Concern over the issue of disclosure in criminal trials is now so great that binding new guidelines for prosecutors are to be published before Christmas.
Government departments, the police and the legal profession will be pressed to respond promptly to the consultation process because the Attorney- General, Lord Williams of Mostyn, wants the finalised guidelines in operation within the first quarter of next year. "We are trying to move as quickly as we can on this," his spokesman said.
Questionnaires by the Law Society and the British Academy of Forensic Sciences have already produced about 200 examples of non- disclosure, with barristers and solicitors warning that there could be serious miscarriages of justice. They listed cases where statements of witnesses who were helpful to the defence were not disclosed and where forensic or medical reports supporting the accused's versions of events were kept from the defence.
Non-disclosures have been at the heart of a series of miscarriages of justice dating back to the Seventies. The police did not tell the defence that Gerry Conlon, one of the Guildford Four, had an alibi in London for the night of the pub bombings; or that Stefan Kiszko was physically unable to commit the sex crime for which he was convicted; or that a witness in the case of the Taylor sisters, convicted of the murder of a rival lover, had told police that one of the two women seen near the place of the crime was black. Both sisters are white. The Birmingham six pub bombing case in 1991 was another high-profile case of miscarriage of justice.
In the Judith Ward case in 1992, the Court of Appeal decided enough was enough. It overturned her conviction for the M62 coach bombing, warning "we will not allow trial by ambush", and ruled the prosecution had to disclose all case material to the defence.
However, a backlash from police and prosecutors that they were having to spend vast amounts of time and money supplying the defence with material, much of it irrelevant, prompted the last government to clamp down on disclosure.
The Criminal Procedure and Investigations Act (CPIA) 1996, which came into force on 1 April 1997, created two tiers of disclosure, both of which are dependent on the prosecution deciding what unused material should be disclosed.
On primary disclosure, the police disclosure officer is required to list unused, non-sensitive material, and anything that might undermine the prosecution's case should be disclosed to the defence.
The defence, if it wants further disclosure, must first supply a defence statement. The prosecuting authority should then make secondary disclosure of any unused material that advances the defence case. However, examples of non-disclosure have brought criticism from trial judges. A rape trial in Nottingham Crown Court was stopped by the judge and the teenage defendant acquitted when the defence discovered that a crucial video tape taken from a CCTV camera in a nightclub foyer, which proved the defendant's innocence, had not been disclosed - a situation described as "lamentable" by the judge.
Disclosure was among the "unfinished business" outlined in Lord Williams's Tom Sergant memorial lecture in London last week when he canvassed the idea of new prosecution rights of appeal.
The Attorney-General maintained the problems with disclosure arose from a failure to implement the CPIA effectively, not from the Act itself. The Home Office was commissioning the search into how the disclosure regime was operating.
However, Roger Ede, secretary of the Law Society's criminal Law Committee, told The Independent that the Government needed to do more than issue guidelines and commission research which would not be completed until 2001. "By then, over a quarter of a million people will have been prosecuted and convicted under these provisions, …