Is the 'golden rule' of full prosecution disclosure a modern 'mission impossible'?

Abstract

It is almost universally acknowledged that the prosecutor’s modern role with respect to the disclosure of relevant material in its possession must be that of the candid ‘minister of justice’ in line with the ‘golden rule’ of disclosure, which requires full disclosure of any relevant material. Accordingly, the real controversy in relation to disclosure concerns the precise boundaries and content of this duty. This article charts the issues that have arisen since the landmark case of R v Ward [1993] 1 WLR 619 raised serious issues of prosecutorial obligations for disclosure in England. In particular this article asks whether it is realistic to expect the police and/or the prosecuting lawyer to deal fairly and objectively with issues of disclosure. It is clear that the prosecution’s disclosure obligations must be framed within a formal disclosure regime. Despite the major problems of principle and practice that have arisen in England, it is, nevertheless, still possible to offer some suggestions about the framework of a formal system of disclosure that is both fair and workable. Considering the effective incorporation of the English system of disclosure into Australia law with R v Mallard (2005) 224 CLR 125, such a framework is appropriate for both England and Australia. Disclosure may be both difficult and expensive to achieve ‘but the costs of non-disclosure are now prohibitive.’