R v Mills; R v Poole

All England Law Reports/1997/Volume 3 /R v Mills; R v Poole – [1997] 3 All ER 780

[1997] 3 All ER 780

R v Mills; R v Poole

HOUSE OF LORDS

LORD GOFF OF CHIEVELEY, LORD SLYNN OF HADLEY, LORD HOPE OF CRAIGHEAD, LORD CLYDE AND LORD HUTTON OF BRESAGH

8, 9, 10 APRIL, 24 JULY 1997

 

Criminal evidence – Prosecution evidence – Disclosure of information to defence – Disclosure of witness statements – Non-disclosure of statements made by possible witness which prosecution decides not call – Prosecution deciding not to call witness considered not to be credible, but refusing to release to defence witness’s statements to police – Whether non-disclosure of statements a material irregularity – Whether non-disclosure making conviction unsafe – Criminal Appeal Act 1968, s 2(1).

 

The two defendants were charged with the murder of the deceased who died following a fight in a room. There were two other persons present in the room at the time: S, who was the main prosecution witness at the defendants’ trial and gave evidence that the first defendant had hit the deceased with a crowbar and the second defendant had stabbed him with a knife; and J, who made two statements to the police. In his first statement, J stated that the deceased had been looking for a fight and had provoked the first defendant, who had then fought with the deceased and given him a severe beating with the crowbar. He made no reference to the second defendant. In his second statement, he stated that the second defendant had also been involved and had stabbed the deceased several times; but he later retracted that statement, claiming that it had been made under police pressure. The prosecution case at the trial in 1990 was that the defendants had attacked the deceased and inflicted injuries which caused him to die shortly after. The first defendant’s defence was that he had acted in self-defence; and the second defendant’s defence was that he had not taken part in the assault. The prosecution informed the defence that J would not be called as a witness, but refused to disclose his statements to the defence. The defence interviewed J but decided not to call him. The defendants were convicted. They appealed on the grounds, inter alia, that the failure of the prosecution to disclose J’s two statements was a material irregularity which rendered the convictions unsafe. The Court of Appeal dismissed their appeals. The defendants appealed to the House of Lords, where the question arose whether the position was affected by the amendment in 1995 of s 2(1)^a of the Criminal Appeal Act 1968 abolishing material irregularity as a statutory ground of appeal and replacing it with a sole ground for allowing an appeal, namely that the conviction was unsafe.

 

^a     Section 2(1) as amended is set out at p 790 a to d, post

 

Held – Although material irregularity in the course of a criminal trial was no longer a separate statutory ground for allowing an appeal, it was still appropriate to consider whether a failure by the prosecution to disclose material to the defence constituted a material irregularity and, if so, whether it had caused the conviction to be unsafe, since there was no real distinction between a material irregularity which caused a miscarriage of justice and a feature of the trial which

[1997] 3 All ER 780 at  781

caused a conviction to be unsafe. Under the rule applying in 1990, which merely required the prosecution to inform the defence of a witness whom it did not consider to be credible, the non-disclosure of J’s statement did not constitute a material irregularity; that rule should no longer be followed, since it could lead to injustice, eg if the witness refused to be interviewed by the defence. However, under the current rules, the non-disclosure of J’s statements was a material irregularity; nevertheless it did not make the convictions unsafe, since any prejudice arising from such non-disclosure had largely been eliminated by the contents of the two statements being made known to the defendants when the police questioned them and by their solicitor’s own interview with J, and J’s evidence if he had been called at the trial would not have assisted the defence. The appeals would therefore be dismissed (see p 782 c to f, p 790 d e, p 791 d to h, p 793 b to d, p 796 d, p 797 j, p 798 d to g and p 799 d to f, post).

 

R v Maguire [1992] 2 All ER 433, R v Stinchcombe (1991) 68 CCC (3d) 1 and dictum of Lord Taylor CJ in R v Davis [1993] 2 All ER 643 applied.

 

R v Bryant and Dickson (1946) 31 Cr App R 146 overruled.

 

R v Ward [1993] 2 All ER 577 doubted in part.

 

Notes

For the duties of prosecuting counsel, see 3(1) Halsbury’s Laws (4th edn reissue) para 476.

 

For the Criminal Appeal Act 1968, s 2, see 12 Halsbury’s Statutes (4th edn) (1997 reissue) 375.

 

Cases referred to in opinions

Dallison v Caffery [1964] 2 All ER 610, [1965] 1 QB 348, [1964] 3 WLR 385, CA.

R v Brown [1995] 1 WLR 1599, CA; affd [1997] 3 All ER 769, HL.

R v Bryant and Dickson (1946) 31 Cr App R 146, CCA.

R v Davis [1993] 2 All ER 643, [1993] 1 WLR 613, CA.

R v Hennessey (1978) 68 Cr App R 419, CA.

R v Keane [1994] 2 All ER 478, [1994] 1 WLR 746, CA

R v Lawson (1989) 90 Cr App R 107, CA.

R v Leyland Magistrates, ex p Hawthorn [1979] 1 All ER 209, [1979] QB 283, [1979] 2 WLR 28, DC.

R v Maguire [1992] 2 All ER 433, [1992] QB 936, [1992] 2 WLR 767, CA.

R v Paraskeva (1982) 76 Cr App R 162, CA.

R v Russell-Jones [1995] 3 All ER 239, CA.

R v Seymour [1996] Crim LR 512, CA.

R v Stinchcombe (1991) 68 CCC (3d) 1, Can SC.

R v Ward [1993] 2 All ER 577, [1993] 1 WLR 619, CA.

R v Williams (15 April 1994, unreported), CA.

Appeal

The defendants, Gary Mills and Anthony Poole, appealed with leave granted by the Appeal Committee against the decision of the Court of Appeal (Criminal Division) (Otton LJ, Ian Kennedy and Keene JJ) delivered on 16 April 1996 dismissing their appeal against their conviction on a charge of murder in the Crown Court at Bristol on 26 January 1990 before Swinton Thomas J and a jury. In dismissing the appeal, the Court of Appeal certified that a question of law of general public importance (set out at p 789 g h, post) was involved in the decision. The facts are set out in the opinion of Lord Hutton of Bresagh.

[1997] 3 All ER 780 at  782

Michael Mansfield QC and Vera Baird (instructed by Robert Blackford & Co, Croydon) for the defendant Mills.

 

Michael Mansfield QC and Gordon Ross (instructed by Robert Blackford & Co, Croydon) for the defendant Poole.

 

Paul Chadd QC and Nicholas Hilliard (instructed by the Crown Prosecution Service Headquarters) for the Crown.

 

Their Lordships took time for consideration.

24 July 1997. The following opinions were delivered.

 

LORD GOFF OF CHIEVELEY.

My Lords, I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Lord Hutton of Bresagh. I agree with it, and for the reasons which he gives I would dismiss both appeals.

 

LORD SLYNN OF HADLEY.

My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Hutton of Bresagh. For the reasons he gives I too would dismiss the appeals.

 

LORD HOPE OF CRAIGHEAD.

My Lords, I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Lord Hutton of Bresagh. I agree with it, and for the reasons which he gives I would dismiss both appeals.

 

LORD CLYDE.

My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Hutton of Bresagh. For the reasons he gives I would dismiss the appeals.

 

LORD HUTTON OF BRESAGH.

My Lords, the issue of law which arises for decision on these appeals is whether the Crown is under a duty to provide to the defence copies of statements made by a person who has witnessed acts of violence in respect of which the two accused have been charged, where counsel for the Crown has reasonably decided that the witness is not a witness of truth and will seek to depart from, or contrive an explanation for, those statements if the witness is called as a witness for the defence, or whether the duty of the Crown is limited to furnishing only the name and address of the witness for the defence.

 

The two defendants were convicted on 26 January 1990 in the Crown Court at Bristol before Swinton Thomas J and a jury of the murder of Hensley Hendrix Wiltshire on the night of 5-6 January 1989 and were sentenced to imprisonment for life. In February 1996 the Court of Appeal (Criminal Division) (Otton LJ, Ian Kennedy and Keene JJ) granted extension of time and leave to appeal against conviction to the two defendants. The appeals were then heard and were dismissed on 16 April 1996. The Court of Appeal certified that a point of law of general public importance was involved in the decision to dismiss the appeals, but refused leave to appeal. On 5 March 1997 leave to appeal was granted by your Lordships’ House. The appeals were heard together with the appeal in R v Brown [1997] 3 All ER 769, which also related to the Crown’s duty of disclosure but where a different point of law arose which is dealt with by your Lordships in a separate judgment.

[1997] 3 All ER 780 at  783

 

The facts

On the night of 5-6 January 1989 four men were in the room of the defendant Poole in a house at 34 Conduit Street, Gloucester. They were the defendant Poole, the defendant Mills, a man named Ian Christopher Juke and a man named Hensley Hendrix Wiltshire. The defendants and Juke were friends. Shortly before midnight a young woman named Kimberley Stadden came to the room in order to get some amphetamine, and in the room she obtained some amphetamine from Juke. Whilst she and the four men were present in the room Wiltshire sustained very serious injuries. After sustaining those injuries he was taken out of the room and left on the pavement outside the house. An ambulance was sent for and arrived at 12.22 am on 6 January and took Wiltshire to Gloucester Royal Hospital. In the hospital he was examined by a senior house officer who found him to be confused, semi-conscious and unco-operative. The doctor observed some 16 wounds on his arms, legs and face, including ovoid injuries to his lower legs. By reason of Wiltshire’s unco-operative attitude the doctor was unable to suture or to record all his wounds. In the hospital a kitchen-type knife was found tucked down one of his socks. Wiltshire refused to stay in hospital and was therefore discharged at 4.30 am into police custody as the Metropolitan Police had requested the police in Gloucester to detain him in respect of an alleged offence in London.

 

Shortly after his arrival at Gloucester police station, Wiltshire was seen by a police doctor who expressed the view that he should return to hospital, which he agreed to do. At the hospital he received further treatment before being discharged a second time into police custody and he was placed in a cell in the police station. He later collapsed in the cell and an ambulance was called and he was taken back to hospital, where he died between 2.30 pm and 3.30 pm on 6 January.

 

A Home Office pathologist carried out a post-mortem examination on the body of Wiltshire on the evening of 6 January and found the following injuries. There were a number of injuries to the head which could have been caused by a crowbar. There were 17 stab wounds, 13 of them in the pelvic area. There were also ovoid wounds, two on each shin, which could not have been caused either by a knife or by a crowbar, and it was the opinion of the pathologist that they were caused by some object the shape of a drill. There were three fractures of the ribs on the left side and the left fibula was also fractured. The medical evidence called by the Crown at the trial was that the injuries sustained by Wiltshire caused his death because they so damaged his muscles and bones that fatty material entered into the bloodstream and led to embolisms which brought about his death.

 

It was the Crown case that both defendants had attacked Wiltshire in the room, Mills with a crowbar and Poole with a knife, and both had inflicted the wounds upon him which caused his death. The Crown accepted that on that night Wiltshire had been in an aggressive mood and had picked a fist fight with Mills, but the Crown case was that the violence used by Mills and Poole on Wiltshire was not used in lawful self-defence by Mills and in lawful defence of Mills by Poole but went far beyond what was reasonably necessary for such defence. At the trial the principal witness for the Crown was Kimberley Stadden. Her evidence was as follows. When she arrived outside the door of the room she heard shouting inside the room and it stopped when she entered the room. Some time later she was sitting on the settee in the room mixing amphetamine in a glass prior to injecting herself with the drug. Wiltshire and the defendant Mills were

[1997] 3 All ER 780 at  784

sitting on the settee next to her talking about which of them was better at fighting, when Wiltshire got up and jogged her arm and a fight then broke out between Mills and Wiltshire. The fighting was initially punching and kicking, but she then saw Mills with a crowbar which he used to strike Wiltshire, who was unarmed, several times to the legs and head. The defendant Poole joined in the fight and kicked Wiltshire twice and also used a knife on Wiltshire’s arm. Wiltshire tried to get out of the room through a window but failed to do so and fell back on to a settee and then on to the floor. Mills punched him and Poole kicked him before stabbing him in the buttocks with the knife four or five times. Juke then tried to intervene to stop the violence and then stopped her from seeing any more of the violence by pushing her head into his shoulder so that she could not see. While her head was turned away she heard ‘a sort of squishing noise’. She then saw Juke drag Wiltshire out of the room and on to the pavement of the street outside. She then walked to her flat in Gloucester, which was a little under a quarter of a mile away. She met the two defendants just outside her flat and the defendants had a conversation about using a telephone to get a taxi. She noticed that they had blood on their clothing and hands.

 

At the trial Mills and Poole gave evidence in their own defence. The evidence of Mills was that when Wiltshire came to Poole’s room he was in an aggressive and argumentative mood and wanted to start a fight. At a later stage Wiltshire attacked him and pulled out a knife and started to slash at him. There was a crowbar on the wall so he hit Wiltshire with it a few times to get the knife off him. There was then a pause and then Wiltshire came at him again, and in the course of the struggle Mills got hold of the knife and Wiltshire the crowbar. Wiltshire was on top of him with the crowbar striking at him, so he stabbed Wiltshire in the legs and buttocks. Mills said that he feared for his life and he used the crowbar and then the knife on Wiltshire in self-defence. Defence counsel did not raise the defence of provocation on behalf of Mills, but in his summing up the trial judge referred to provocation as a possible defence which the jury should consider. In his evidence the defendant Poole said that he had taken no part in the fight with Wiltshire and had inflicted no injuries on him.

 

As part of the investigation into the death of Wiltshire the police took two statements from Juke. The first statement was taken on the evening of 6 January 1989 and consisted of 11 typewritten pages. The second statement was taken on 10 January 1989 and consisted of seven typewritten pages. In his first statement, Juke described how after Wiltshire arrived in the room it was obvious that he had been drinking. He then successively challenged Poole, Mills and Juke himself to a fight but no fight took place at that point. At a later stage a young woman came into the room and after this Wiltshire pulled out a knife and attacked Mills with the knife and Mills used a crowbar to defend himself. At a later stage Wiltshire got hold of the crowbar and used it on Mills who managed to get hold of the knife and jab Wiltshire in the legs. At this stage he put his hands over the eyes of the young woman to shield her as there was blood everywhere. The statement continued: ‘Gary was well worked up but he was heavily provoked.’ At the conclusion of the statement Juke said: ‘The trouble happened because of Willie’s attitude, Willie was definitely looking for a fight, even after he got one beating, two beaten [sic], he still went back.’ In his first statement Juke made no reference whatever to Poole being involved in the fight and causing any injury to Wiltshire.

 

In his second statement, Juke said that at one stage when Wiltshire and Mills were fighting together on the floor he saw Poole get up and crouch down behind Wiltshire and, using a knife, stab Wiltshire in the buttocks about two or three

[1997] 3 All ER 780 at  785

times. He had not mentioned this in his first statement because he did not wish to involve his friend Tony Poole as he did not really play a very major role in events. He then described how he turned the young woman’s head away as he did not want her to see this and he lost sight of the three men. When he turned round again he saw Wiltshire lying on his side with Poole standing away from him and Mills was standing over Wiltshire hitting him on the thigh and calves, mostly on the thighs but not on the kneecaps. The statement continued:

 

‘MILLS kept hitting him with the crowbar saying something each time between blows to Willie. I don’t know what he was saying. Gary MILLS was giving Willie a severe beating so I said, “Leave it out, leave it alone”. Although I was worried that Gary MILLS might hit me with the crowbar, I went forward because I realised that Willie had to get out of there.’

 

In this statement Juke then described how he dragged Wiltshire out of the room, into the corridor and eventually out into the street. He then said that as he knew the ambulance was on its way he became panicky and, thinking he could do no more for Wiltshire, he ran off to his home in Gloucester as he did not wish to be involved in another assault having been already involved in one incident before Christmas.

 

A short time later a friend of Wiltshire arrived at his home and accused him of letting Wiltshire be beaten up by the others. Wiltshire’s friend then left his flat. He was concerned about Mills and Poole and he gave a woman friend a bag of clothes to take to Poole. He then went to another house in Gloucester where he saw Mills and Poole and he noticed that they had both changed their clothing. He then went to Cheltenham to start work at 7.20 am and Poole accompanied him to Cheltenham and Mills joined them in Cheltenham a short time later.

 

In a subsequent statement made after the trial to police officers who were conducting an inquiry into the circumstances relating to the death of Wiltshire, Juke said that the contents of his second statement of 10 January about Poole were untrue and had come about as a result of police pressure to implicate Poole, the police having taken a statement from Kimberley Stadden implicating Poole which they wished Juke to confirm. He also said he was put under pressure by the police to explain the ovoid injuries to Wiltshire’s legs, the suggestion being made that if he did not implicate Poole the police might have to conclude that as he was the last person to be with Wiltshire at Conduit Street he might have had something to do with those injuries.

 

On 23 March 1989 the senior Crown prosecutor wrote to Mr Gadd, the solicitor representing the two defendants, and stated:

‘As per our discussion at Court on the 21st March I informed you that the view of the prosecution was that we are not prepared to disclose the statement of Ian Christopher Juke at this stage. You are aware of his identity, there is no property in a witness and if you wish to obtain a statement from him you are at liberty to do so.’

 

On 2 May 1989 Juke was interviewed by Mr Gadd. The interview was recorded by Mr Gadd on a tape recorder and the interview was then typed out and consisted of 12 pages. The interview was a careful one in which Mr Gadd asked Juke about what had happened in the room when Wiltshire was injured and about what he had said to the police in his statements, and Juke gave detailed answers to Mr Gadd. In the interview Juke stated clearly that Wiltshire was

[1997] 3 All ER 780 at  786

picking a fight and was the aggressor, and that Mills acted in self-defence. At one stage Mr Gadd asked Juke if Poole had taken part in an attack on Wiltshire:

‘CG. Now, let me ask you this question. During the attack did Tony Poole have anything to do with it? Did he strike a blow, help Gary in any way? Juke. During the attack?

CG. At any time during that evening was he part and parcel of that assault? Juke. Not as far as I can see.

CG. Right. Now the girl says that he was. She says that he was involved in cutting him, kicking him, stabbing him in the arse when he was on his knees. Do you remember that? Juke. I think that was when I turned her head around, I saw Tony just get up and then I turned back when I had turned her head around. I thought she’d come down to see Tony not Willie.’

 

At a later stage in the interview Mr Gadd asked Juke what he had told the police that would implicate Mills and Poole. Juke gave a lengthy reply in which he said that the police had shown him statements which said that Poole was involved. The police asked him if he had seen Poole move and he replied that he had seen Poole move but he had not seen Poole stabbing. The police told him that Wiltshire had got stab wounds on the buttocks and asked him how they got there if Mills was in front of him. Juke’s answer to Mr Gadd then continued:

‘I told them I wasn’t looking at the time. I didn’t want to see what was happening and I didn’t want the girl to see what was happening, so I looked away … I am happy to say I didn’t see Tony do anything to him, right. I saw Tony move but I turned my head away.’

 

It is also relevant to observe that in the course of Mills being questioned by the police the police put to him the substance of Juke’s second statement and said to him:

‘Q. I think it only fair to tell you Mr. Mills and see if you wish to make any comment upon it. But it is alleged by witnesses that were in the room and have made statements to us. That when Willie bounced off the window that they gained the impression that you thought he was attacking you again. That you put him to the floor and started to have a rough and tumble with him. It was at this point that Mr. Poole came up behind him and stabbed him in the buttocks on a number of occasions and that you then got the better of Willie, became hot as they call it or lost your cool for the first in reality because they are basically saying you have been quite restrained with the antics of Mr. Wiltshire up until now. But that you then get the crowbar and in their view you go over the top and decide to teach him a lesson and that you rain a vast number of blows aimed on the calves and thighs of Wiltshire and that it is quite clear to the one person in particular that you meant to make him learn a lesson and that he gained the impression that you were intending to break his legs in order to settle the matter once and for all. And that your intention was to teach a lesson for all the trouble he had caused that night I mean that is couched in with the fact that up until then, you had held back in reality, but at that stage you had finally lost your cool and you gave him a lesson he wouldn’t forget. That is what the people are saying they saw in the room, again you don’t have to make any comment if you don’t want to but if you wish to deny that or say anything to it you can. A. No, as I said

[1997] 3 All ER 780 at  787

that’s not how I remember the incident. I’m not denying that I hit his legs several times with that bar but that was with a knife in his hand.’

 

Because the police referred to allegations of ‘witnesses that were in the room and have made statements to us’ it must have been clear to Mills that the police were putting to him what Stadden and Juke had said to them in their statements, and the reference to ‘the one person’ followed by ‘he gained the impression’ must have made it clear to Mills that Juke had told them that in his view Mills was intending to break Wiltshire’s legs in order to settle the matter once and for all.

 

At the trial Juke was not called as a witness by the Crown or by the defence, although he was present at court during the trial and was seen talking to the defence solicitor. Crown counsel did not call Juke because he believed that if he called him Juke would not be a truthful witness and would depart from the combined effect of his two statements and give evidence to support the cases of the two defendants. Accordingly Crown counsel was entitled not to call Juke, the law on this point being summarised by the Court of Appeal in R v Russell-Jones [1995] 3 All ER 239 at 245:

‘… the prosecution ought normally to call or offer to call all the witnesses who give direct evidence of the primary facts of the case, unless for good reason, in any instance, the prosecutor regards the witness’s evidence as unworthy of belief. In most cases the jury should have available all of that evidence as to what actually happened, which the prosecution, when serving statements, considered to be material, even if there are inconsistencies between one witness and another. The defence cannot always be expected to call for themselves witnesses of the primary facts whom the prosecution has discarded. For example, the evidence they may give, albeit at variance with other evidence called by the Crown, may well be detrimental to the defence case. If what a witness of the primary facts has to say is properly regarded by the prosecution as being incapable of belief, or as some of the authorities say “incredible”, then his evidence cannot help the jury assess the overall picture of the crucial events; hence, it is not unfair that he should not be called … (6) The prosecutor is also, as we have said, the primary judge of whether or not a witness to the material events is incredible, or unworthy of belief. It goes without saying that he could not properly condemn a witness as incredible merely because, for example, he gives an account at variance with that of a larger number of witnesses, and one which is less favourable to the prosecution case than that of the others. (7) A prosecutor properly exercising his discretion will not therefore be obliged to proffer a witness merely in order to give the defence material with which to attack the credit of other witnesses on whom the Crown relies. To hold otherwise would, in truth, be to assert that the prosecution are obliged to call a witness for no purpose other than to assist the defence in its endeavour to destroy the Crown’s own case. No sensible rule of justice could require such a stance to be taken.’

 

It would seem that the decision of the senior Crown prosecutor stated in the letter of 23 March 1989 not to disclose the two statements of Juke (the letter erroneously referred to ‘the statement’) was taken having regard to paras 2 and 6(ii) and (iii) of the Attorney General’s guidelines issued in 1981 (see Practice Note [1982] 1 All ER 734):

[1997] 3 All ER 780 at  788

‘2. In all cases which are due to be committed for trial, all unused material should normally (ie subject to the discretionary exceptions mentioned in para 6) be made available to the defence solicitor if it has some bearing on the offence(s) charged and the surrounding circumstances of the case …

 

6. There is a discretion not to make disclosure (at least until counsel has considered and advised on the matter) in the following circumstances … (ii) The statement (eg from a relative or close friend of the accused) is believed to be wholly or partially untrue and might be of use in cross-examination if the witness should be called by the defence. (iii) The statement is favourable to the prosecution and believed to be substantially true but there are grounds for fearing that the witness, due to feelings of loyalty or fear, might give the defence solicitor a quite different, and false, story favourable to the defendant. If called as a defence witness on the basis of this second account, the statement to the police can be of use in cross-examination.’

 

As Steyn LJ observed in delivering the judgment of the Court of Appeal in R v Brown [1995] 1 WLR 1599 these guidelines never constituted the law, they were merely a set of instructions to Crown Prosecution Service lawyers and prosecuting counsel.

 

The decision of the Court of Appeal

On the appeal to the Court of Appeal a number of separate grounds were advanced on behalf of the defendants, all of which were rejected by that court. One of the main grounds of appeal, in respect of which fresh medical and other evidence was heard by the Court of Appeal, was that there was a reasonable doubt whether the injuries inflicted on Wiltshire in the room in Conduit Street were a substantial cause of his death, and it was also submitted that there was a reasonable possibility that police officers had caused additional injuries to Wiltshire in the police station after he had been taken there from the hospital. This ground of appeal was rejected by the Court of Appeal, which held that it was satisfied that the injuries sustained by Wiltshire in the room were a substantial cause of his death, and that the jury were right to reject the contention that the police had caused any injuries to him.

 

The Court of Appeal also rejected the ground that the conduct of a detective inspector in dissuading Juke from attending the committal proceedings gave rise to such an abuse of process that an appellate court should set aside the convictions. The Court of Appeal also rejected the further ground that the evidence of Kimberley Stadden was so unreliable as to render the convictions unsafe and the court held that the jury were entitled to accept her evidence as that of a witness of truth.

 

In respect of the ground of appeal that the Crown had failed to provide to the defence copies of the two statements made by Juke to the police, the Court of Appeal considered R v Bryant and Dickson (1946) 31 Cr App R 146, Dallison v Caffery [1964] 2 All ER 610, [1965] 1 QB 348, R v Lawson (1989) 90 Cr App R 107, R v Ward [1993] 2 All ER 577, [1993] 1 WLR 619 and R v Brown and then stated:

‘If a witness is judged by the prosecutor to be incredible, does the overriding requirement for a fair trial require that witness [sic] should have access to his earlier statement which he may now regret? While the risks indorsed in R v Lawson are sometimes lively ones, should the witness have the opportunity (if the first statement is true) of contriving an explanation of

[1997] 3 All ER 780 at  789

it which so far as possible avoids collision with his earlier words? Should a defendant be insulated against the risks attendant in all litigation of calling a witness who has given a statement to the opposing party. We think not. In our view, the answer is to be found in the judgment of this court in R v Lawson. The prosecutor has a discretion and good sense and experience will ordinarily safely point the way. Where it can be shown that an injustice has resulted from that exercise this court will intervene, but in the case of the incredible witness the non-disclosure of a material statement is not per se an irregularity. Mr Ian MacDonald QC, then leading counsel for both defendants, has since said that had he known of the actual contents of Juke’s two statements, he would have called him, for Juke would have said that the contents of his second statement were untrue and only procured by police misinformation. While not questioning Mr MacDonald’s belief we have some reservations on the value of such reconstructions.’

 

The Court of Appeal further observed on this ground of appeal that any prejudice from the non-disclosure of Juke’s second statement was largely eliminated because the police questioning of Mills (which is set out in an earlier part of this judgment) revealed the substance of that statement to the defence.

 

Although the defendants had obtained copies of Juke’s two statements to the police after the trial and before the hearing of the appeals, neither defendant applied to the Court of Appeal for leave to call Juke to give fresh evidence. However, the Court of Appeal itself decided (with the consent of the defendants) to call Juke to give evidence before it and the court examined Juke and heard his evidence. Mr Mansfield QC for the defendant Mills and Mr Stewart QC for the defendant Poole declined the opportunity to cross-examine Juke, but he was cross-examined by Mr Chadd QC for the Crown.

 

After ruling that the failure by the Crown to give copies of Juke’s police statements to the defence did not constitute an irregularity, the court went on to state that even if the non-disclosure of Juke’s statements had constituted a material irregularity, it was satisfied, having heard Juke’s evidence, that the convictions were not unsafe.

 

The point of law of general public importance certified by the Court of Appeal was:

‘Where prosecuting counsel has reasonably decided that the maker of the statement is not a witness of truth and will seek to depart from, or contrive an explanation for, that statement if the witness is called, is the prosecution’s duty limited to furnishing the name and address of the witness only, or must counsel provide copies of the statement to the defence …’

 

The common law rules relating to disclosure

In the present case the two statements which Juke made to the police were obviously highly material to the issues which arose because they described violence which took place in the room and related directly to issues of self-defence and provocation. The principal argument advanced on behalf of the defendants by Mr Mansfield was that the failure by the prosecution to give copies of the two statements to the defence constituted a material irregularity which rendered the convictions unsafe.

[1997] 3 All ER 780 at  790

Prior to 1 January 1996 under s 2(1) of the Criminal Appeal Act 1968 the three grounds on which, subject to the operation of the proviso, the Court of Appeal was required to allow an appeal against conviction were:

‘(a) that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or (b) that the judgment of the court of trial should be set aside on the ground of a wrong decision of any question of law; or (c) that there was a material irregularity in the course of the trial, and in any other case shall dismiss the appeal: Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no miscarriage of justice has actually occurred.’

 

A new s 2(1) was substituted by s 2 of the Criminal Appeal Act 1995:

‘Subject to the provisions of this Act, the Court of Appeal–(a) shall allow an appeal against conviction if they think that the conviction is unsafe; and (b) shall dismiss such an appeal in any other case.’

 

Accordingly since 1 January 1996 the sole ground for allowing an appeal has been that the conviction is unsafe, and there is no longer a proviso. However, notwithstanding that a material irregularity in the course of the trial is no longer a separate and statutory ground for allowing an appeal, it is still appropriate in a case such as the present to consider whether a failure to disclose constituted a material irregularity and, if so, whether the material irregularity has caused the conviction to be unsafe.

 

Before your Lordships the submissions advanced on behalf of the defendants and the Crown related principally to the issue whether, applying the present rules of the common law in respect of disclosure, the failure of the prosecution to furnish copies of Juke’s statements to the defence constituted a material irregularity. But before turning to consider that issue it is necessary to address two preliminary questions. These questions arise because the trial of the defendants took place in 1990 before the present rules relating to disclosure were developed in a number of important cases. The first question is whether the failure to furnish the two statements constituted a material irregularity under the rules which were understood to apply in 1990. If the answer to this question is No, the second question is whether your Lordships’ House, hearing this appeal in 1997, should nevertheless apply the modern rules and consider whether the failure to disclose constituted a material irregularity under them.

 

The Court of Appeal in R v Ward [1993] 2 All ER 577 at 599, [1993] 1 WLR 619 at 643, in the context of s 2(1) of the 1968 Act before it was amended by the 1995 Act, addressed this issue and stated:

‘In his written submissions dealing with the appellant’s complaints of non-disclosure, Mr Langdale has distinguished between what, as a matter of law and procedure, was disclosable in 1974 and what is disclosable in 1992, but both he and Mr Mansfield invited us to apply the standards of 1992 to the question of what ought to have been disclosed at the trial. We do not think that this is the correct approach to s 2(1)(c). It is true that in R v Maguire [1992] 2 All ER 433, [1992] QB 936, where the original trial had taken place in 1975, the court adopted a test for disclosability which first appeared in the Attorney General’s guidelines published in December 1981 (see Practice Note

[1997] 3 All ER 780 at  791

[1982] 1 All ER 734), namely whether the undisclosed material had “some bearing on the offence(s) charged and the surrounding circumstances of the case”. The point does not, however, appear to have been argued–the case for the Crown was that non-disclosure was incapable of constituting a material irregularity in the course of the trial–and we do not regard R v Maguire as requiring us to take what was called in argument a “here and now” approach to the question of what should have been disclosed in 1974. The last 18 years have brought considerable advances in medical and forensic science. In deciding whether a verdict is “safe and satisfactory” for the purposes of s 2(1)(a) [of the Criminal Appeal Act 1968], or whether there has been a miscarriage of justice for the purposes of the proviso, we must clearly take account of all of the knowledge and experience which is available to us in 1992, but in order to determine whether there were material irregularities in the course of the appellant’s trial in 1974 we must, as it seems to us, apply as best we can the standards of what was considered to be proper and regular at that time. The distinction is, however, of limited practical significance because the appellant submits, and we accept, that even by the standards of 1974 there were failures to disclose by each of the four prosecution groups to which we have referred.’

 

However I consider, with respect, that the distinction referred to by the Court of Appeal (which was of little practical significance in R v Ward) should not be adopted by your Lordships. I am of this opinion because, as the Court of Appeal observed in R v Maguire [1992] 2 All ER 433 at 446, [1992] QB 936 at 957, a material irregularity which causes a conviction to be quashed is not a mere procedural irregularity and there is no real distinction between a material irregularity which causes a miscarriage of justice and a feature of the trial which causes a conviction to be unsafe, the Court of Appeal stating–

‘The outcome of the debate as to whether non-disclosure of material is an irregularity within para (c) [of s 2(1) of the 1968 Act] or is a feature which can render a conviction unsafe or unsatisfactory under para (a), has, as it seems to us, no consequence in regard to the result (as opposed to the route) of an appeal. This is because of the proviso. If the court is unable to hold “that no miscarriage of justice has actually occurred” in a case of irregularity then (as in R v Paraskeva (1982) 76 Cr App R 162) the conviction is not “safe”. If it does so hold, then the court is effectively saying that the conviction is safe and satisfactory.’

 

Therefore I am of the opinion that your Lordships should apply the modern rules to determine whether the failure to disclose Juke’s statements constituted a material irregularity. If it did, the further question then arises whether the irregularity caused the convictions to be unsafe.

 

The consideration of the prosecution’s duty to make disclosure must commence with the judgment of the Court of Criminal Appeal delivered by Lord Goddard CJ in 1946 in R v Bryant and Dickson 31 Cr App R 146. In that case a fraud took place in respect of the repairing of ambulances in a garage operated by a company in which the defendant Dixon was the major shareholder and where the defendant Bryant worked. The report stated the facts as follows (at 146-147):

‘It was the duty of an employee of the company at the garage to make an estimate of the work which had to be done, and where that differed from the work specified in the note the sanction of a supervising mechanic named

[1997] 3 All ER 780 at  792

Campbell was required. The case was presented on the footing that Campbell, either consciously or unconsciously, facilitated the frauds which were perpetrated.’

 

The prosecution had taken a statement from Campbell but they did not furnish a copy of the statement to the defence and they did not call Campbell as a witness at the trial. On the appeal it was argued (at 147) that–

‘the prosecution, having taken a statement from Campbell and having decided not to call him as a witness, were under a duty to furnish the defence with a copy of the statement, in order to enable the defence to decide whether they should call him.’

 

The argument was rejected by the Court of Criminal Appeal, Lord Goddard CJ stating (at 151-152):

‘It is said that it was the duty of the prosecution to have supplied the defence with a statement which Campbell had admittedly made to the prosecution. The prosecution, for reasons which one can well understand, did not call Campbell. Is there a duty in such circumstances on the prosecution to supply a copy of the statement which they have taken to the defence? In the opinion of the Court there is no such duty, nor has there ever been. In the first place, if they had supplied a copy of the statement of Campbell, that would not have enabled the defence to put the statement in. The statement which Campbell made could have become evidence only if he had been called as a witness. But it is said that it was the duty of the prosecution to put that statement at the disposal of the defence. In the opinion of the Court, the duty of the prosecution in such a case is to make available to the defence a witness whom the prosecution know can, if he is called, give material evidence. That they did in this case, because when a letter was sent by the defence to the Director of Public Prosecutions, the reply of the Director of Public Prosecutions showed quite clearly that the prosecution did not intend to call him, but he added: “There is no objection to your taking a statement from Campbell if you wish to do so”. That was said well before the trial. It was said after the close of the police court proceedings, when the defence knew that Campbell was not being called by the prosecution, and therefore could quite well themselves have gone to Campbell and taken a statement from him. Campbell was at the Court. Who brought him to the Court I do not know, nor is it material to inquire, but the defence could have called him if they had liked. No doubt Mr. Scott Henderson would not have been so unwise as to call him without having a statement from him, but if the defence did not choose to take a statement and find out what he was prepared to say, that is not a matter with which the prosecution are concerned. In the opinion of the Court it is quite wrong to say that it was the duty of the prosecution in these circumstances, having made Campbell available to the defence as a witness if they wished to call him, to go further and produce the statement which he had made.’

 

In Dallison v Caffery [1964] 2 All ER 610 at 618, [1965] 1 QB 348 at 369 Lord Denning MR stated:

‘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

[1997] 3 All ER 780 at  793

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.’

 

By drawing a distinction between making the statement of a credible witness available to the defence and telling the defence about a witness whom the prosecution do not accept as credible, it appears that Lord Denning MR was restating the practice formulated in R v Bryant and Dickson. I shall hereafter refer to this practice as ‘the rule in R v Bryant‘.

 

The judgment of the Court of Appeal in R v Lawson (1989) 90 Cr App R 107 was delivered in June 1989 and in that case also the Court of Appeal accepted that the rule in R v Bryant laid down the general practice, although it further stated that in some cases, including the case before it, an inflexible application of the rule could lead to injustice and there should be exceptions to it.

 

Therefore I consider that the non-disclosure of Juke’s statements did not constitute a material irregularity, applying the standards of what was considered to be proper in 1990.

 

However, the principal submission advanced on behalf of the defendants by Mr Mansfield was that the rule in R v Bryant should no longer be followed and was in conflict with the approach adopted by the Court of Appeal in decisions given subsequent to the trial of the defendants. Mr Mansfield submitted that in decisions since 1990 the Court of Appeal had emphasised the importance in criminal cases of full disclosure by the prosecution and of the defendant being informed of material which might assist him in his defence and that this was a consistent theme which ran through the decisions in R v Davis [1993] 2 All ER 643, [1993] 1 WLR 613, R v Ward [1993] 2 All ER 577, [1993] 1 WLR 619 and R v Keane [1994] 2 All ER 478, [1994] 1 WLR 746. In R v Ward [1993] 2 All ER 577 at 600-601, [1993] 1 WLR 619 at 645-646 the court stated that the rules relating to disclosure by the prosecution–

‘were merely aspects of the defendant’s elementary common law right to a fair trial which depends upon the observance by the prosecution, no less than the court, of the rules of natural justice. No authority is needed for this proposition but it is illustrated by the decision of the Divisional Court in R v Leyland Magistrates, ex p Hawthorn [1979] 1 All ER 209, [1979] QB 283. On the broad basis of this right, the defendant is plainly entitled (subject to statutory limitations on disclosure, and the possibility of public interest immunity, which we discuss below) to be supplied with police evidence of all relevant interviews with him. We would adopt the words of Lawton LJ in R v Hennessey (1978) 68 Cr App R 419 at 426 where he said that the courts must–“keep in mind that 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. We have no reason to think that this duty is neglected; and if ever it should be, the appropriate disciplinary bodies can be expected to take action. The judges for their part will ensure that the Crown gets no advantage from neglect of duty on the part of the prosecution.” That statement reflects the position in 1974 no less than today. We would emphasise that “all relevant evidence of help to an 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

[1997] 3 All ER 780 at  794

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. We believe that in practice the importance of disclosing unused material has been much more clearly recognised by prosecutors since the publication of the Attorney General’s guidelines. The current Code of Conduct of the Bar of England and Wales (1991) Annexe H “Written standards for the conduct of professional work, Standards applicable to criminal cases”, para 1.2, reflecting the words of Lawton LJ which we have quoted, provides: “Prosecuting counsel should bear in mind at all times whilst he is instructed that he is responsible for the presentation and general conduct of the case and that it is his duty to ensure that all relevant evidence is either presented by the prosecution or made available to the defence.”’

 

Therefore Mr Mansfield contended that under the principles established by recent decisions the prosecution should have furnished Juke’s statements to the defence. He submitted that if the statements had been given to the defence so that Mr MacDonald was aware of their contents, he would have called Juke, who would have said that the contents of the second statement were untrue and were only procured by police pressure. Moreover, if the statements had been given to the defence it is very probable that the defendants would have been separately represented, and counsel for Mills would have called Juke to support Mills’ case that he acted in self-defence, whilst counsel for Poole could have cross-examined Juke effectively as to why he changed his account of Poole’s actions in his second statement.

 

Mr Mansfield submitted that the only matters exempt from disclosure by the prosecution are (a) matters which are not relevant, (b) matters in respect of which a claim of public interest immunity is upheld by the court, (c) matters which fall under the statutory exception provided by s 2 of the Interception of Communications Act 1985, and (d) matters which go only to the credibility or reliability of defence witnesses. The two statements of Juke did not fall into any of these categories and therefore should have been disclosed.

 

Mr Mansfield also relied strongly on the judgment of the Supreme Court of Canada delivered by Sopinka J in R v Stinchcombe (1991) 68 CCC (3d) 1. In that case the Crown decided not to call a witness who was considered unworthy of credit by Crown counsel. The witness could have given evidence directly relevant to the issues arising at the trial. The Crown also refused to disclose the statements of the witness to the defence. Part of the headnote reads (at 3):

‘In this case, Crown counsel misconceived his obligation to disclose the statements. Crown counsel had refused disclosure because in his view, the witness was not worthy of credit. This was not an adequate explanation. The trial judge ought to have examined the statements and erred in holding that the Crown counsel was not under an obligation to make disclosure of the statements. The failure of the Crown to make disclosure impaired the right of the accused to make full answer and defence. It must be assumed that non-production of statements was an important factor in the decision of the defence not to call the witness. The absence of this evidence might very well have affected the outcome. Accordingly, the appeal must be allowed and a new trial ordered at which the statements should be produced.’

 

Mr Mansfield informed their Lordships that it was now the practice in the Crown Courts in London for the prosecution to give to the defence a copy of a

[1997] 3 All ER 780 at  795

statement of a witness in respect of relevant matters notwithstanding that the prosecution regard the witness as not being a witness of truth, although their Lordships were informed by Mr Chadd that this was not the practice on the Western Circuit where the rule in R v Bryant still applies.

 

Mr Mansfield further relied on the Consultation Document on Disclosure presented to Parliament by the Home Secretary in May 1995. In ch 4 relating to ‘Primary Prosecution Disclosure’, para 42 states:

‘Illustrations of material which may undermine the prosecution case, and which should therefore be made available when the prosecution discloses unused material in its possession, are as follows … If the defendant has told the police in an interview that he was acting in self-defence, it will be necessary to disclose the statement of any witness who supports this but whom the prosecution does not regard as truthful.’

 

Mr Mansfield submitted that this paragraph would apply directly to the present case and was a clear recognition that the relevant statement of a witness should be disclosed to the defence, even if the prosecution regard the witness as untruthful.

 

Mr Chadd, for the Crown, submitted that the rule in R v Bryant constitutes, in addition to public interest immunity, a further exception to the Crown’s duty to make disclosure. He contended that the rule was still valid today as it was based on a recognition that the purpose of a criminal trial is to arrive at the truth, and this object is not assisted if the defence (being already aware of the existence of the witness so that it can interview him) is furnished in advance of the trial with the statement of the witness who the prosecution reasonably believes will give untruthful evidence and will seek to assist in the making of a false defence if called by the defendant. Mr Chadd further submitted that the courts should have regard to the reality that if one of a group of criminals committed a crime and the police quickly obtained a statement from another of the group implicating the former in the crime, and the prosecution then decided not to call the latter because it took the view that in the witness box he would seek to assist the defendant and would dishonestly seek to explain away his earlier statement, the preparation of the false defence would be considerably assisted if the prosecution were obliged to hand over the statement prior to trial.

 

Mr Chadd further submitted that, whilst the Court of Appeal in R v Ward [1993] 2 All ER 577, [1993] 1 WLR 619 was not directly concerned with the rule in R v Bryant, the court recognised the continuing validity of the rule when it said that there can be good reasons for not supplying a copy of a witness statement and stated ([1993] 2 All ER 577 at 631-632, [1993] 1 WLR 619 at 679-680):

‘It is now convenient to summarise the principles of law and practice which at the present time govern the disclosure of evidence by the prosecution before trial. (i) “Where the prosecution have taken a statement from a person whom they know can give material evidence but decide not to call him as a witness, they are under a duty to make that person available as a witness for the defence …’ (see Archbold’s Pleading, Evidence and Practice in Criminal Cases (44th edn, 1992) para 4-276). It is part of the same passage as is quoted with approval in this court in R v Lawson (1989) 90 Cr App R 107 at 114 from the preceding edition. “Material evidence” means evidence which tends either to weaken the prosecution case or to strengthen the defence case. (ii) Unless there are good reasons for not doing so, the duty

[1997] 3 All ER 780 at  796

should normally be performed by supplying copies of the witness statements to the defence or allowing them to inspect the statements and make copies: R v Lawson. Where there are good reasons for not supplying copies of the statements, the duty to disclose can be performed by supplying the name and address of the witness to the defence.’

 

Mr Chadd also relied on the judgments of the Court of Appeal in R v Williams (15 April 1994, unreported) and R v Seymour (19 December 1995, unreported). In each of those cases the Court of Appeal held that where the prosecution had taken a statement which undermined the credibility of a witness supporting a defence alibi, the prosecution was not obliged to give a copy of the statement to the defence.

 

The arguments advanced on behalf of the Crown are of considerable weight. In particular, in a case such as the present one where Juke was a friend and associate of the defendants, I consider that there is force in the argument that if his statements had been given to the defendants it might well have assisted them to prepare a false defence and Juke, when called as a defence witness, to contrive an explanation for parts of his statements adverse to the defendants. However, notwithstanding the force of these arguments, I have come to the conclusion for the following reasons that the rule in R v Bryant can no longer be regarded as laying down the proper practice.

 

The rule was formulated by the Court of Appeal in 1946, a considerable time before recent developments in the common law relating to disclosure, and it is difficult to reconcile the rule with the emphasis which the modern cases place on the duty of the prosecution to disclose all relevant material which may assist the defence, subject to the exception, expressly recognised in the modern cases, of public interest immunity. The Court of Appeal in R v Ward was not directly concerned with the issue which arises in the present case, and I do not consider that its judgment can be read as constituting express approval of the rule in R v Bryant. I further consider that the judgments in R v Williams and R v Seymour are distinguishable as in each of those cases the statement taken by the prosecution did not contain evidence of facts which undermined the prosecution case or assisted the defence case. This distinction was expressly recognised in R v Seymour when Judge J stated:

‘There will of course be occasions when such investigations will reveal positive information assisting the defence case. Such material will be disclosed in accordance with current principles.’

 

The judgment of the Supreme Court of Canada in R v Stinchcombe (1991) 68 CCC (3d) 1 is also a strong persuasive authority in support of the argument of the defendants. Sopinka J stated (at 7, 8):

‘I would add that the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done … Refusal to disclose is also justified on the ground that the material will be used to enable the defence to tailor its evidence to conform with information in the Crown’s possession. For example, a witness may change his or her testimony to conform with a previous statement given to the police or counsel for the Crown. I am not impressed with this submission. All forms of discovery are subject to this criticism. There is surely nothing wrong in a witness refreshing his or her memory from a

[1997] 3 All ER 780 at  797

previous statement or document. The witness may even change his or her evidence as a result. This may rob the cross-examiner of a substantial advantage but fairness to the witness may require that a trap not be laid by allowing the witness to testify without the benefit of seeing contradictory writings which the prosecutor holds close to the vest. The principle has been accepted that the search for truth is advanced rather than retarded by disclosure of all relevant material.’

 

Moreover, as the Court of Appeal stated in R v Lawson (1989) 90 Cr App R 107, an inflexible application of the rule in R v Bryant can lead to injustice. An obvious example is where, as occurred in R v Stinchcombe, the witness who has made the statement to the police refuses to be interviewed by the defence. In R v Lawson the prosecution did not give the defence a copy of the statement of a witness as to material facts which supported the defence case because it considered that it might require to use the statement if the person who had made it were called as a defence witness. In fact, the defence did not call the witness because it was unaware of a change in the relationship between her and a co-defendant. The Court of Appeal allowed the appeal and quashed the conviction stating (at 115):

‘This Court … wishes to endorse the observation made in the paragraph in Archbold: that it must be remembered that an inflexible application of Bryant and Dickson can lead to an injustice. In the circumstances of this case, the Court has no doubt whatever that for that trial to proceed on the basis that it did, with the defence wholly unaware of the change in the relationship between these two witnesses and of the fact that the statement had been given, is the sort of injustice which may occur.’

 

The court went on to state:

‘It is not possible to make a ruling as to the circumstances in which it is or is not right to exercise the discretion one way or the other. In the vast majority of cases the experience and feeling of counsel will lead to the right decision being made but when a wrong decision is made then the matter has to be dealt with properly and the appeal allowed on that ground.’

 

The Court of Appeal made a similar observation in the present case, stating:

‘In our view, the answer is to be found in the judgment of this court in R v Lawson. The prosecutor has discretion and good sense and experience will ordinarily safely point the way. Where it can be shown that an injustice has resulted from that exercise this court will intervene, but in the case of the incredible witness the non-disclosure of a material statement is not per se an irregularity.’

 

In my opinion as the rule is recognised as one which can, in certain circumstances, operate to cause an injustice at the trial leading to an unsafe conviction and the imprisonment of the defendant, which can only be remedied some time later by the Court of Appeal, the rule should not continue as part of the common law unless there is a strong countervailing argument to support it. But I consider that the risk that disclosure may assist the defence to tailor its evidence is not a consideration which should outweigh the risk that the operation of the rule may result in injustice.

 

Moreover, although under the rule in R v Bryant the defence will always know of the existence of the witness and there are obvious differences between

[1997] 3 All ER 780 at  798

non-disclosure under the rule and non-disclosure on the ground of public interest immunity, the giving of discretion to the prosecutor to decide whether to furnish a copy of the statement is not in conformity with the approach stated by Lord Taylor of Gosforth CJ in R v Davis [1993] 2 All ER 643 at 648, [1993] 1 WLR 613 at 617-618:

‘Before R v Ward [1993] 2 All ER 577, [1993] 1 WLR 619 the defence would have been totally unaware that, within the prosecution authority, the question of whether to disclose sensitive material or not was being resolved. The effect of R v Ward is to give the court the role of monitoring the views of the prosecution as to what material should or should not be disclosed and it is for the court to decide. Thus, the procedure described as unsatisfactory in R v Ward, of the prosecution being judge in their own cause, has been superseded by requiring the application to the court.’

 

Accordingly I would hold that the rule in R v Bryant is not in conformity with the principles relating to disclosure established by the decisions of the Court of Appeal subsequent to the trial of the defendants, and the rule should no longer be applied. Therefore at the present time it would constitute a material irregularity not to disclose Juke’s statements, and for the reason which I have given, I would hold that the non-disclosure did constitute a material irregularity at the time of the trial.

 

Therefore the final question for decision is whether this material irregularity made either of the convictions unsafe. In my opinion it did not for two reasons. First, although the non-disclosure of Juke’s two statements meant that the defence did not have precise knowledge of what Juke had told the police in those statements about the actions of the two defendants, nevertheless the information which Juke gave to Mr Gadd, the solicitor for the defendants, in the detailed interview which the latter conducted with him, together with the substance of Juke’s second statement which was put to Mills by the police when they questioned him, meant that the defence were aware of the general nature of the information which Juke had given to the police and were alerted to the risks which would be involved in calling him as a defence witness. Accordingly I am in agreement with the view of the Court of Appeal that any prejudice from the non-disclosure was thereby largely eliminated.

 

Secondly, as I have stated, the Court of Appeal went on to consider the issue of the safeness of the convictions on the assumption (contrary to its finding) that there had been a material irregularity and in the light of Juke’s evidence before it, and concluded that the convictions were not unsafe. The reasoning of the Court of Appeal was:

‘If our conclusion had been that there was a material irregularity in the non-disclosure of Juke’s statement, we would have had to consider whether for that reason either conviction was unsafe. Having heard Juke in the witness box we are sure that his evidence would not have raised doubts in the jury’s minds as to the guilt of either defendant. We have already referred to the conflict between the injuries spoken of by Juke and the casualty doctor’s findings. It was Juke who took the deceased from the front room in which the incident happened and left him on the street outside. He was thus well placed to know in general terms what injuries the deceased had sustained. Miss Stadden said that Juke had for a period covered her eyes so that she would not see what was happening. Juke agreed that he had done

[1997] 3 All ER 780 at  799

so, and that in doing so he had turned his head away from the incident and towards Miss Stadden. But, he insisted, he had covered her eyes only for a moment, and only turned his head for that moment. Thus it was not possible to explain his not having seen the infliction of the injuries to the deceased’s buttocks and below his knee caps on that account. In our judgment, Juke’s evidence would only have served to underscore the disproportion between the extensive injuries to Wiltshire seen at casualty and the minor injury to Mills. Any question of who began the violence aside, the distribution of those injuries to the deceased that were seen pre arrest told most strongly against primarily Mills, but Poole also. Moreover, it is likely the jury would have connected these two pieces of evidence and drawn the inference (as we unhesitatingly do) that Juke covered her eyes to spare her witnessing the savagery of the attack on the helpless Wiltshire–a visitor from the London drug scene who was to be taught a lesson for attempting to muscle in on the Gloucester drug scene on which Poole and Mills were obvious key players. We are fully satisfied that had Mr MacDonald called Juke at the trial his evidence would not have assisted either appellant in any way.’

 

The Court of Appeal had the great advantage of seeing and hearing Juke give evidence. Having considered the transcript of the evidence which Juke gave before the Court of Appeal I am satisfied that that court was fully entitled to come to the conclusion that if Juke had given evidence for the defence at the trial both defendants would still have been convicted of the murder of Wiltshire. Therefore I consider that the convictions were not unsafe.

 

Accordingly I am of the opinion that in the circumstances specified in the certified question the answer to it should be that it is the duty of prosecuting counsel to provide a copy of the statement of the witness to the defence and that the duty is not limited to furnishing only the name and address of the witness. But as I consider that neither of the convictions is unsafe I would dismiss both appeals.

 

Appeals dismissed.

Celia Fox Barrister.