England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		28th July 2005

1. LADY JUSTICE SMITH: This is an application for permission to apply for Judicial Review of the decision of District Judge (Magistrates Court) Bennett, sitting at Huddersfield Magistrates Court on 7th March 2003. The application for permission was adjourned to an oral hearing by Lightman J on 16 June 2005 with a direction that the substantive hearing should follow immediately if permission was granted. The District Judge had refused an application by Kristopher Gleadall for a stay on the proceedings against him for an offence of common assault then outstanding in the Huddersfield Magistrates Court.
2. The essence of the application for a stay was that the prosecution was an abuse of process because the Crown Prosecution Service (CPS) had refused to investigate the case against Mr Gleadall adequately and to disclose to him information that might assist his defence. The information sought related to the character of witnesses whom the prosecution intended to call at his trial. The request for information comprised a questionnaire, which required the prosecution to make detailed enquiries of the witnesses as to their past conduct and as to any court or disciplinary proceedings in which they had been involved. Without that information, it was argued that the claimant's trial would not be fair. Moreover, it was submitted that, since the bad character provisions in Part 11 (Eleven), Chapter 1 of the Criminal Justice Act 2003 came into force in December 2004, the definition of bad character had been widened and the ambit of evidence of bad character which might be deployed by a defendant in a trial had been extended. That being so, the prosecution was now under a duty to disclose a wider range of information about the character of prosecution witnesses than had hitherto been the case.
3. The District Judge refused the application, saying that the definition of bad character had not been extended and that the prosecution's duty of disclosure was as set out in the Criminal Procedure and Investigations Act 1996 (CPIA). The extent of the duty had not been changed by the Criminal Justice Act 2003. The prosecution had complied with its duty of disclosure in the instant case and there was no ground for granting a stay. It appears that the solicitors representing the claimant in this matter have issued questionnaires seeking information about the bad character of the witnesses in a large number of cases. We have been told that many such cases have been adjourned pending the result of this application. The CPS are anxious to have an authoritative ruling about their duty in respect of these questionnaires. That being so, we decided at the outset to grant permission to seek a Judicial Review and to proceed immediately to the substantive hearing.
4. The claimant is charged with an offence of common assault, alleged to have been committed against one Jonathan Hughes on 12th August 2004. Hughes made a complaint to the police that, following a brief altercation between him and the claimant in a street in Huddersfield, the claimant had punched him in the face. There were, so the prosecution claim, four eye witnesses to this assault, all of whom supported the contention that the claimant had punched Hughes. At the time of his arrest and in interview, the claimant admitted that he had punched Hughes but said that he had done so in self defence. On 18th August 2004, he entered a not guilty plea. On 27th September, the prosecution provided primary disclosure pursuant to their duty under Section 3 of the CPIA. This provides, by Section 3(1), that the prosecution must disclose to the accused any prosecution material not previously disclosed to the accused and which, in the prosecution's opinion, might undermine the case for the prosecution or assist in the case for the accused. Alternatively, the prosecution must give to the accused a written statement that there is no such material in its possession. By Section 3(2) the material to be disclosed is limited to that which is in the prosecution's possession and came into its possession in connection with the case for the prosecution against the accused, or which the prosecutor has inspected in connection with the prosecution case against the accused, pursuant to a code issued under Part 2 of the Act. The Code of Practice under Part 2 governs the action the police must take in recording and retaining material obtained in the course of a criminal investigation and regulating its supply to the prosecutor for a decision on disclosure.
5. At primary disclosure in this case, the prosecutor informed the defence that none of the five lay witnesses to be called by the prosecution had any previous convictions. No other unused material was disclosed: the defence already had a full set of witness statements.
6. A defence statement was drafted on 16th October 2004 but it appears that it was not served. This document stated that the defence was self defence although this was already clear from the interview record. The service of a defence statement is voluntary in proceedings before the Magistrates Court. If a defence statement is served, the prosecution is under a duty of secondary disclosure pursuant to Section 7 of the CPIA, which requires that the prosecutor should reconsider the material in his possession and that which he has inspected to see whether, in the light of the defence statement, further material should be disclosed. As it appears that the defence statement was not served, it is not clear that any duty of secondary disclosure arose in this case. However, nothing turns on that.
7. At the pre-trial review on 4th November 2004, the credibility of the prosecution witnesses was identified as an issue for the trial. On 20th December 2004, the claimant's solicitors wrote to the prosecution a letter in which they first discussed whether the new bad character provisions of the Criminal Justice Act 2003, which had come into force on 15th December, would apply to the forthcoming trial. It was later established that they would. The letter explained that, if the provisions were in force, the defence might want to make an application for the admission of bad character evidence relating to the prosecution witnesses. The solicitors did not say that they had any particular reason for thinking that the prosecution witnesses might be of bad character but they enclosed a questionnaire which was designed to find if they were and, if there was any evidence of bad character, whether there might be agreement as to its admissibility at the trial.
8. The Criminal Justice Act 2003 abolished the common law rules on the admissibility of evidence of bad character and introduced new rules as to the circumstances in which evidence of bad character can be deployed. Also, a procedural regime has been imposed for applicants who wish to introduce such evidence. So far as non-defendant witnesses are concerned, Section 100 provides, at subsection 1:

"In criminal proceedings, evidence of the bad character of a person other than the defendant is admissible if and only if-

"(a) it is important explanatory evidence,

"(b) it has substantial probative value in relation to a matter which-

"(i) is a matter in issue in the proceedings, and

"(ii)is of substantial importance in the context of the case as a whole, or

"(c) all parties to the proceedings agree to the evidence being admissible."

9. The questionnaire plainly had these provisions in mind. First, it asked a series of questions about each prosecution witness. Each question had supplementary questions, to be answered if the answer to the main question was in the affirmative. Question 1 asked:

"Does the witness have previous convictions for any criminal offence?"

I observe that that question was otiose in this case because the prosecution had already told the defence that none of the witnesses had previous convictions. Question 2 asked:

"Has the witness ever been investigated for or charged with an offence which did not result in a conviction?

"3. Has the witness ever been the subject of a disciplinary investigation or hearing (regardless of the outcome)?

"4. Has the witness ever given evidence in any proceedings (criminal, civil or otherwise) which has been demonstrated to be the untrue?

"5. Has the witness ever given information to the police or any other investigating authority which has been shown to be false?

"6. Are there any other matters which are evidence or past acts of, or which show a propensity towards, the following:

"i) Dishonesty?

"ii) Other misconduct or reprehensible behaviour."

Question 7 was to be answered only if any of the previous questions had been answered in the affirmative. It asked whether the prosecution agreed to the information disclosed being admitted at trial. Question 8 asked whether it was submitted that any of the above matters had probative value for the purpose of assessing the reliability of the witness. Question 9 asked whether the prosecutor agreed that any of the above matters had substantial value for understanding the case as a whole. Those last three questions were plainly aimed at finding out to what extent there would be agreement on the admissibility of any bad character evidence that was discovered by answers to questions 1 to 6.

10. On 23rd December 2004 the CPS replied to the claimant's solicitors by letter saying that they would not answer the questionnaire; they would apply the usual rules in relation to unused material. On 21st January 2005, the CPS sent a further letter to the claimant's solicitors in a form which it appears has been used in each case in which the CPS had been served with a questionnaire of this type. The letter said that the Crown would not respond to the questionnaire; the provisions under section 100 of the Criminal Justice Act 2003 were designed to provide increased protection for non-defendant witnesses and did not in any way affect the Crown's responsibility of disclosure of material as imposed by CPIA 1996. The Crown remained ready and willing to comply with its duty of secondary disclosure if and when the defence statement was served.
11. Meanwhile, the claimant's solicitors had applied to the Legal Services Commission (LSC) for funding to make its own inquiries into the characters of the five prosecution witnesses. On 10th February 2005, the LSC wrote to say that they did not intend to process the application, in essence because the applicant's solicitors had not given any reason for thinking that the witnesses might be of bad character. The solicitors replied on 11th February, providing some background to the application. They said that under Section 100 of the Criminal Justice 2003, the defence would have to make an application to put bad character in. Bad character was now very widely defined and well beyond the scope of any previous criminal convictions. The solicitors explained that they had served a questionnaire but the prosecution had refused to answer it. They admitted that, at that time, they were unaware of any reason to think that any of the witnesses were of bad character and that this was a speculative enquiry. It was postulated that information might be uncovered that might undermine the credibility of the prosecution witnesses. The LSC refused the application. By this time they were aware that there was to be an application for a stay and it was said that, in those circumstances, the application for funding was premature: a fresh application could be made at any time. To complete that part of the history, the LSC has now given a definitive refusal to the application for funding on the basis that the request was wholly unreasonable.
12. At the hearing of the application for a stay, it was argued that the forthcoming trial would not be fair because the defence had been unable to investigate the bad character of the prosecution witnesses. It was submitted, as presaged, that the ambit of bad character evidence had been greatly increased by the 2003 Act. Under Section 98 of the CJA 2003. evidence of bad character was defined as "evidence of, or a disposition towards, misconduct" other than that which related to the alleged facts of the offence before the court. Misconduct meant the commission of an offence or other reprehensible conduct. Thus the defence was entitled to know much more about the prosecution witnesses than merely whether they had previous convictions. It was entitled to know whether they had been guilty of or had had a disposition towards other forms of reprehensible conduct. At the moment, the only material routinely disclosed by the Crown relating to the character of witnesses was previous convictions. That was not enough. Much more was now necessary, extending to information about other types of reprehensible behaviour. The only practicable way of finding out about this kind of evidence was by the prosecutor requiring the police to make enquiries and to answer the questionnaire. It was not practicable for the defence to undertake such enquiries themselves. They had been refused funding and, in any event, it would be inappropriate for the defence to instruct an enquiry agent to look into such matters. The witnesses might find that intrusive or even intimidating. It would be far better for the police to do it. Such enquiries could easily be made as a matter of routine when witness statements were taken. If such enquiries were not made, the defence would be severely disadvantaged.
13. For the CPS, is was argued that the Criminal Justice Act 2003 had not changed the definition or scope of bad character. The scope of bad character had never been limited to previous convictions. The only change that had been made was that there was now a statutory definition which sought to encapsulate what had always been meant by bad character. The only change effected by the Act was that the judge had a discretion to exclude evidence of bad character. The Act provided criteria which were to be applied by the judge in making that decision. These provisions were designed to protect witnesses from intrusive exposure to irrelevant imputations against their character.

The imposition of a timetable, by which applications to admit evidence of bad character had to be made, did not cause any additional difficulty. Primary disclosure was always given at an early stage and, if secondary disclosure was to be given following the service of a defence statement, it would be done in good time for a defence application to be made to admit evidence of bad character. The prosecution's duties of disclosure in the investigation were clearly set out in the CPIA and the Code of Practice made thereunder. Reference was also made to the Attorney General's Guidelines of 2000, which gave further guidance to prosecutors about their duties of investigation disclosure. There was no evidence that these duties had not been complied with in the present case. The defence had not suggested that there was any reason to suppose that any of the witnesses was of bad character. If such evidence or suspicion was advanced, the prosecution would investigate it but the prosecution was only obliged to do what was reasonable in the circumstances. It was not obliged to make enquiries so as to answer a questionnaire such as this. If the police had to do this routinely in every case, not only would it use an unjustifiable amount of police resources but it would make witnesses unwilling to give evidence. The application should be refused.

14. The District Judge reserved his decision and produced a careful written judgment. He held, first, that the definition of bad character in the Criminal Justice Act 2003 had not extended the scope of evidence of bad character. The Act provided a statutory definition of that term. There is now no challenge to that finding of the District Judge. I say no more about it save that I am satisfied that the District Judge was right on that point.
15. Next, the District Judge considered the extent of the prosecution's duty of investigation and disclosure under the CPIA, the Code of Practice and the Attorney General's Guidelines. He summarised the two-stage procedure under the CPIA. He mentioned the informal practice whereby some material, often including previous convictions of Crown witnesses, is disclosed to the defence even before the time for primary disclosure. He mentioned that the Attorney General's guidelines advise that any material which might have an adverse effect on the prosecution case should be disclosed and noted that this would include anything which might go to the credibility of a witness. He noted the prosecutor's continuing duty to keep undisclosed material under review right up to the end of the trial in the light of evidence given. He referred, in addition, to the duty set out in the Code of Practice for Crown prosecutors to the effect that, when deciding whether to bring a prosecution, the prosecutor must examine the adequacy of the evidence and also consider whether the evidence is reliable. He should, under the Code, ask himself a series of questions, such as: was the witness's evidence likely to weaken the prosecution case?; did the witness have any motive that might affect his or her attitude to the case?; did the witness have any relevant convictions?; were there any concerns about the accuracy or capability of the witness and, if so, were these concerns based on evidence or simply on information with nothing to support them?; should the police be asked to seek out further evidence that might support or detract from the witness's account?
16. I interpose to say that, although the District Judge did not make the point, it goes without saying that if any information comes into the prosecutor's hands as a result of an enquiry made following the asking of such questions, the prosecutor would be under a duty to disclose any part of that material that tended to assist the defence or undermine the prosecution case.
17. The District Judge noted the duty of the prosecutor, as set out at paragraph 17 of the Attorney General's Guidelines, to tell the police officer in charge of the investigation if, in the prosecutor's view, "reasonable and relevant lines of further enquiry exist". The District Judge summarised the position by saying that the CPIA, the Attorney General's Guidelines and the Code of Practice for Crown Prosecutors all made clear the importance of the issue of the reliability and credibility of prosecution witness. He added:

"It is not therefore appropriate to suggest that, apart from convictions, this area of credibility and reliability is not addressed by the investigating authorities."

18. Third, the District Judge considered the reasonableness of requiring answers to a questionnaire such as had been served in this case. He said that, if such a questionnaire were put forward in every case, it would place a wholly unreasonable burden on the police. Not only that, but it would "pollute the atmosphere between the police and members of the public" if every time a police officer took a witness statement he also had to ask prying questions designed to find out if the witness had any propensities to reprehensible behaviour. The witness's memory might be hazy or faulty, so that the information might be inaccurate. Moreover, the information might well be irrelevant to the issues in the case. The District Judge noted that the purpose behind the new provisions of the Criminal Justice Act was to protect witnesses from intrusive and irrelevant cross-examination as to character. The purpose of these provisions would be undermined if the police had to ask such questions as were called for in the questionnaire. He also noted that, while the purpose of the disclosure regime in the Attorney General's Guidelines was to ensure a fair trial, it was also the intention that material should not be disclosed which overburdens the participants, diverts attention from the real issues, leads to unjustified delay and is wasteful of resources.

The District Judge then cited a passage from R v Guney [1998] Cr App 242 where, at page 257, Judge LJ said:

"The defence were entitled to be given information in the possession of the prosecution which has any relevance, or possible relevance, or realistically may lead to evidence which may undermine the prosecution case against the defendant or provide support for the defendant's case. This arises whether the defence make specific disclosure or not. A justified claim that material in the possession of the prosecution is relevant in the sense explained in the authorities must be distinguished from a forensically manufactured opportunity for a general trawl through the prosecution papers with the risk that the burden imposed on the prosecution will defeat the interests of justice by causing a discontinuance of the case whereas it would otherwise proceed."

The District Judge's overall conclusion on this aspect of the case was that questionnaires such as this would overburden the police, divert attention from the relevant issues and be wasteful of resources.

19. Fourth, the District Judge turned to consider the parties' submissions on the effect of secondary disclosure following the service of a defence statement. The CPS contended that, upon service of a defence statement, they would review their undisclosed material in the light of the content of the statement and would disclose anything further which appeared to be relevant which might help the defence or undermine the prosecution case. However, for the claimant, it was contended that enquiries as to character were essentially a matter for primary disclosure and the defence statement was unlikely to act as a trigger for any further disclosure of material relating to character. The District Judge expressed the view that that would depend upon what was said in the defence statement. For example, if it was alleged that a particular witness had been aggressive or abusive, that might result in further disclosure. The District Judge did not regard the secondary disclosure provisions as being of little importance in respect of disclosure of material relating to bad character.
20. Fifth, the District Judge considered the submission made on the claimant's behalf that the disclosure provisions were inadequate because they did not create any obligation on the prosecution or the police to investigate beyond the material which had already come into their possession. It had been submitted that the defence may have a concern that even on secondary disclosure, or at any subsequent review, they would not obtain the material they needed because the prosecution would not have made the necessary enquiries. The only way in which the defence would be sure that the prosecution had done what was necessary was by requiring answers to the questionnaire.

However, the District Judge rejected that submission, saying that it ignored the requirement on those involved in the investigation to look at the issue of credibility and also the duty of the prosecutor to direct further enquiries where necessary. Where evidence of unreliability was found, further enquiries might well follow. Any material helpful to the defence would have to be disclosed.

21. The sixth issue arose from the claimant's submission that there should be equality of arms between the parties at a criminal trial. There was not, because the prosecution had extensive resources to make such enquiries as they wished but the defence did not and unless and until the defence could obtain evidence of bad character, they could not even formulate an application to admit it. The District Judge considered that the duties imposed upon the investigators, disclosure officers and prosecutors to address the issues of character evidence were appropriate and that any restrictions on them were geared to ensuring that the trial focused on relevant issues and was not encumbered by irrelevant material.
22. Seventh, the District Judge considered European authorities to which he was referred. He concluded that none of them was of assistance and that no principle contrary to the provisions of the CPIA had been revealed.
23. The judge then briefly discussed an issue which was to feature quite prominently in the argument before this court. The CPS had more than once described the administration of the questionnaire as a fishing expedition. Their stance was that, if the defence were to advance any reason for thinking that a witness was guilty of reprehensible conduct, the prosecution would consider it at any stage and would make such further enquires as were reasonable. What they were not prepared to do was to embark on detailed enquiries of every witness whose evidence was to be challenged when there was no reason to suppose that there was anything to be found. The claimant's representative accepted that to some extent the questionnaire was speculative but argued that this was inevitable as the claimant and the prosecution witnesses did not know each other and the claimant and his advisers had no means of finding information that might be put forward to the prosecution so as to justify a request for further enquiries to be made. The District Judge said that defence enquiries of the prosecution should be focused and relevant to the issues in the case and should not take a broad-brush approach.
24. Finally, the District Judge considered whether any ground had been made out to justify a stay of proceedings on the basis that the trial could not be fair. He considered the complaint that the CPS had given a blanket refusal to the request for answers to the questionnaire. He accepted that a refusal to disclose material could amount to an abuse of process such as would justify a stay. However, he referred to the prosecution's assurance, given in September 2004, that they had no material to disclose and their further assurance that they remained ready and willing to address any other issues, either on receipt on a defence statement or on receipt of any focused request for further enquiries to be made. He, the District Judge, could not go behind those assurances. There was no abuse of process.
25. In this application, it is noteworthy that no specific criticism was made of the District Judge's judgment. The application before us was, in effect, a reiteration of almost all the arguments that had been canvassed before the District Judge. Were it not for the fact that the CPS has received many requests for questionnaires to be completed and wishes, for that reason, to have an authoritative ruling as to their duties in regard to answering them, I, for my part, would have been minded to refuse the application for permission to seek Judicial Review. However, as I have already said, because the matter is of some importance to the CPS, we granted permission and heard the full argument.

I do not intend to rehearse every argument again in detail. I have already set them out and explained how the District Judge dealt with them. In the event, as I shall explain, I agree with the District Judge on each and every issue.

26. First, does the Criminal Justice Act extend the scope of evidence of bad character beyond the scope at common law? The District Judge held that it did not and that it merely provided a statutory definition which sought to encapsulate the meaning of bad character as it had been understood at common law. Mr Elvidge, who appeared before this court for the claimant, conceded the point. In my view he was right to do so.

However, he sought to advance a different argument on the effect of the Criminal Justice Act provisions relating to bad character. He submitted that the introduction of the procedural timetable, according to which applications to introduce evidence of bad character have to be submitted, had had or should have had a significant effect on the prosecution's duties of investigation and disclosure. In my view, that argument is quite untenable. It is true that there is now an obligation on the defence to disclose in advance its intention to attack the character of a defence witness, whereas in the past the defence could spring a surprise attack. But that has made absolutely no difference to the prosecution's duties of investigation and disclosure. Indeed, when pressed to explain how the new procedural regime had affected the prosecution's duties, all Mr Elvidge could say was that the defence had to comply with the requirements promptly, otherwise the defence would be too late to put in their application. I am quite satisfied that the bad character provisions of the Criminal Justice Act 2003 have had no effect on the duties of the prosecution to make enquiries about the character or the reliability of a prosecution witness or the disclosure to the defence of the information relating to it.

At the time of the hearing before the District Judge, the duties of the prosecution were essentially as they had been since the CPIA 1996 came into force. Since that hearing and since the bulk of the Criminal Justice Act 2003 came into force in April 2005, the CPIA has been significantly amended. A new Code of Practice on disclosure has been published and the Attorney General has issued revised guidelines. None of those changes needs to trouble this court for the purpose of this judgment and I would add that none of the changes introduced this year will invalidate the principles to be expounded in this judgment.

27. At the heart of Mr Elvidge's submission was the contention that the CPIA, Codes of Practice and the Attorney General's Guidelines were all right as far as they went but they did not go far enough to safeguard the interests of the defendant, who wanted to find out if his accusers were of bad character, at least if he did not know them and was not in a position to make enquiries about them on his own account. The playing field could never be level if this situation was not rectified and trials could not be fair. The way to rectify this situation was to require that the prosecution should answer a questionnaire of the kind submitted in this case. Mr Elvidge did not suggest that the questionnaire submitted in this case was perfect or that it should necessarily be the template for future use. But he submitted that this questionnaire, or something like it, should be routinely used to provide the defence with information which they needed and could not otherwise obtain. He accepted that, to some extent, the questionnaire amounted to a fishing expedition. That, said Mr Elvidge, was inevitable in a case where the defendant did not know the witnesses concerned. He would have no way of finding that germ of evidence or suspicion that would justify the defence in making a targeted request of the prosecution for further information.

On examination of Mr Elvidge's submissions, it appeared to me that his real complaint was about the extent of the investigations that were carried out by the police rather than any complaint about the prosecutor's approach to disclosure. During the hearing, I expressed the view that the prosecutor's duties of disclosure were now well established, particularly since the House of Lords decision in R v H and others [2004] UKHL, page 3. I did not understand Mr Elvidge to dissent from that proposition. He does not complain about non-disclosure of material that is in the prosecutor's possession. Rather, he complains that the prosecutor will not obtain the material that Mr Elvidge thinks ought to be obtained.

In support of his submission that the present arrangements are not good enough, Mr Elvidge submitted that, in most cases, the prosecutor's duty to consider questions of credibility and reliability before deciding whether to prosecute were honoured more in the breach than the observance. He did not challenge the District Judge's description of the duties of the prosecutor under the prosecutor's Code of Practice. His complaint was that all the police usually did was to look at the witness's previous convictions. He had no confidence that any other enquiries were routinely made. There might well be all manner of information available but if the police did not look for it, the defence had no chance of getting hold of it. There was no evidence, either before the District Judge or before this court, to support the allegation that all the police usually do is to look at previous convictions.

28. Mr Waterman, for the Crown Prosecution Service, who appeared before this court as an interested party, submitted first that there was no warrant for the allegation that this was all that the police usually did. The prosecutor was under a duty to consider issues of reliability and to make enquiries that were appropriate to the facts and circumstances of the individual case. The prosecutor was also under a duty to suggest further lines of enquiry to the police if he thought it necessary. In the absence of evidence that that was not happening, it should be assumed that it was. Mr Waterman submitted further that it would not be practicable to lay down rules about what enquiries should be made. The circumstances of different cases were too variable and the kind of information that was "out there in the ether" was too extensive to permit of such an operation.
29. I for my part accept Mr Waterman's submission on this issue. Parliament and the Attorney General have laid down certain duties of investigation for the police and prosecutors. Unless evidence is produced to show that these are not being complied with, the court must assume that they are. I also accept that it would be impractical for the Attorney General or the police authorities to lay down detailed rules about what enquiries should be made about the character of witnesses. I would, however, say that it is important that police and prosecutors should be fully aware of the nature of the investigative tools that are available to them and should be encouraged by appropriate training to make proper use of such tools. It may well be that the existence of such training would go some way towards alleviating the suspicion, which is plainly harboured by some, that the police do not do enough in this regard. However, that observation falls far short of any suggestion that the present Code of Practice does not adequately protect the interests of defendants.
30. Mr Elvidge submitted that the District Judge had been wrong to say that the administration of a questionnaire would impose unreasonable burdens on the police and prosecuting authorities. If such a questionnaire were necessary in the interests of justice, the resource implications had to be faced. In any event, he submitted, the problems had been greatly exaggerated. He said that some of the information would be available on a computer database, although he was not able to produce any definite information about what was available on the database. Other parts of the information, he said, could be obtained by local police officers making enquiries of the witnesses, either at the time they gave their statements or later.

Mr Waterman submitted that the resource implications would be enormous and that officers would be so busy completing questionnaires that they would have to be taken off investigative work. That was not in the public interest. He also submitted that the effect of quizzing the witnesses about their background would make them unwilling to cooperate with the police and the prosecution in giving evidence. Such a process would undermine the objectives of the new provisions of the Criminal Justice Act, which was to protect witnesses from unwarranted, irrelevant or intrusive questioning about matters unrelated to the factors of the case.

31. In giving judgment, the District Judge had mentioned all these factors as reasons why it would be wholly unreasonable to expect the police to deal with questionnaires such as this. I agree with what he said. I do, however, accept one aspect of Mr Elvidge's submissions. It is that, if the interests of justice require that resources are found for a particular purpose, then they must be found and the fact that this causes difficulty and expense must be borne with fortitude. It is not many years since the Court of Appeal Criminal Division declared that the duties of disclosure on the prosecution were much wider than had been the practice until that time. There was widespread dismay that disclosure would be too costly in terms of both money and police time. However, this expense had to be borne in the interests of justice. For a while after that, disclosure gave rise to very real resource problems because the ground rules were not clear. The CPIA 1996 was enacted in order to place reasonable limits on disclosure and to provide ground rules. No doubt there are continuing resource implications but everyone now accepts that these must be borne. The real question here is whether the kind of investigation called for by Mr Elvidge is necessary in the interests of justice. In my judgment it is not. In my judgment, what is necessary in the interests of justice is investigation that is reasonable in the circumstances of the individual case. The gravity of the offence charged will be an important factor. So far as the investigation of character is concerned, the centrality of a particular witness's evidence to the prosecution case will be important. But I am quite satisfied that it cannot be said that the interests of justice require that, in every case, comprehensive enquiries are made about the character of every prosecution witness whose evidence is to be challenged. That is not to say that the present methods and practices of investigation of character are perfect and beyond improvement. As I have said, it may well be that some further guidance and training could usefully be given to police and prosecutors about how to go about their duties of investigating the character of witnesses. Almost any system is capable of improvement.
32. Mr Elvidge argued before us, as had been argued before the District Judge, that the CPS had acted unreasonably in refusing to consider the questionnaire in the light of the facts of the individual case. They had sent an absolute refusal in every case, not only in this one. That showed, he submitted, that they were not considering each case on its facts.
33. In my the judgment, the response of the CPS to the request in this case was not only reasonable, it was entirely proper. The CPS complied with primary disclosure. It informed the defence that none of the prosecution witnesses had any criminal convictions and stated that there was no unused material which required disclosure. There is no challenge to the adequacy of the compliance with the duty of primary disclosure. No defence statement had apparently been served so secondary disclosure did not arise. In any event, the prosecution was well aware of the nature of the defence and that the credibility of the five witnesses was in issue. That knowledge imposed upon the prosecution the duty to disclose any information about character that was in their possession which had not already been disclosed. There is no suggestion that they have not complied with that duty. They have held themselves out as ready and willing to respond to any further information that the defence may submit which gives rise to a suspicion or belief that one or more of the witnesses may be of bad character. But, in the absence of such further information which would trigger further enquiries, they are not prepared to embark on a general trawl. In my judgment, the CPS approach cannot be faulted. They appear to have done, and to be ready to do, all that the law requires of them.

Mr Elvidge submitted that the law should require more of the prosecution. It may be that, over the years, the duties on the prosecution or police to investigate such matters as the character of witnesses will change. They may increase but I for my part regard it as inconceivable that it will ever be thought necessary or appropriate in the interests of justice that the prosecution or police should have to undertake the kind of enquiries contended for in this case. The request for completion of this questionnaire in this case was wholly unreasonable.

For the reasons he gave, the District Judge was right to refuse to grant a stay on the prosecution. For the reasons that I have given, I would refuse this application for Judicial Review.

34. MR JUSTICE SIMON: I agree.
35. LADY JUSTICE SMITH: Mr Elvidge, this application is refused.
36. MR ELVIDGE: Yes. My Lady, I wonder if you would entertain an application to certify a question in this case and leave to appeal.
37. LADY JUSTICE SMITH: This is a criminal matter. It would have to go to the House of Lords, if that is what you mean. Have you drafted the question?
38. MR ELVIDGE: Yes, there is a question which both of us considered.
39. LADY JUSTICE SMITH: Will you pass it up or read it out?
40. MR ELVIDGE: It may be easier to read it out.
41. LADY JUSTICE SMITH: If it is on the computer I think you might have to read it out.
42. MR ELVIDGE: (1) When does a duty arise for a primary prosecution to enquire into or to investigate the bad character of a prosecution witness? (2) when such a duty arises, what is the scope of that duty? (3) Is that duty any different following the implementation of Chapter 1 of part 11 of the Criminal Justice Act 2003 and the applicable rules of criminal procedure?
43. It is a three-stage question. I am sorry it is not in--
44. LADY JUSTICE SMITH: It is all right. Do you want to say anything in support of that application?
45. MR ELVIDGE: My submission is that this case does raise important issues with regard to the investigation of cases, so that the parties note the extent of enquiries that are going to be made about witnesses who may be important in a criminal case.
46. MR JUSTICE SIMON: Speaking for myself, I am afraid I did not catch what the questions were. It is rather important I think that--
47. MR ELVIDGE: Yes, forgive me.
48. MR JUSTICE SIMON: "When does a duty--"
49. MR ELVIDGE: "... arise requiring the prosecution to enquire into or to investigate the bad character of a prosecution witness?" Secondly, "when such a duty arises, what is the scope of that duty?" Thirdly, "is that duty any different following the implementation of Chapter 1 of Part 11 of the Criminal Justice Act 2003 and the applicable rules of criminal procedure?"
50. What I would submit is that there is a gap, presently, in the material which the prosecution work with. The prosecution was observed to disclose material in its possession but the duties of investigation to obtain such information are a little less clear.
51. LADY JUSTICE SMITH: Mr Waterman, do you want to say anything?
52. MR WATERMAN: My Lady, I think in light of the ruling I am happy with those applications.
53. LADY JUSTICE SMITH: We will retire.
(A Short Break)
54. LADY JUSTICE SMITH: No, I am sorry Mr Elvidge. You will have to make your representations elsewhere. Your application is refused.
55. MR ELVIDGE: My Lady, the claimant in this case, Mr Gleadall, is supported by the Legal Services Commission. I do not know if my learned friend is likely to make an application in respect of the costs of the interested party. In the light of the nature of the claimant's funding, would you make an appropriate direction in regard to it.
56. MR WATERMAN: Well, I do make an application for costs. The interested party has been the only party to defend the claim and had the defendant, in the Magistrates Court, made similar arguments, we would have no standing for costs. I accept that the claimant is legally funded and that we would not get anything in reality but nonetheless I do make an application for costs in the usual terms, which I cannot remember off the top of my head. I was in the process of trying to find out--
57. LADY JUSTICE SMITH: To the effect that you will have your order for costs but it is not to be reinforced without leave of the court.
58. MR WATERMAN: To that effect, yes.
59. LADY JUSTICE SMITH: Well, you have no objection to that, I take it?
60. MR ELVIDGE: No, indeed not.
61. LADY JUSTICE SMITH: The order will be made in the appropriate wording to give effect to what I have just indicated.
62. MR ELVIDGE: I am not clear. The reason I was surfacing was as to whether or not I require a further order in relation to the claimant's costs.
63. LADY JUSTICE SMITH: An order for --
64. MR ELVIDGE: Taxation for his costs.
65. LADY JUSTICE SMITH: If you need it you may have it.
66. MR ELVIDGE: Thank you very much.
67. MR WATERMAN: Just before the next matter is called on, you will have noted that we were both taking as full a note as we could of your Ladyship's ruling. You will also understand the complex cases that are awaiting this ruling, that the Crown Prosecution Service will wish to have it as soon as possible. I am not asking for anything, I am enquiring as to how we might go about getting that in the normal course of events.
68. LADY JUSTICE SMITH: A transcript will be produced fairly quickly. I then have to correct it and I must confess I am under a certain amount of pressure but I can give it priority. We do appreciate --
69. MR WATERMAN: We do not seek to press you.
70. LADY JUSTICE SMITH: It is plainly a matter of importance to you.