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Owusu-Bempah, Abenaa (2013)
Publisher: Vathek
Languages: English
Types: Article
Subjects: K
The Criminal Procedure and Investigations Act 1996 imposed, for the first time in the history of English criminal procedure, a general duty on the defence to disclose the details of its case ahead of trial. These disclosure requirements have been augmented by the case management provisions of the Criminal Procedure Rules and judicial responses to the perceived need to tackle ambush defences. The defence disclosure regime has changed the role of the defence as a participant in the criminal process. It raises issues of principle in terms of its effect on fai r trial rights and has implications for the nature of English criminal procedure. This article examines these issues and implications; it reveals that the defence disclosure regime has caused a shift in the English criminal process further away from an adv ersarial style contest towards a participatory model of procedure.
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    • 2 R. Leng, 'Losing Sight of the Defendant: the Government's Proposals on Pre-trial Disclosure' [1995] Crim LR 704.
    • 3 It has become a fundamental principle that a defendant should not be tried without knowing the nature of the case against him. See Art. 6(3) of the European Convention on Human Rights; Jespers v Belgium (1981) 27 DR 61; Edwards v United Kingdom (1992) 15 EHRR 417; Secretary of State for the Home Department v F [2009] UKHL 28, [2010] 2 AC 269. Furthermore, Art. 6(1) of the European Convention on Human Rights requires that 'the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused'. See Rowe and Davis v United Kingdom (2000) 30 EHRR 1 at 60.
    • 4 R. Morgan, 'The Process is the Rule and the Punishment is the Process' (1996) 59 MLR 306.
    • 5 R v Keane [1994] 1 WLR 746.
    • 6 CPIA, s. 3, as amended by the Criminal Justice Act 2003. This provision is broader and more objective than the original s. 3, which provided for disclosure of material 'which in the prosecutor's opinion might undermine the case for the prosecution against the accused'.
    • 7 See, for example, S. Summers, Fair Trials: The European Criminal Procedural Tradition and the European Court of Human Rights (Hart: Oxford, 2007); J. Hodgson, 'The Future of Adversarial Criminal Justice in 21st Century Britain' (2010) 35 North Carolina Journal of International Law and Commercial Regulation 319; J. McEwan, 'From Adversarialism to Managerialism: Criminal Justice in Transition' (2011) 31 Legal Studies 519.
    • 8 For further discussion on the nature of the adversarial system, see S. Landsman, The Adversary System: A Description and Defence (American Institute for Public Policy Research: Washington, 1984); M. Damaska, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (Yale University Press: New Haven, 1986); J. H. Langbein, The Origins of the Adversary Criminal Trial (Oxford University Press: Oxford, 2003); P. Van Kopen and S. Penrod, Adversarial Versus Inquisitorial Justice: Psychological Perspectives on Criminal Justice Systems (Kluwer Academic/Plenum Publishers: New York, 2003).
    • 9 Langbein, in particular, attributes the role of defence counsel during the rise of adversarialism to the defendant's ability to exercise fair trial rights, such as the privilege against self-incrimination, which allow him to take a passive role. J. H. Langbein, 'The Historic Origins of the Privilege Against Self-incrimination at Common Law' (1993) 92 Michigan Law Review 1047; Langbein, above n. 8.
    • 10 H. Packer, The Limits of the Criminal Sanction (Stanford University Press: Stanford, 1968) 158.
    • 11 See, for example, Royal Commission on Criminal Justice, Report (HMSO: London, 1993); Home Office, Justice for All, Cm 5563 (HMSO: London, 2002).
    • 12 See, for example, Royal Commission on Criminal Justice, above n. 11; Lord Justice Auld, Review of the Criminal Courts of England and Wales (TSO: London, 2001).
    • 13 See, for example, the Criminal Justice and Public Order Act 1994, ss. 34-39. These provisions limit the accused's right to silence by allowing adverse inferences to be drawn in certain situations.
    • 25 M. Redmayne, 'Criminal Justice Act 2003: (1) Disclosure and its Discontents' [2004] Crim LR 441 at 445. For two recent cases concerning the applicability of s. 11, see R v Gregory [2011] EWCA Crim 3276 and R v Haynes [2011] EWCA Crim 3281.
    • 26 Plotnikoff and Woolfson found that 41 per cent of defence statements contained a bare denial of guilt, and a further 13 per cent fell short of the requirements set out for them: J. Plotnikoff and R. Woolfson, A Fair Balance? Evaluation of the Operation of Disclosure Law (Home Office Research, Development and Statistics Directorate: London, 2001) 55.
    • 27 Lord Justice Gross and Lord Justice Treacy, Further Review of Disclosure in Criminal Proceedings: Sanctions for Disclosure Failure (Judiciary of England and Wales: London, 2012).
    • 28 See Royal Commission on Criminal Justice, above n. 11 at ch. 6.
    • 29 Ibid. at 22.
    • 30 [2003] EWCA Crim 3357, [2004] 1 Cr App R 29.
    • 36 Rule 3.2(2)(a).
    • 37 See, for example, R (on the application of DPP) v Chorley Justices and Andrew Forrest [2006] EWHC 1795 (Admin); Malcolm v DPP [2007] EWHC 363 (Admin), [2007] 1 WLR 1230; Brett v DPP [2009] EWHC 440 (Admin), [2009] 1 WLR 2530; Writtle v DPP [2009] EWHC 236 (Admin), [2009] RTR 28; R v Penner [2010] EWCA Crim 1155; R (on the application of Santos) v Stratford Magistrates' Court [2012] EWHC 752.
    • 38 R (on the application of Firth) v Epping Magistrates' Court [2011] EWHC 388, [2011] 1 WLR 1818 at [5].
    • 39 [2007] EWCA Crim 1237, [2007] 1 WLR 2467.
    • 40 [2012] EWCA Crim 319.
    • 44 I. Dennis, 'The Human Rights Act and the Law of Evidence Ten Years On' (2011) 33 Sydney Law Review 333 at 354.
    • 45 See H. L. Ho, 'Liberalism and the Criminal Trial' (2010) Singapore Journal of Legal Studies 87; H. L. Ho, 'The Presumption of Innocence as a Human Right' in P. Roberts and J. Hunter (eds.), Criminal Evidence and Human Rights: Reimagining Common Law Procedural Traditions (Hart: Oxford, 2012) 259.
    • 46 See, for example, Salabiaku v France (1988) 13 EHRR 379; Murray v United Kingdom (1996) 22 EHRR 29; Saunders v United Kingdom (1997) 23 EHRR 313.
    • 47 See, for example, Jalloh v Germany (2007) 44 EHRR 32; O'Halloran and Francis v United Kingdom (2008) 46 EHRR 21.
    • 48 A. Ashworth, 'The Exclusion of Evidence Obtained by Violating a Fundamental Right: Pragmatism Before Principle in the Strasbourg Jurisprudence' in P. Roberts and J. Hunter (eds.), Criminal Evidence and Human Rights: Reimagining Common Law Procedural Traditions (Hart: Oxford, 2012) 147.
    • 49 M. Redmayne, 'Rethinking the Privilege against Self-Incrimination' (2007) 7 Oxford Journal of Legal Studies 209. The case law on the scope of the privilege against self-incrimination is inconsistent. However, subject to certain exceptions, it applies to the use in criminal proceedings of material which has an existence dependent on the will of the suspect. See Saunders v United Kingdom (1997) 23 EHRR 313; Jalloh v Germany (2007) 44 EHRR 32; O'Halloran and Francis v United Kingdom (2008) 46 EHRR 21.
    • 54 Royal Commission on Criminal Justice, above n. 11 at 84.
    • 55 Ibid. at 98.
    • 56 M. Zander, Consultation on Proposals for Advance Disclosure of Defence Witness Lists and Unused Defence Expert Witness Reports, 2002, 2; P. Hungerford-Welch, 'Prosecution Interviews of Defence Witnesses' [2010] Crim LR 690.
    • 57 See Zander, above n. 56.
    • 58 J. Richardson, 'A “Just” Outcome: Losing Sight of the Purpose of Criminal Procedure' (2011) Journal of Commonwealth Criminal Law Inaugural Issue 105 at 117.
    • 59 For detailed discussion on the scope and rationale of the privilege against self-incrimination, see D. Dolinko, 'Is There a Rationale for the Privilege against Self-incrimination?' (1986) 33 UCLA Law Review 1063; Redmayne, above n. 49; A. L.-T. Choo, '“Give Us What You Have”-Information, Compulsion and the Privilege against Self-incrimination as a Human Right' in P. Roberts and J. Hunter, Criminal Evidence and Human Rights: Reimagining Common Law Procedural Traditions (Hart: Oxford, 2012) 239.
    • 66 Leng found that ambush defences were raised in 5 per cent of contested cases at the most: R. Leng, The Right to Silence in Police Interrogation: A Study of Some of the Issues Underlying the Debate, Royal Commission on Criminal Justice, Research Study No. 10 (HMSO: London, 1993). Zander and Henderson found a rate of 7 to 10 per cent in a sample of Crown Court cases, with two-fifths of these causing no problem for the prosecution: M. Zander and P. Henderson, Crown Court Study, Royal Commission on Criminal Justice, Research Study No. 19 (HMSO: London, 1993).
    • 67 See Redmayne, above n. 25 at 450.
    • 68 Ibid. at 451.
    • 69 Ibid.
    • 70 Ibid.
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