R v Brown (Winston)

At common law, the prosecution must disclose material which may undermine its case or assist the defence. This includes material affecting the credibility or reliability of a prosecution witness.

The duty does not extend to material which is relevant only because it may undermine the credibility of a defence witness. The prosecution must conduct its case fairly and openly, but it need not investigate or prepare the defence case. The defence is responsible for assessing its prospective witnesses. Material bearing upon credibility remains disclosable where credibility is so closely connected with the relevant facts that the two cannot reasonably be separated.

The appellant was convicted of wounding with intent. Identification was disputed, and he relied upon an alibi supported by several defence witnesses. The prosecution possessed information capable of damaging the credibility of two of those witnesses but did not disclose it before they testified.

The Court of Appeal dismissed his appeal in [1994] 1 WLR 1599. It certified whether the prosecution had a duty to disclose material relevant only to the credibility of defence witnesses. The House considered that question under the common law disclosure rules applicable before the relevant provisions of the Criminal Procedure and Investigations Act 1996 took effect.

1. Appeal dismissed unanimously. Lord Hope of Craighead delivered the leading speech. Lord Goff of Chieveley, Lord Slynn of Hadley, Lord Clyde and Lord Hutton agreed. The certified question was answered in the negative.

2. Per Lord Hope, the common law duty of disclosure derives from the defendant’s right to a fair trial and the principle of open justice. The prosecution must disclose material in its possession which may undermine its case or assist the defence. It must also disclose material casting doubt upon the credibility or reliability of a witness whom it chooses to call. The phrase “an issue in the case” receives a broad interpretation.

3. Material relevant only to the credibility of a defence witness is different. Much credibility material, including previous convictions, prejudice, or matters affecting capacity to observe and remember, is collateral to whether the defendant committed the offence. Fairness does not require the prosecution to help investigate the defence case or select defence witnesses. Those functions belong to the defendant’s legal representatives.

4. Per Lord Hope, credibility and the relevant facts may sometimes be inseparable. Contradictions within a witness’s account, or conflicts between witnesses, may make credibility part of assessing the substantive evidence. Material of that character remains subject to the ordinary duty where it may assist the defence or undermine the prosecution. The exclusion concerns material which does no more than undermine a defence witness’s credibility.

5. Advance disclosure of purely credibility-based material could weaken legitimate cross-examination and impede the jury’s assessment of truthfulness. It could also place an unreasonable burden upon prosecutors, particularly where defence witnesses are identified late. Although practical difficulty could not defeat a disclosure obligation required by fairness, fairness did not require such an obligation.

6. The existing disclosure rules, together with adequate time and facilities to prepare the defence as recognised by article 6.3(b) of the European Convention on Human Rights, sufficiently protected the right to a fair trial. The prosecution therefore had no duty to disclose the information bearing only upon the credibility of the appellant’s two witnesses.

1. House of Lords: The appeal was dismissed unanimously and the certified question was answered in the negative. The House affirmed the Court of Appeal’s conclusion that the common law imposed no duty to disclose material relevant only to the credibility of defence witnesses.

2. Court of Appeal (Criminal Division): The appeal against conviction was dismissed in [1994] 1 WLR 1599. The court certified a question of general public importance but refused leave to appeal.

3. Crown Court at Manchester: The appellant was convicted of wounding with intent contrary to section 18 of the Offences against the Person Act 1861 and sentenced to eight years’ imprisonment. The trial judge granted leave to appeal.