Written evidence to be reported to the House
Counter-Terrorism Bill
4:00 pm
Sir Ken Macdonald: Certainly, in other jurisdictions, they regard that material as absolutely indispensable. The Americans told me that they could not remember an organised crime prosecution in the United States that last proceeded without intercept material. The Australians told me that people who did not use this material were not “serious” about prosecuting organised crime.
On the other hand, I recognise that there are arguments on both sides. One is certainly the bureaucracy involved. It is essential that we find a system that does not place undue burden on the police or agencies and cause them to divert resources from the front line. Under our law, what is disclosable is any material that we intend to rely upon in evidence. In addition, we must disclose any material that we possess that, in our judgment—nobody else’s—undermines our case or assists the defence’s case.
In recent years, a practice has grown up of the prosecution simply opening the keys to the warehouse and handing over everything so that the defence could make the determination for itself. That practice was never in accordance with the law. When I became DPP, I was determined that we ought to return to the statutory basics in order to restrict unnecessary disclosure in criminal cases, which was being used to derail trials by swamping them with a mass of irrelevant materials. We are now much more focused in what we disclose.
As far as transcripts are concerned, we have to disclose those upon which we intend to rely. We also have to disclose those that seem to undermine our case or assist the defence’s case. Beyond that, we have no duty. Lord Bingham, the senior Law Lord in the case of H and C, has decried the practice of defence fishing expeditions, which derail the trial process in the vain hope of turning up something that might be useful. We are much more careful about disclosure now. The judiciary is much clearer as well about what should be disclosed. My view is that general principles of common law and statutory disclosure in English law can be relied upon to make the disclosure of transcripts in organised crime and terrorist cases both appropriate and manageable.