Defence Participation through Pre-Trial Disclosure: Issues and Implications
| Author | Abenaa Owusu-Bempah |
| DOI | 10.1350/ijep.2013.17.2.425 |
| Published date | 01 January 2013 |
| Date | 01 January 2013 |
DEFENCE PARTICIPATION THROUGH PRE-TRIAL DISCLOSUREDefence participation
through pre-trial
disclosure: issues and
implications
By Abenaa Owusu-Bempah*
Faculty of Laws, University College London
Abstract 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 fair trial rights and has implications for the nature of
English criminal procedure. This article examines these issues and implica-
tions; it reveals that the defence disclosure regime has caused a shift in the
English criminal process further away from an adversarial style contest towards
a participatory model of procedure.
Keywords Defence disclosure; Case management; Criminal procedure
rior to the Criminal Procedure and Investigations Act 1996 (CPIA), the
defendant was under no general duty to disclose his case before trial.1
This position could be justified as a reflection of the principle that the
defendant need not respond until the prosecution have established a prima facie
doi:10.1350/ijep.2013.17.2.425
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF(2013) 17 E&P 183–201183
1The limited exceptions were disclosure of alibi defences and alibi witnesses in trials on
indictment under the Criminal Justice Act 1967, s. 11; disclosure of expert evidence in trials on
indictment under the Police and Criminal Evidence Act 1984, s. 81; and a more general
requirement to disclose a defence in some serious or complex cases of fraud under the Criminal
Justice Act 1987, s. 9(5).
P
*Email: a.owusu-bempah@ucl.ac.uk. The author is grateful to Professor Mike Redmayne, Professor
Ian Dennis and Dr Jonathan Rogers for their comments on previous drafts.
case in court.2Broad prosecution disclosure obligations are easy to justify: they
are a means of ensuring fairness and redressing an inequality of arms.3However,
the CPIA restricted prosecution disclosure obligations. When it was introduced,
some saw the Act as responding to complaints by the police that prosecution
disclosure had become too generous.4Under the common law, and subject to
public interest immunity, the defence had access to all possibly relevant prose-
cution material.5The CPIA limits disclosure to material which might reasonably
be capable of undermining the case for the prosecution or of assisting the case
for the accused.6Atthesametime,theCPIAimposednewandradicaldutieson
the defence. The most significant element of the legislation, for the purposes of
this article, is the requirement for the defence to provide a statement which sets
out the details of its case. Failure to comply with the legislation is penalised at
trial through provisions which permit adverse comment to be made and adverse
inferences to be drawn against the defendant. Such inferences may contribute to
a finding of guilt.
This article argues that the defence disclosure regime affects the nature of
criminal procedure by contributing to the emergence of a participatory model; it
also raises significant issues of principle. Although it has become increasingly
recognised that England and Wales do not subscribe to a purely adversarial model
of procedure,7the English system remains associated with adversarialism. The
adversarial trial takes the form of a contest between two sides. The prosecution
and defence control the case by defining the issues and gathering the evidence to
be presented. The prosecution must prove guilt and the system is structured to
184THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
DEFENCE PARTICIPATION THROUGH PRE-TRIAL DISCLOSURE
2R. Leng, ‘Losing Sight of the Defendant: the Government’s Proposals on Pre-trial Disclosure’ [1995]
Crim LR 704.
3It 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 vUnited Kingdom (1992) 15 EHRR 417; Secretary of State for the Home
Department vF[2009] UKHL 28, [2010] 2 AC 269. Furthermore, Art. 6(1) of theEuropean 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 vUnited
Kingdom (2000) 30 EHRR 1 at 60.
4R. Morgan, ‘The Process is the Rule and the Punishment is the Process’ (1996) 59 MLR 306.
5RvKeane [1994] 1 WLR 746.
6CPIA, s. 3, as amended by the Criminal JusticeAct 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’.
7See, 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 Justicein
21st Century Britain’ (2010) 35 North Carolina Journal of International Law and Commercial Regulation
319; J. McEwan, ‘From Adversarialism to Managerialism: Criminal Justice inTransition’ (2011) 31
Legal Studies 519.
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