Thursday, July 28, 2011

Conservation of criticism

Last year, Carolyn Burnside attracted heavy criticism for inadequate pre-trial disclosure in a case where a complainant had previously made untrue statements in an earlier trial regarding another accused. Yesterday, the Court of Appeal released an addendum to its earlier decision after Ms Burnside contacted the court stating that she had not disclosed the material due to a belief that others had already done so. According to the addendum, another barrister made a note in the Crown case file, indicating that the material had been disclosed, though the barrister who previously held the brief now has no recollection of the matter. Ultimately, the court reiterates that the trial prosecutor, Ms Burnside, should have realised that the material had not been disclosed. The court concluded:
39 The Chief Crown Prosecutor advised the Court that the Crown accepted the proposition that in circumstances where, for any reason, a prosecutor returns a brief to prosecute in a trial and the brief is subsequently delivered to another member of counsel, the duty of disclosure arises for consideration and discharge again by the new prosecutor. It is the personal responsibility of that prosecutor to ensure that that duty has been discharged prior to the commencement of the trial and as and when any further occasion calling for its exercise arises. This Court endorses the Crown’s position as expressed by the Chief Crown Prosecutor.
40 Finally, the ground of appeal upon which the Appellant was successful was, understandably, added, by amendment, at a very late stage. The Senior Crown Prosecutor who conducted the appeal for the Crown was, clearly, insufficiently instructed as to the added ground. He ought to have sought an adjournment (to which in the circumstances, the Crown would have been entitled) to obtain full instructions as to the events which gave rise to the added ground of appeal.
41 In the circumstances it is appropriate that the criticism directed at the trial prosecutor in the Court’s judgment be tempered to take account of the matters to which reference has been made in this addendum.
This statement, which tempers the criticism of Burnside and shifts it to counsel on the appeal, should perhaps be termed 'conservation of criticism', in the theory that new facts can only shift the balance of criticism in a given situation, and neither increase or reduce the level of criticism. Then again, perhaps there are some principles of physics that simply can't be translated to a legal context.

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