Disclosure, Immunity and Fair Trials

Abstract

In the years following the publication of the Report of the Royal Commission on Criminal Justice.' the government introduced a package of politically expedient crime control legislation that included the Criminal Procedure and Investigations Act 1996 (hereinafter CPIA). The statute created a new system of disclosure in criminal trials.! This new system was based upon the premise advanced by the Royal Commission that prosecution obligations in respect of disclosure of unused material had moved too far in favour of a defendant? and that, in respect of 'sensitive' information in particular, there was inadequate protection for informants or for undercover police officers." The CPIA has restricted the availability of information to the defence, placed new disclosure obligations on an accused prior to trial and has, through the Code laid pursuant to the primary legislation, expanded the scope of public interest immunity." It is argued in this article that the statutory obligations concerning the disclosure of unused material are inadequately defined, leaving too wide a prosecutorial discretion, and that the normative CPIA provisions concerning 'sensitive material' may lead to defendants contesting allegations on the basis of opaque incriminatory evidence and thus preclude a fair trial." Further, judicial control? is ineffective because decision-making is based upon information supplied and controlled by the party seeking immunity. There is no external accountability governing the possible suppression of evidence. In conclusion, it is suggested that since there is inevitably potential for an evidence deficit, that may distort the fact-finding process, there should be random review by a disclosure Commissioner to discourage investigators and prosecutors from non-compliance with the minimum criteria of the Act. The background to CPIA The original raison d' etre for establishing the Royal Commission on Criminal Justice had been concern over a number of high profile cases I Cm 2263 (1993) (hereafter RCCJ). 2 There is now a two-stage disclosure process with more detailed prosecution disclosure only available on service of a defence statement. 3 RCCJ, pp 93-95. 4 Ibid, paras 42-47. 5 Code of Practice, para 6. 6 Article 6 of the European Convention on Human Rights. Article 6(3)(a) gives the right to be informed of details of the accusation sufficient to make a relevant defence and Article 6(3)(d) the right to examine witnesses against one. 7 The court is to adjudicate on prosecution claims of public interest immunity. See CPIA, ss 3(6), 7(5), 8(5),9(8) and 15.