Human Rights, Serious Crime and Criminal Procedure - College of ...

Why bother with Rights when Public Safety is at risk?generalised and stereotypical reasoning rather than particularisedevidence.7. The right to disclosure of documentsShould a defendant be able to find out what evidence and whatstatements the prosecution are relying on? In some legal systemsthis is a question that makes little sense, because there is afigure such as an examining judge who builds up a dossier onthe defendant which is open to inspection by defence lawyers aswell as prosecutors. In the English system it is a question withseveral ramifications. The basic principle of prosecution disclosurehas now been accepted in the Criminal Procedure andInvestigations Act 1996, but the reasoning behind this has neverbeen entirely clear. It seems that the European principle of"equality of arms" is broadly accepted—the notion that it is fairif the defence are able to have access to prosecution evidence, soas to compensate for the disparity in resources and to raise themto a roughly equal position. This stops short of accepting theargument that the police gather evidence as trustees, rather than"for the prosecution", so that it does not belong to the prosecutionin any way, but is rather a form of public property thatshould be open to the defence as well. So long as the "trusteeship"doctrine is not accepted, there remains the risk of repeatingthe notorious "miscarriage of justice" cases uncoveredaround 1990, many of which stemmed from the failure of thepolice or prosecution to disclose to the defence material thatwould assist them. 91 Thus the defendant's right to disclosure hasstrong links with the presumption of innocence, as well as withthe right of a person charged with a criminal offence to haveproper "facilities for the preparation of his defence." 92Whatever the basis for prosecution disclosure, claims areoften made that it should be subject to various limitations. TheEuropean Court of Human Rights regards it as essential to theright to a fair trial that "the prosecution authorities shoulddisclose to the defence all material evidence in their possessionfor or against the accused" 93 , but has recognised that:the entitlement to disclosure of all relevant evidence is not anabsolute right. In any criminal proceedings there may be competinginterests, such as national security or the need to protect witnesses atrisk of reprisals or keep secret police methods of investigating crime,which must be weighed against the rights of an accused. In somecases it may be necessary to withhold certain evidence from thedefence so as to preserve the fundamental rights of another individualor to safeguard an important public interest. However, only such32