Disclosure: is the Crown complying with its duty?

There is an increasing trend within prosecution authorities to treat their duties of disclosure to the defence as somewhat flexible. While there has been a legislative focus upon the prompt delivery of defence case statements outlining the fundamentals of the defendant’s case—failure to do so resulting in the possibility that the Crown can cross-examine a defendant before the jury and suggest a recently concocted defence— the courts’ willingness to condemn the Crown for dilatory disclosure has often been less than enthusiastic, usually being limited to another weary set of directions that the Crown Prosecution Service (CPS) may…or may not react to. That is, until now. In R v Olivier (unreported, 27 September 2007) the Crown disclosed 8,000 pages of disclosable material a day or so before the first day of the trial. The defence had been properly demanding disclosure for nearly a year, but the material had not been forthcoming. The Court of Appeal concluded that the trial judge was entitled to refuse an adjournment and that