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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Brown, R v. [1997] UKHL 33; [1998] AC 367; [1997] 3 All ER 769; [1997] 3 WLR 447; [1998] 1 Cr App Rep 66 (24th July, 1997)
URL: http://www.bailii.org/uk/cases/UKHL/1997/33.html
Cite as: [1998] 1 Cr App Rep 66, [1997] UKHL 33, [1997] 3 All ER 769, [1998] AC 367, [1997] 3 WLR 447, [1998] 1 Cr App R 66

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Brown, R v. [1997] UKHL 33; [1998] AC 367; [1997] 3 All ER 769; [1997] 3 WLR 447; [1998] 1 Cr App Rep 66 (24th July, 1997)

HOUSE OF LORDS

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

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

REGINA

v.

BROWN
(APPELLANT)
ON 24 JULY 1997

LORD GOFF OF CHIEVELEY

My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Hope of Craighead. For the reasons he gives I would dismiss the appeal.

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 Hope of Craighead. For the reasons he gives I would dismiss the appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

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

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

The Facts

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

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

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

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

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

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

The Common Law Duty of Disclosure

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

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

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

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

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

He went on to observe:

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

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

Reg. v. Melvin

In the Court of Appeal in the present case Steyn L.J. said at p. 1606H that the test suggested by Jowitt J. was one which that court also would adopt. He added that the phrase "an issue in the case" must not be construed in the same way as in a civil case and must receive a broad interpretation. He drew attention to the fact that, while in a civil case a party is not entitled to discovery in respect of the credit of a party or a witness, in a criminal case the Crown is under a duty to give disclosure of significant material which may affect the credibility of a Crown witness. He gave three examples at p. 1607A-D:

Archbold&!!;s Criminal Pleading, Evidence and Practice

Reg. v. Taylor

Reg. v. Rasheed

Wilson v. Police

I agree with the view which was taken in the Court of Appeal that the phrase "an issue in the case" must be given a broad interpretation. The same may be said of the phrase "all relevant evidence of help to the accused" in the passage from Lawton L.J.&!!;s judgment in Reg. v. Hennessy (Timothy) which was adopted in Reg. v. Ward [1993] 1 W.L.R. 619, 645G. But the common law rules are concerned essentially with the disclosure of material which has been gathered by the police and the prosecution in the course of the investigation process for use in the case to be made for the Crown. In the course of that process issues of fact will have been identified which may assist or undermine the Crown case. The prosecution is not obliged to lead evidence which may undermine the Crown case, but fairness requires that material in its possession which may undermine the Crown case is disclosed to the defence. The investigation process will also require an inquiry into material which may affect the credibility of potential Crown witnesses. Here again, the prosecution is not obliged to lead the evidence of witnesses who are likely in its opinion to be regarded by the judge or jury as incredible or unreliable. Yet fairness requires that material in its possession which may cast doubt on the credibility or reliability of those witnesses whom it choose to lead must be disclosed. The question whether one or more of the Crown witnesses is credible or reliable is frequently one of the most important "issues" in the case, although the material which bears upon it may be, as Steyn L.J. observed, at p. 1607D, collateral.

Credibility of the Defence Witnesses

But what of material relating only to the credibility of the defence witnesses? There is no guidance in these cases as to whether the duty of disclosure extends this far. The point, as Steyn L.J. put it, at p. 1608D, is a novel one. In the Court of Appeal it was held that the Crown was not under a legal duty to disclose material which adversely affected only the credibility of a defence witness. It was accepted that such information was relevant--as it had to be, because the credibility of every witness as to matters of fact is an issue which the jury has to resolve, and the defence witnesses are in no different position in that regard from the witnesses for the Crown. But the burden which such a duty would impose on the Crown was said to be excessive and unnecessary. On the one hand there were practical problems which might make the duty difficult to perform. On the other hand there was the fact that the defendant&!!;s solicitor was in a position to conduct his own inquiries into the witness&!!;s past history or other matters which might affect his credibility. So the public interest and fairness did not require the disclosure of Gordon&!!;s earlier statement that he had been drunk or Pinnock&!!;s statement that he was withdrawing his statement because of threats. A further argument affecting Pinnock&!!;s evidence, which arose out of the fact that a negative answer was given when the defence asked whether he had made a statement withdrawing his earlier statement, was rejected because the inference that he had done so was obvious and the defence were not in any material sense misled.

Mr. Henriques submitted that it was not possible to separate issues relating to the credibility of the defence witnesses from the issues of fact raised by the defence case. At best, the distinction between issues of fact and credibility was a fine one which, in fairness, ought not to be made. In the present case the defendant had given notice of the defence of alibi. The prosecution were aware that the question whether the defendant was at the scene of the crime was an issue in the case. It was a critical issue relating to the question whether the defendant was the man who stabbed Michelle Patrick. It was clear that, in view of Gordon&!!;s statement to the police that he was drunk at the time, there was material in the possession of the prosecution which was detrimental to the defence case. So also, in Pinnock&!!;s case, they had his statement that he had decided to withdraw his statement implicating the defendant because of threats. This information also was detrimental to the defence case if they were to use him as a witness on their behalf. Had this information been disclosed to the defence he would not have been called as a defence witness, nor would Gordon have been called as a witness in support of the alibi.

Two questions must therefore be addressed: (1) Is it reasonable to distinguish material which may assist the defence case from material which relates only to the credibility of the defence witnesses; and (2) Is it consistent with the general principle of fairness to say that the Crown is not under a legal duty to disclose material which is relevant only to a defence witness&!!;s credibility? It should be understood that, in posing these questions, I am concerned not with the defendant but only with the defence witnesses.

As to the answer which should be given to the first question, there is no doubt that in practice the credibility of a witness is frequently tested by reference to material which is not directly relevant to the issues of fact which the judge or jury have to decide--material which, to adopt Steyn L.J.&!!;s expression, is collateral. Questions which are directed to the character of the witness provide one example. The fact that a witness has previous convictions, especially for crimes which imply dishonesty or disrespect for the law, may be of great significance in regard to issues of credibility. But it has nothing to do with the question whether the offence with which the defendant is charged was committed or whether it was the defendant who committed the offence. If the witness is not called on to give evidence, evidence of his previous convictions will be irrelevant and inadmissible. It will have no bearing whatever on the facts of the case. Other facts or circumstances may be used which are entirely irrelevant to the issues of fact as to the defendant&!!;s guilt or innocence, such as things done or said by the witness which may indicate a prejudice for or against the defendant. The same may be said of material regarding the capacity of the witness to observe or recall the events spoken to in his evidence. Here again if the witness is not called to give evidence this material will be irrelevant.

There are, of course, cases where the question of credibility is so intimately bound up with the facts that the two cannot reasonably be separated. A good example of this is where an account is given by the witness of his recollection of events which contains within it contradictions or inconsistencies which cast doubt on his reliability. Another is where his account is contradicted by other witnesses, so that the issues of credibility and reliability have to be decided by assessing the weight of the evidence. So it is not possible to say that material relating to the credibility of defence witnesses will always be distinguishable from the issues of fact relating to the defendant&!!;s guilt or innocence. But it is enough for an affirmative answer to the first question to say that much of the material which is regularly used in practice to test a witness&!!;s credibility is entirely irrelevant to the question whether the defendant is guilty or innocent of the offence with which he is charged. In the case of the defence witnesses in particular, the issues of fact raised by the defence case do not exhaust the material which may be used by the prosecutor to test their credibility.

As to the second question, the principle of fairness lies at the heart of all the rules of the common law about the disclosure of material by the prosecutor. But that principle has to be seen in the context of the public interest in the detection and punishment of crime. A defendant is entitled to a fair trial, but fairness does not require that his witnesses should be immune from challenge as to their credibility. Nor does it require that he be provided with assistance from the Crown in the investigation of the defence case or the selection, on grounds of credibility, of the defence witnesses. The legal representation to which he is entitled, usually with the benefit of legal aid, has the responsibility of performing these functions on his behalf. To repeat the words of Lord Diplock in Dallison v. Caffery [1965] 1 Q.B. 348, 375, the duty of the prosecutor is to prosecute, not to defend. The important developments in the prosecutor's duty of disclosure since he wrote these words have not altered the essential point that there is a difference between the functions of the prosecutor and those of the defence. The prosecutor's duty is to prosecute the case fairly and openly in the public interest. It is not part of his duty to conduct the case for the defence.

The common law rules which I have described are designed to ensure the disclosure of material in the hands of the prosecutor which may assist the defence case. But, once that duty has been satisfied, the investigation and preparation of the defence case is a matter for the defence. That includes the tracing, interviewing and assessment of possible defence witnesses. And material which may assist the defence case can be distinguished from material which may undermine it or may expose its weaknesses. The adversarial system under which trials in this country are conducted applies to the examination of witnesses in support of the defence case in the same way as it does to the examination of the witnesses for the Crown. No witness enters the witness box with a certificate which guarantees his credibility. Every witness can expect to be cross-examined upon the veracity or reliability of his evidence. Cross-examination which is directed only to credibility may lose much of its force if the line is disclosed in advance. This weakens the opportunity for the assessment of credibility by the jury or, in a summary case, by the justices. To insist on such disclosure would, sooner or later, undermine the process of trial itself. It would protect from challenge those who were disposed to give false evidence in support of a defence which had been fabricated. That would be to tip the scales too far. Justice would not have been done.

Conclusion

I would be inclined to attach less weight to the practical problems than that which was given to them by the Court of Appeal. If fairness demands disclosure, then a way of ensuring that disclosure will be made must be found. But it is a fact that in many cases, other than those to which the special rules apply relating to alibi, the defence does not disclose the identity of its witnesses until a late stage. It would place a substantial burden on the Crown for it to be expected to retain, and be ready to disclose at short notice, material which might possible relate to the credibility only of those whom the defence might possibly wish to call as its witnesses. It would also be unreasonable to expect the prosecutor to reveal information relating to the credibility of defence witnesses previously unknown to the Crown whose credibility did not require to be investigated until their identity was made known to the prosecutor. Yet, if there was a legal duty which required the disclosure of information relating to the credibility of the defence witnesses, there would be no answer to such a demand.

In Reg. v. Williams (Michael) (unreported), 15 April 1994 it was argued that wherever the Crown have, as a result of their investigation of the contents of a notice of alibi, found material which goes to disprove the alibi, they must call it as part of the prosecution case. Rejecting that argument, the Court of Appeal went on to agree with the trial judge that it would be absurd if the prosecutor, having investigated the alibi, were to be obliged to reveal to the defence a statement from a witness which suggested that the alibi might be a false one. A similar issue was raised in Reg. v. Seymour (unreported), 19 December 1995 where the basis of the appeal was that a material irregularity had occurred because the prosecution had failed to disclose to the defence that they were in possession of a statement signed by a defence witness as to alibi which was used to cross-examine her when she gave evidence. Delivering the opinion of the court, Judge J. said, in a passage which is at one with the approach which I commend to your Lordships:

Fairness, so far as the preparation of the defence case and the selection of the defence witnesses are concerned, is preserved by the existing rules of disclosure and by ensuring that the defendant has adequate time and facilities for the preparation of his defence. That right, which is to be found also in Article 6.3(b) of the European Convention of Human Rights, has for long been part of our law relating to the conduct of criminal trials. The investigation for which the defence are responsible extends to all matters which may affect the credibility of the defence witnesses. The preparation of the defence case is not complete until this has been done. Once it has been completed, the defence can be assumed to be in possession of all that is needed to decide which witnesses to lead and which to reject on grounds of credibility. It is unnecessary to extend the duty of disclosure by the prosecutor any further to ensure that the defendant has a fair trial.

For these reasons I would answer the certified question in the negative and dismiss the appeal.

LORD CLYDE

My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hope of Craighead. For the reasons he gives I would dismiss the appeal.

LORD HUTTON

My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hope of Craighead. I agree with it and for the reasons he gives I would dismiss the appeal.