R v Mills

The prosecution must disclose a material witness statement that may assist the defence even where prosecuting counsel reasonably regards its maker as untruthful and anticipates a contrived explanation. Supplying only the witness’s name and address is insufficient. The former common law rule permitting that course should no longer be applied.

Non-disclosure of such a statement constitutes a material irregularity. An appeal will nevertheless be dismissed unless the irregularity makes the conviction unsafe. That question is determined using all the information available to the appellate court, including evidence received on appeal.

The appellants were convicted of murder after the victim suffered extensive injuries during violence in a room occupied by the appellants and two other witnesses. Their defences included self-defence and non-participation.

One witness, Juke, gave the police two materially different statements concerning the appellants’ conduct. The prosecution considered him unworthy of belief, declined to call him and withheld both statements, although the defence knew his identity and interviewed him. The Court of Appeal heard Juke’s evidence but dismissed the appeals on 16 April 1996.

The certified question was whether prosecuting counsel must provide the defence with a material statement where counsel reasonably expects its maker to depart from it or contrive an explanation, or whether disclosure of the witness’s name and address is sufficient.

1. Both appeals were dismissed unanimously. Lord Hutton delivered the leading speech. Lord Goff of Chieveley, Lord Slynn of Hadley, Lord Hope of Craighead and Lord Clyde agreed with his reasons.

2. Per Lord Hutton, the modern common law rules of disclosure applied when determining whether the non-disclosure constituted a material irregularity, although the trial had occurred before those rules were developed. A material irregularity capable of causing a miscarriage of justice is not materially distinct from a feature that renders a conviction unsafe. The temporal distinction adopted in R v Ward, 96 Cr App R 1, should not be followed.

3. The statements were highly material because they concerned the violence directly and bore upon self-defence and provocation. The rule in Rex v Bryant and Dickson, 31 Cr App R 146, under which disclosure of an incredible witness’s name and address could suffice, was inconsistent with the modern duty to disclose relevant material capable of assisting the defence. It should no longer be applied. The risk that disclosure might facilitate the tailoring of evidence did not outweigh the risk of injustice.

4. The judgments in R v Williams and R v Seymour were distinguishable. Their statements did not contain positive factual evidence undermining the prosecution or assisting the defence. The approach in R v Stinchcombe (1991) 68 CCC (3d) 1 was strong persuasive authority for disclosure.

5. The certified question was answered by holding that prosecuting counsel must provide copies of the material statements. The duty is not limited to furnishing the witness’s name and address. The failure to disclose Juke’s statements was therefore a material irregularity.

6. The convictions were nevertheless safe. The defence interview with Juke, together with the substance of his second statement put to Mills by the police, disclosed the general nature of his accounts and alerted the defence to the risks of calling him. Any prejudice was largely eliminated. Moreover, the Court of Appeal had heard Juke and was entitled to find that his evidence would not have assisted either appellant or raised a reasonable doubt before the jury.

1. House of Lords: Dismissed both appeals unanimously. It held that the statements should have been disclosed but that the convictions were not unsafe.

2. Court of Appeal (Criminal Division): On 16 April 1996 dismissed the appeals after hearing fresh evidence, including evidence from Juke. It held that non-disclosure was not an irregularity and, alternatively, that the convictions remained safe.

3. Crown Court at Bristol: On 26 January 1990, Swinton Thomas J and a jury convicted both appellants of murder and sentenced them to life imprisonment.