Disclosure of Bench Memoranda

Attorney-General v Covey (CA TLR 2 March)

It is not the practice for civil courts to disclose bench memoranda prepared by judicial assistants. If there were any question of a litigant being prejudiced by a bench memorandum, then it would be disclosed by the members of the court on their initiative. As a consequence of the coming into force of the Human Rights Act 1998 and the need to comply with article 6.1, it was important to reconsider the position of the practice of the court as to bench memoranda. Article 6 did not change the position from that indicated in Parker v Law Society ( The Times 8 December 1998), where the court had adopted the standard which was at least as high as that required by article 6.1. It was also the standard adopted in great many jurisdictions, including the European Court of Human Rights. The memorandum invariably consisted of no more than an analysis of the factual material, which was already available to the litigant, reference to relevant legal authorities and principles, and comments as to the merits of the proceedings before the court.