A fraud occurred in respect of the repairing of ambulances in a garage operated by a company in which the defendant Dickson was the major shareholder and where the defendant Bryant worked. An employee of the company at the garage would make an estimate of the work which had to be done, and where that differed from the work specified in the note the sanction of a supervising mechanic named Campbell was required. He either consciously or unconsciously, facilitated the frauds which were perpetrated. The prosecution had taken a statement from Campbell but they did not furnish a copy of the statement to the defence and they did not call Campbell as a witness at the trial. On the appeal it was argued that: ‘. . . the prosecution, having taken a statement from Campbell and having decided not to call him as a witness, were under a duty to furnish the defence with a copy of the statement, in order to enable the defendant to decide whether they should call him.’
Held: The proposition that it is the duty of the prosecution to place before the court all the evidence known to him, whether or not it is probative of the guilt of the accused person, was erroneous. The principle of open justice did not extend that far. ‘A prosecutor is under no such duty. His duty is to prosecute, not to defend. If he happens to have information from a credible witness which is inconsistent with the guilt of the accused, or, although not inconsistent with his guilt, is helpful to the accused, the prosecutor should make such witness available to the defence.’
Lord Goddard: ‘It is said that it was the duty of the prosecution to have supplied the defence with a statement which Campbell had admittedly made to the prosecution. The prosecution, for reasons which one can well understand, did not call Campbell. Is there a duty in such circumstances on the prosecution to supply a copy of the statement which they have taken to the defence? In the opinion of the Court there is no such duty, nor has there ever been. In the first place, if they had supplied a copy of the statement of Campbell, that would not have enabled the defence to put the statement in. The statement which Campbell made could have become evidence only if he had been called as a witness. But it is said that it was the duty of the prosecution to put that statement at the disposal of the defence. In the opinion of the Court, the duty of the prosecution in such a case is to make available to the defence a witness whom the prosecution know can, if he is called, give material evidence. That they did in this case, because when a letter was sent by the defence to the Director of Public Prosecutions, the reply of the Director of Public Prosecutions showed quite clearly that the prosecution did not intend to call him, but he added: ‘There is no objection to your taking a statement from Campbell if you wish to do so’. That was said well before the trial. It was said after the close of the police court proceedings, when the defence knew that Campbell was not being called by the prosecution, and therefore could quite well themselves have gone to Campbell and taken a statement from him. Campbell was at the Court. Who brought him to the Court I do not know, nor is it material to inquire, but the defence could have called him if they had liked. No doubt Mr. Scott Henderson would not have been so unwise as to call him without having a statement from him, but if the defence did not choose to take a statement and find out what he was prepared to say, that is not a matter with which the prosecution are concerned. In the opinion of the Court it is quite wrong to say that it was the duty of the prosecution in these circumstances, having made Campbell available to the defence as a witness if they wished to call him, to go further and produce the statement which he had made.’
Judges:
Diplock LJ, Lord Goddard
Citations:
(1946) 31 Cr App R 146
Jurisdiction:
England and Wales
Cited by:
Cited – Regina v Brown (Winston) HL 20-Feb-1997
The victim had been stabbed outside a nightclub. Two witnesses identified the defendant. The defendants complained that evidence had not been disclosed to them.
Held: There is no duty at common law on the prosecution to warn the defence of . .
Overruled – Regina v Mills, Regina v Poole HL 24-Jul-1997
The prosecution have a duty to disclose to the defence the statement of an adverse witness and not just to provide the name and address, even though that person was not seen as credible witness by the prosecution. ‘the rule in Bryant and Dickson is . .
Considered – Regina v Lawson CACD 1-Jun-1989
The prosecution did not give the defence a copy of the statement of a witness as to material facts which supported the defence case because it considered that it might require to use the statement if the person who had made it were called as a . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice
Updated: 20 November 2022; Ref: scu.193796