In the latest instalment of a continuing series, we offer advice on the issues which face solicitor-advocates

Q How can I best achieve third party disclosure for a defendant in an indecent assault/rape case, where the complainant is known to social services?

A In many cases, the solicitor-advocate is aware through the case papers or unused material that a third party holds documentation that might potentially assist his client's case.

Often, such documentation is held by a third party who is reluctant to provide any disclosure on a written request - for example, the social services department that holds files on a complainant.

Social services in this example will usually be extremely reluctant to allow any form of disclosure to either the Crown or the defence.

It will be aware that the Crown is under a duty of disclosure to the defence to reveal any material likely to assist the defendant's case.

Hence, there is the potential of losing control of what documents are disclosed.

It will also not want the defence undertaking a fishing expedition in relation to the material it holds.

Therefore, social services departments often refuse to make any disclosure as a matter of policy without a witness summons being issued for their attendance at court.

In the circumstances where a refusal occurs, the solicitor-advocate can consider two routes to effecting disclosure.

The first route would be to seek from the Crown Prosecution Service (CPS) written confirmation that the third party does not hold any information that the defendant could use as part of his defence or in obtaining a reduction in sentence.

The Crown will then be under a duty to approach the third party to request information on the documentation held.

Where the CPS indicates that the third party does hold information that may assist, the CPS should be asked to request the files from the third party so that they may be reviewed.

If this request is refused by the third party, then the CPS should seek a witness summons.

The second route would be where the Crown is refusing to seek a witness summons.

This often occurs in borderline cases, where the third party confirms that in its view the documentation held is not of 'material relevance' to the criminal case.

The Crown is then often very concerned about the threat of such a third party seeking its costs from the Crown, where the witness summons does not then generate any relevant documentation.

Therefore, the Crown does not apply for a witness summons.

In this instance, the solicitor-advocate should force the issue by applying for his own witness summons under the Criminal Procedure (Attendance of Witnesses) Act 1965.

The procedure allows the solicitor-advocate (where he is also the solicitor in the matter) clearly to set out the reasons for seeking such a witness summons in a supporting affidavit.

If he is not the instructed solicitor, he should provide a detailed advice to assist in the preparation of such an affidavit.

The affidavit must be clear in its approach and clearly indicate the reasons for such a summons.

Where the judge is reluctant to grant the defence request, he will often then list the matter for mention.

At such a mention, the judge should be reminded of the prosecution's duty of disclosure.

In particular, reference should be made to Jespers v Belgium (1981) 27 DR 61.

In that case, the European Commission held that the 'equality of arms' principle imposes on prosecuting and investigating authorities an obligation to disclose any material in their possession, or to which they could gain access, which may assist the accused in exonerating himself or in obtaining a reduction in sentence.

This principle even extends to material that might undermine the credibility of a prosecution witness.

On such an application, the judge, having listened to the arguments, will either grant or refuse the request.

The judge may decide it is more appropriate for the Crown to seek the witness summons and order it to do so.

The Crown, free from the fear of a future costs order, will then oblige.

A hearing will then be listed, at which the process of review will occur.

Often third parties will have instructed counsel to review the material held and to then represent them at court.

It will be their duty to flag up the files and to review them with the judge in chambers.

Should the judge refuse the request, then an application can be made at any future hearing (particularly if any further information has come to light), as the duty of disclosure is an ongoing one for both the judge and the Crown.

This column was prepared by the Solicitors' Association of Higher Court Advocates (SAHCA).

For details of SAHCA or for a membership application form, contact Sandra Dawson, tel: 020 7837 0069.

E-mail your advocacy questions to Hilary Riddle, tel: 01233 820676, e-mail: hilary@hradmin.co.uk