All will be revealed

Who decides? In the long and troubled history of disclosure in criminal proceedings, that is one of the most important questions. For if it is left to the prosecution alone to decide what information undermines their case, there exists human frailty and human error and the possibility of an inequality of arms.

In the case of HM Advocate v Murtagh [2009] UKPC 35, the Privy Council has given prosecutors licence to withhold information about the previous convictions of prosecution witnesses which they deem to be immaterial.

In Scotland, as in England and Wales, any information held by the prosecution must be disclosed to the defence where it tends to materially undermine the case for the prosecution or assist the case for the accused. As Lord Bingham put it, in R v H [2004] UKHL 3, the golden rule is that there should be full disclosure, but if material does not weaken the prosecution case or strengthen that for the defendant, there is no requirement to disclose it. So, strictly applying that test, there is no obligation to disclose to the defence information which undermines the credibility of a defence witness (R v Brown (Winston) [1998] AC 367).

Though fair disclosure is essential to the right to a fair trial '“ there is no absolute right to absolute disclosure. In Jasper v United Kingdom [2000] 30 EHRR 441, the Strasbourg court held that in some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest.

Privacy vs right to a fair trial

In Murtagh, the Privy Council held that there is a balance to be struck between the article 6 right of the accused to a fair trial (deploying in cross-examination material which undermines the credibility of a witness against him) and the article 8 right of the prosecution witness to respect for private life (not having his previous convictions disclosed without justification).

Recognising that information about a person's criminal convictions engages article 8 privacy rights is an important new development. Lord Hope accepted that the fact that someone has been convicted of a crime is not of itself private information; the publication of which would be incompatible with article 8 because the criminal courts operate in public. However, centrally held historical records of such convictions '“ like the DNA database '“ are not generally available for public scrutiny. Accordingly, Lord Hope held that such information falls within the scope of article 8(1) and its release would be incompatible with that right '“ unless justified by article 8(2).

The justification for interference under article 8(2) is the protection of another person's absolute right to a fair trial under article 6(1) '“ which trumps the right to privacy. So, where a prosecution witness has previous convictions which materially undermine his credibility, then of course they should be disclosed and the interference with the witness's right to privacy will be justified.

But that will not be so if the previous convictions are not material. Lord Hope explained that materiality must depend on whether the information could have any possible bearing on a witness's credibility or character. In an assault case, a witness's convictions which show a propensity to violence will plainly be material. Likewise, convictions for dishonesty or attempting to pervert the course of justice will be relevant to credibility. However, in Lord Hope's opinion, offences committed many years ago or of a trivial nature will often fall outside the threshold. So too would cases of a 'sensitive' or 'embarrassing' nature. He gave the example of a victim of domestic violence who could be damaged by the disclosure of her sexual conduct as a prostitute long before she began her current relationship.

Who should make the decision?

Yet we return to the question: who decides whether to withhold such information? How well placed is the prosecution to make such decisions? In Lord Hope's example of the former prostitute, the disclosure officer or the bureaucratic prosecutor, sitting in his office, will rarely be privy to the secrets and half-truths of the domestic relationship.

One argument is that only the defence lawyer can decide what material he seeks to deploy in cross-examination '“ and he can only make that decision once he has all the information. Lord Hope countered by saying the defendants who are not represented are still entitled to the same disclosure (and in any event the defence lawyer would be duty bound not to keep embarrassing information from his client). So, Lord Hope held the initial decision falls to the prosecution alone.

Yet, there must be scope for an adversarial approach and the judge rather than the prosecutor should decide what is material. Lord Brown succinctly queried 'whether the best and simplest solution to the problem may not be as follows: disclose all previous convictions and outstanding charges, whether material or not, unless the Crown takes the view in respect of any particular such conviction or charge that it is both (a) embarrassing to the witness and (b) immaterial. In this, presumably very rare, event, the Crown should so indicate to the defence and place the facts ex parte before the court for it to make a final decision on materiality and, consequentially, disclosure. The advantages of such an approach are, first, that the court rather than the prosecution will be making the critical decision on materiality in respect of any withheld material (so that no suspicions can possibly arise) and, secondly, that the process of giving disclosure of this category of material can be made altogether easier.'

I couldn't agree more. Don't hide behind embarrassment. For if the desk-bound prosecutor or police officer alone decides what is material to the defence case, the risk is that he will not know or will be ill-equipped to guess or will be tempted to take an unfair advantage. History has shown that in the dark soil of human error or frailty the seeds of numerous miscarriages of justice will thrive.