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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Mills and Poole, R v. [1997] UKHL 35; [1998] AC 382; [1997] 3 All ER 780; [1997] 3 WLR 458; [1998] 1 Cr App Rep 43 (24th July, 1997)
URL: http://www.bailii.org/uk/cases/UKHL/1997/35.html
Cite as: [1997] 3 WLR 458, [1998] 1 Cr App R 43, [1998] AC 382, [1997] UKHL 35, [1997] 3 All ER 780, [1998] 1 Cr App Rep 43

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Mills and Poole, R v. [1997] UKHL 35; [1998] AC 382; [1997] 3 All ER 780; [1997] 3 WLR 458; [1998] 1 Cr App Rep 43 (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.

MILLS
(APPELLANT)

REGINA

v.

POOLE
(APPELLANT)

ON 24 JULY 1997

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. 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. For the reasons he gives I too would dismiss the appeal.

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. 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. For the reasons he gives I would dismiss the appeal.

LORD HUTTON

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 to the defence.

The two appellants 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 L.J., Ian Kennedy J. and Keene J., granted extension of time and leave to appeal against conviction to the two appellants. 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 Reg v. Winston Brown, 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.

The Facts

On the night of 5/6 January 1989 four men were in the room of the appellant Poole in a house at 34 Conduit Street, Gloucester. They were the appellant Poole, the appellant Mills, a man named Ian Christopher Juke and a man named Hensley Hendricks Wiltshire. The appellants 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 a.m. 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 a.m. 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 p.m. and 3.30 p.m. 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 blood stream and led to embolisms which brought about his death.

It was the Crown case that both appellants 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 appellant Mills were 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 appellant 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 onto a settee and then onto 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 onto 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 appellants just outside her flat and the appellants 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 learned trial judge referred to provocation as a possible defence which the jury should consider. In his evidence the appellant 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 eleven 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 beatings, 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 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:

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 a.m. 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 enquiry 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 appellants, and stated:

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 twelve 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 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:

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:

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:

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 appellants. 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] Cr. App. R. 538 at p. 544G:

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 paragraphs 2 and 6(ii) and (iii) of the Attorney-General's guidelines issued in 1982, 74 Cr. App. R. 302, 303:

As Steyn L.J. observed in delivering the judgment of the Court of Appeal in R. v. Winston Brown [1995] Cr. App. R. 191, 196C 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 appellants, 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 appellant 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 Rex v. Bryant and Dickson 31 Cr.App.R. 146, Dallison v. Caffery [1965] 1 Q.B. 348, Regina v. Lawson 90 Cr.App.R. 107 and Regina v. Ward 96 Cr.App.R. 1 and Regina v. Winston Brown [1995] Cr.App.R. 191 and then stated:

Regina v. Lawson

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 appellants had obtained copies of Juke's two statements to the police after the trial and before the hearing of the appeals, neither appellant 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 appellants) to call Juke to give evidence before it and the Court examined Juke and heard his evidence. Mr. Mansfield QC for the appellant Mills and Mr. Stewart QC for the appellant Poole declined the opportunity to cross-examine Juke, but he was cross-examined by Mr. Chadd Q.C. 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 as follows:

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 appellants by Mr. Mansfield QC 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.

Prior to 1 January 1996 under section 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 new section 2(1) was substituted by section 2 of the Criminal Appeal Act 1995 as follows:

this Act

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 appellants 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 appellants 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 Ward, in the context of section 2(1) of the 1968 Act before it was amended by the 1995 Act, addressed this issue and stated at 643C:

section 2

c

Regina v. Maguire

Practice Note (Criminal Evidence: Unused Material

Regina v. Maguire

section 2

a

However I consider, with respect, that the distinction referred to by the Court of Appeal (which was of little practical significance in Ward's case) should not be adopted by Your Lordships. I am of this opinion because, as the Court of Appeal observed in Regina v. Maguire [1992] 1 Q.B. 936, 957D, 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:

Regina v. Paraskeva,

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 Appeal delivered by Lord Goddard C.J. in 1946 in Rex 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 Dickson was the major shareholder and where the defendant Bryant worked. The report stated the facts as follows:

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 that:

The argument was rejected by the Court of Appeal, Lord Goddard stating at p. 151:

In Dallison v. Caffery [1965] 1 Q.B. 348, 369A Lord Denning M.R. stated:

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 was restating the practice formulated in Bryant and Dickson. I shall hereafter refer to this practice as "the rule in Bryant and Dickson".

The judgment of the Court of Appeal in Regina v. Lawson 90 Cr.App.R. 107 was delivered in June 1989 and in that case also the Court of Appeal accepted that the rule in Bryant and Dickson 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 appellants by Mr. Mansfield was that the rule in Bryant and Dickson 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 appellants. 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 Regina v. Davis, Regina v. Ward, and Regina v. Keane. In Ward at page 645F the court stated that the rules relating to disclosure by the prosecution:

Regina v. Leyland Justices, Ex parte Hawthorn

Regina v. Hennessey (Timothy)

Code of Conduct of the Bar

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 appellants 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 section 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 head note reads:

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 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 Q.C. that this was not the practice on the Western Circuit where the rule in Bryant and Dickson still applies.

Mr. Mansfield further relied on the Consultation Document on Disclosure presented to Parliament by the Home Secretary in May 1995. In Chapter 4 relating to Primary Prosecution Disclosure paragraph 42 states:

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 Bryant and Dickson 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 Ward was not directly concerned with the rule in Bryant and Dickson, 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 at 679H:

Archbold, Criminal Pleading Evidence and Practice

Regina v. Lawson,

Regina v. Lawson

Mr. Chadd also relied on the judgments of the Court of Appeal in Regina v. Williams (unreported), 15 April 1994, and Regina v. Seymour (unreported), 19 December 1995. 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 appellants, 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 appellants. However, notwithstanding the force of these arguments, I have come to the conclusion for the following reasons that the rule in Bryant and Dickson 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 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 Bryant and Dickson. I further consider that the judgments in Williams and 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 Seymour when Judge J. stated:

The judgment of the Supreme Court of Canada in Regina v. Stinchcombe is also a strong persuasive authority in support of the argument of the appellants. Sopinka J. stated at page 7:

And at page 8:

Moreover, as the Court of Appeal stated in Regina v. Lawson, an inflexible application of the rule in Bryant and Dickson can lead to injustice. An obvious example is where, as occurred in Stinchcombe, the witness who has made the statement to the police refuses to be interviewed by the defence. In 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 page 115:

Archbold

Bryant and Dickson

The Court went on to state:

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

Regina v. Lawson.

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 Bryant and Dickson the defence will always know of the existence of the witness and there are obvious differences between 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 C.J. in Regina v. Davis 97 Cr.App.R. 110, 114:

Ward

Accordingly I would hold that the rule in Bryant and Dickson 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 appellants, 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 appellants, nevertheless the information which Juke gave to Mr. Gadd, the solicitor for the appellants, 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 as follows:

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 appellants 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.