Matthew Hickling’s criticism of the Criminal Procedure Rules does not stand up to scrutiny

I write as one who prosecutes daily in the magistrates’ court.

In characterising defendants as ‘the only non-volunteers in the [criminal] process’ (see [2008] Gazette, 19 June, 28), Matthew Hickling forgets – as happens too often – the victims of crime. Furthermore, his central point – that the Criminal Procedure Rules are ‘diluting the demands upon prosecutors to first prove their cases and sanctioning defendants for seeking the protections of legal privilege’ – simply does not stand up to scrutiny. The case he referred to, that of Kelly (where the High Court held that an order requiring the defence to name its witnesses was ‘futile’), expressly confirmed the legal privilege attached to such discussions between defendant and solicitor.

It is not, in my view, unreasonable to require the defendant to assist the court process. Nor is it unreasonable to provide the court with a range of sanctions which it can impose where appropriate. This is no more than the other side of the coin to credit for an early guilty plea.

As Mr Hickling will know, almost invariably the reason a defendant seeks to ‘put the Crown to proof’ is to see if the prosecution witnesses will attend trial. It is rare that the defence has anything ‘up its sleeve’ – increasingly so, given the views of the higher courts about ambush defences and the importance of treating the trial process seriously.

If there is to be some sort of sea-change in criminal justice, some might think it long overdue. To give an example, the requirement that the Crown should provide the statements and/or details of all witnesses spoken to, while the defendant can call on privilege to allow him to not even name the witnesses he intends to call, might be considered to favour the defendant very considerably.