supplemented in 1981 by the issue of the Attorney-General's Guidelines on Disclosure of Unused Material. Their application has been interpreted by the courts, which require that they be applied by all prosecutors. The Attorney-General has no present intention to issue fresh guidelines. The Crown Prosecution Service and the police are presently reviewing procedures to ensure that the existence of all material which may, having regard to recent judicial decisions, fall within the guidelines is notified to the prosecutor.

§ Viscount Hanworth
My Lords, I thank the noble and learned Lord for his reply. However, does he agree that, certainly in my youth, when barristers were 600 acting for the prosecution they were given two criteria? First, if possible they had to obtain a conviction. Secondly, they had to see that justice was done. Does the noble and learned Lord agree that, as a result of what has happened in recent years, it is time that the Bar be reminded of that ethic?

§ The Lord Chancellor
My Lords, I am happy to think that the objectives which motivated the noble Viscount in his youth are still the objectives which motivate counsel acting for the prosecution. However, there have been some developments in that time, in particular the issue of the guidelines by the Attorney-General. That has helped counsel for the prosecution in a more detailed way than the general principles themselves would.

§ Lord Mishcon
My Lords, while appreciating everything that the noble and learned Lord said so correctly, does he agree that the problem in regard to the matter raised by the Question is the way in which practice in fact differs in various areas of the country? Is not the problem that one has to rely upon the police giving information to the Crown Prosecution Service, the Crown Prosecution Service giving the information to prosecuting counsel and the prosecuting counsel passing it over to the defence? Has the noble and learned Lord considered the suggestion of the Law Society by way of evidence to the Royal Commission; that is, if there were an instruction that the police give everything over to the Crown Prosecution Service, we would achieve both uniformity and justice?

§ The Lord Chancellor
My Lords, the point that the noble Lord, Lord Mishcon, raises is covered by the last sentence of my original Answer which is: The Crown Prosecution Service and the police are presently reviewing procedures to ensure that the existence of all material which may, having regard to (relevant) recent — decisions, fall within the guidelines is notified to the prosecutor". The weakness to which the noble Lord refers as a possible example of variation throughout the country is that particular weakness; namely, that the prosecutor does not always get all the information that he may require from the authorities who are seeking to help him. There are practical difficulties about the definition of all that may be relevant. In a sense to hand over everything is a very tall and difficult order to comply with in practice. We have to try to give practical advice about what should be handed over.

§ Lord Hailsham of Saint Marylebone
My Lords, does my noble and learned friend agree that the prime responsibility for disclosing all relevant information to the defence rests with the prosecution and that it is not constitutionally primarily a responsibility of executive government? Does he further agree that the responsibility is that of the Crown Prosecution Service and the Attorney-General's function as such?

§ The Lord Chancellor
My Lords, I certainly agree with my noble and learned friend that the responsibility is on the prosecutor. The matter referred to by the noble Lord, Lord Mishcon, is that of the difficulty of the prosecutor complying with that 601 obligation if he or she does not receive the information from the police. That is the problem which we are addressing. Having got possession of the information, the responsibility to hand it over lies with the prosecutor. That is an obligation for which the Attorney-General is answerable. He has the responsibility. When I speak on behalf of Her Majesty's Government on these matters I am acting for the Attorney-General.

§ Lord Hylton
My Lords, is not the urgency and the importance of this matter clearly shown by cases which are currently before the Court of Appeal both in Northern Ireland and in England? I refer to the cases of Miss Ward and the four soldiers of the Ulster Defence Regiment. Does the noble and learned Lord agree that those cases show that governmental action is needed in the interests of justice and in order to prevent people being held after conviction for many years and when they have reason to appeal?

§ The Lord Chancellor
My Lords, it would obviously be quite inappropriate for me to comment on cases presently before the courts. It is perfectly correct that the Attorney-General is a Member of the Government and that he is also the Attorney-General for Northern Ireland. He carries this responsibility as Attorney-General and it is one which he does not share with the rest of the executive government. I have no doubt whatever that my right honourable and learned friend the Attorney-General seeks to promote fairness in prosecutions in this as well as in every other aspect of his responsibilities.

§ Lord Hooson
My Lords, does the noble and learned Lord agree that the practical problem which so often arises is that prosecuting counsel has put before him the relevant evidence for the prosecution, but relevant evidence for the defence may be totally different? Does he further agree that that evidence sometimes does not appear before prosecuting counsel at all?

§ The Lord Chancellor
My Lords, for a long time —I believe that this will go back to the days referred to by the noble Viscount, Lord Hanworth—it has been incumbent on the prosecution to consider handing over certain unused material—that is to say, material which the prosecution does not believe to be relevant for the promotion of its case—to the defence so that it may consider whether or not it is appropriate for the defence to use that material. One of the practical difficulties is to identify all the material which may be relevant to either side. Of course the police who are assisting the prosecution necessarily have their attention focused primarily on their point of view. However, it is part of the responsibility of the police, which is emphasised in the guidelines in the work to which I have referred, to bring to the attention of the prosecutor the other information which may be relevant to the defence.

§ Lord Harmar-Nicholls
My Lords, is my noble and learned friend aware that one message that comes from the exchanges which we have just heard seems to give the impression that here again we are accusing the 602 police of being inadequate? In view of the restrictions which Parliament has put on the police, does my noble and learned friend consider that that is a fair view?

§ The Lord Chancellor
My Lords, I am sorry if my noble friend feels that any part that I have played in these exchanges suggests that the police are inadequate. The situation is quite the contrary. It is a very difficult decision for a prosecutor or a person engaged in support of the prosecution to take. It is the very difficulty of the decision which I believe emphasises the need for the 1981 guidelines and now some further work to ensure that all relevant material is collected. The police need help in this matter and that is what is being referred to.