R v Brown

The appellant was convicted of wounding with intent under section 18 of the Offences against the Person Act 1861. The central legal issue was whether the common law duty of the prosecutor to disclose material to the defence extends to material that is relevant only to the credibility of defence witnesses. The House of Lords held that the common law duty to disclose does not extend so far. The court distinguished material which assists the defence case (and must be disclosed) from material which merely undermines the credibility of prospective defence witnesses (which the Crown is not obliged to disclose). Important statutory provisions and principles were considered, including section 11 of the Criminal Justice Act 1967 (alibi notice) and the Criminal Procedure and Investigations Act 1996 as marking later statutory change, but the decision rested on common law fairness, the public interest in effective prosecution and the adversarial division of investigative responsibilities between Crown and defence.

This was an appeal against conviction for wounding with intent. The appellant was convicted at Manchester Crown Court on 18 June 1993 and sentenced to eight years' imprisonment. The defence relied on an alibi and called witnesses; the Crown's case depended on two prosecution witnesses. At trial two defence witnesses gave evidence which, if undermined by material in the Crown's possession, might have caused the defence not to call them. The Court of Appeal dismissed an earlier appeal and certified a question of general importance: whether the Crown must disclose material that affects only the credibility of defence witnesses. Leave to appeal to the House of Lords was later granted.

Nature of the application: Appeal against conviction; the question certified was whether there is a legal duty on the prosecutor to disclose material relevant only to the credibility of defence witnesses.

Issues framed:

• Whether material relevant solely to the credibility of defence witnesses falls within the common law duty of prosecutorial disclosure;
• Whether fairness requires the Crown to disclose such material in light of the public interest in effective prosecution and the adversarial nature of criminal trials;
• How to reconcile the duty of disclosure with practical burdens on the prosecution and the role of the defence in investigating and preparing its case (including alibi procedure under section 11 Criminal Justice Act 1967).

Court’s reasoning and conclusion: The House of Lords reviewed the common law development of disclosure (including Dallison v Caffery, Reg v Ward and Reg v Keane) and noted recent statutory reform in the Criminal Procedure and Investigations Act 1996, which post-dated the trial. The court accepted that fairness requires disclosure of material in the Crown's possession that assists the defence or undermines the Crown's case, and that material affecting the credibility of prosecution witnesses must normally be disclosed. However, the court drew a principled distinction between such material and material that bears only on the credibility of prospective defence witnesses: disclosure of the latter is not required at common law. The court emphasised the adversarial division of investigative duties, the public interest in prosecution, the risk that advance disclosure of lines of challenge would blunt effective cross-examination, and practical burdens on the Crown. The appeal was dismissed.

Appeal dismissed. The House of Lords held that the common law duty of prosecutorial disclosure does not extend to material which is relevant only to the credibility of defence witnesses. The duty requires disclosure of material that assists the defence or undermines the prosecution case (including material affecting the credibility of prosecution witnesses), but not material that merely exposes weaknesses in prospective defence witnesses; preparation and investigation of the defence case are primarily the responsibility of the defence.

Convicted at Manchester Crown Court on 18 June 1993. Appeal to the Court of Appeal (Criminal Division) dismissed (judgment delivered 15 June 1994) — reported at [1994] 1 W.L.R. 1599 (certified question of general public importance). Leave to appeal to the House of Lords granted on 16 April 1996. Appeal heard and dismissed by the House of Lords on 24 July 1997 ([1997] UKHL 33).