Procedural Anomalies

Extract

For centuries, English criminal procedure regarded the “surprise witness” as a legitimate weapon, for the prosecution as well as the defence. In a case in 1823 Park J. complained that the defendant had seen the depositions in advance of trial. “The prosecutor or his solicitor might have access to them, but not the party accused. For what would be the consequence if the latter had access to them? Why, that he would know everything which was to be produced in evidence against him—an advantage which it was never intended should be extended towards him …” (J.F. Stephen, History of the Criminal Law of England (1883), vol. I, p. 228).