2. Equality of arms, disclosure and evidence

One of the components of the right to a fair trial and an element of criminal procedure is what is sometimes described as 'equality of arms' or 'fair play'. The idea is that adversarialism requires a certain equality between the accusation and the defence - in fact that fairness to the defendant requires fairness between the Crown and the defence. This equality is a normative rather than a de facto equality. In practice, bear in mind that the State often has a certain advantage over the defence in terms of resources and perhaps a head start on the investigation. At the same time, the standard of proof for a conviction means that there is an asymmetry with the defence. 

Crucial to ensuring equality is the existence of obligations of disclosure. This is an idea of fairly recent vintage, but it is now increasingly the case that the merits of 'trial by ambush' are seen as limited, especially in relation to the rights of the accused. It takes time to prepare a defence and to learn the case against one's client in Court surely would not allow for a maximization of defence efforts. Disclosure therefore allows the defendant to make a full defence, but it also reflects the fact that the police is not working for the Crown as much as for the public interest. The fruits of the investigation belong to the defence as much as the accusation, even though the Crown will have been made aware of them first. Moreover, disclosure is based on the ethical obligations of the Crown and notably the fact that the goal of the trial is not to secure a conviction but to lay before the jury all credible evidence.

The recognition of an obligation of disclosure was an innovation of the Courts themselves, Parliament having been loathe to introduce a general regime of disclosure. There was initially some resistance to it. It was argued that it would increase delays or allow witnesses to revise their testimony on the basis of their earlier statements to the police. None of these arguments have stood up to scrutiny.

The duty of the Crown to disclose material in its possession is broad. It includes any material that it intends to use at trial. However that obligation is still subject to discretion and there are some limitations, such as the need to protect police informers for example. Note that the Crown should err on the side of safety, however. It is generally considered that the identity of informers will have to be released. The Crown's discretion where the rights of the defence are affected merely relates to such things as timing and the form of the disclosure.

A key issue is whether defence should have an obligation of disclosure. The traditional answer is in the negative, the main reason being that defence should not have to make the Crown's burden easier. However even there, one sees a trend towards a potential limitation of that practice. For example, the defence has to give notice of the fact that it intends to introduce certain defences.


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