what, if anything, the defence should be obliged to disclose at the
as
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preparatory hearing. It does not go as far, the Select Committee
recommended at paragraph 4.32(d) at pages 30- of its report which
reads :
"It
"It is insufficiently clear what the defence outline should contain." None of our witnesses envisaged it as more than an indication of the main lines of defence, with less detail than the prosecution's case statement. However, if it is to be useful, it must go further than simple admissions of facts and documents. If the proposal for a case outline is accepted, we consider that legislation should reflect the following practical requirements. First, considerable discretion should be left to the trial judge. Second, the outline should nevertheless be sufficiently clear and detailed to allow the prosecution to confine its notices to admit to facts and documents which are relevant to the case. Third, provision should be made for parallel or inconsistent lines of defence.t
The Select Committee's recommendation for defence disclosure
was thus heavily qualified, and I think reflects the very real
dilemma facing it of proposing reforms to the law without undue
sacrifice of principle.
That dilemma has now I think been resolved
by the concept of the defence response. By this means the
prosecution is able to tell which part of its case is in issue and
which part is not. It is thus enabled to concentrate on the real
issues which it must prove according to the normal standards in
criminal cases. But as to those parts of its case which are not
really in issue, the prosecution is able by means of the new
procedures to call on the defence to make formal admissions as to
facts and documents. The judge is to have power under clause 17 to
require the defence to make these admissions or to state the reasons
for its refusal. Under subfclause (3) it is sufficient, if the
document, fact or matter to which his refusal relates is central to
a fact on which the accused takes issue with the prosecution as
indicated in the defence response, to give this as a reason.
3