Defence Disclosure in the Magistrates' Courts
| Author | J. Baldwin,F. Feeney |
| Published date | 01 September 1986 |
| DOI | http://doi.org/10.1111/j.1468-2230.1986.tb01705.x |
| Date | 01 September 1986 |
DEFENCE DISCLOSURE IN THE MAGISTRATES’
COURTS
WHILE
there has long been some limited advance disclosure in both
civil and criminal cases, the general principle historically was that
the evidence was produced at trial and not before.’ Advance
knowledge
of
the opposition case was either thought unnecessary
or was supplied in civil cases by the pleadings. During the past
century, however, many have come to believe that disclosure in
advance of trial can serve to reduce surprise, aid fairness, assist in
producing prompt dispositions and lower costs.* Although mutual
disclosure has become quite common in civil matters: it has come
more slowly to criminal cases. This is largely because of the
fundamental principle that the prosecution has the burden of
proving the case and that it must do
so
without compelling
testimony from the ac~used.~ This principle is generally thought to
render impossible in criminal cases the kind
of
full mutual disclosure
now required in civil cases.
Despite the lack of reciprocity, however, it is now widely
accepted that, if a defendant in a criminal trial is to receive a fair
hearing and adequately prepare his case, he is entitled to know in
advance the details of the allegations made against him and the
evidence to support them.5 The committal proceeding has long had
the function of providing such disclosure for cases tried on
indictment in the Crown Court and its predecessor courts: and
more recently rules promulgated under section
48
of the Criminal
Law Act 1977 direct the prosecution to provide advance disclosure
for cases triable either-way in the magistrates’ courts as well.’
The extent to which the defence should be required to provide
some reciprocal disclosure remains far from settled, and the subject
continues to provoke acrimonious debate on both sides of the
Atlantic. The principal objection to such a requirement can be
simply stated: it is that any requirement of disclosure by the
defence in advance
of
trial undermines the accused’s right of
See Sunderland, “Scope and Method
of
Discovery Before Trial,”
(1933) 42
Yale
L.J.
863;
and Holdsworth,
A
History
of
English Law
(7th ed.,
1956),
Vol.
1, p.458.
*
See,
e.g.
Goldstein, “The State and the Accused: Balance
of
Advantage in Criminal
Procedure”
(1960) 69
Yale
L.J.
1149;
Brennan, “The Criminal Prosecution: Sporting
Event
or
Quest for Truth?”
(1963)
Washington University Law Quarterly
279;
and
Moore, “Criminal Discovery”
(1968) 19
Hastings
L.J.
865.
Levine,
Discovery
(1982).
See,
e.g.
Williams,
Proof of
Guilt
(1%3),
Chap.
7;
and Eggleston,
Burden
of
Proof
(1983).
The Royal Commission
on
Criminal Procedure, for instance, reported that
“no
one
has represented
to
us
that disclosure by the prosecution, when practicable, is not
desirable”
(Report,
Cmnd.
8092,
1981,
para.
8.13).
Stephen,
A
History
of
the
Criminal Law in England
(1883), pp.216-228.
’
It was only in May
1985
that these rules were implemented. Under the rules, a
discretion is vested in the prosecuting authorities as
to
whether disclosure to the defence
is
to
be
in the form
of
a summary
or
by the service
of
written statements.
593
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