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whether or not it is intended to call those persons                    [PP86]
at the pre-trial examination or trial' (cl 43(1)(c)).
Concerning documents, the obligation is limited to 'a copy of any proposed
exhibit intended to be used by the prosecutor in the trial...' or an
opportunity to inspect same (cl 43(1)(f)), and would only extend to documents
within the prosecutor's control or information, and excludes those which could
not be the subject of a subpoena (cl 43(3)). The obligation does not therefore
extend to any other potentially relevant documents which may be held by the
prosecution (so-called 'unused evidence'), even those which may be exculpatory
(disclosure of which would, however, be required by the ethics of the Bar).
Aronson points out that

   English prosecutors have for some time been under a statutory
   obligation to disclose materials not disclosed at the paper committal,
   but of evidentiary value. Their rules as to such 'unused evidence'
   have been causing some problems, both as to confidentiality and as to
   sheer manageability, in the complex fraud cases' (Aronson (1992)
   p111).
   
The Rothwells Task Force had over two million documents under its control, of
which about 300,000 were estimated to have some conceivable relevance, but
only 30,000 were regarded as potential exhibits. In such cases a general
obligation of prosecution disclosure could be 'another vehicle for wasting
time and money' as the Serious Fraud Office has claimed (see Aronson (1992)
p111).

Aronson's proposed solution is that, in the event that the prosecution did not
voluntarily disclose other documents, it would be necessary for the defence to
obtain a disclosure order at a directions hearing. The recommended provisions
allowed disclosure to be required of 'any other document directed to be
included...' (cl 13(3)(g)). It would be necessary for the defence to satisfy
the Court that the disclosure of classes of documents that it sought had some
basis which justified the Court's exercise of its discretion.


Relevance of form of documents


A potential requirement of discovery of classes of 'unused evidence' (even if
it does require a directions hearing) provides another important function for
a document control database, because it may give the prosecution an immediate
means of establishing which documents it has in the classes for which
discovery is sought. Since cl 13(3)(g) would cover both documents and
statements, there seems to be no need for any further consideration of whether
the prosecution can be required to give discovery in computerised form, or can
insist on doing so. If there is disagreement between prosecution and defence
on either question, it can be resolved by a directions hearing.


Limits of discovery of computerised prosecution materials


One matter which does require discussion, however, is whether any requirement
on the prosecution to give discovery in computerised form could inadvertently
extend to include matters which the prosecution should not be required to
disclose. Litigation support systems will usually contain considerable
information which discloses how the prosecution views the statements,
transcript and documents which are only their 'raw materials'. The 'value
added' components of litigation support systems may include annotations to
transcript or statements, summaries of the contents of documents, cross
references between documents, or between documents and transcript or
statements, and even the headings under which documents have been classified.
A useful discussion of the conditions under which these types

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