Pre-trial - Disclosure

Question 1

What does the prosecution categorise material into?

Answer 1

Used and unused

Question 2

What will be used material?

Answer 2

evidence relied on to prove case
- prosecution witness statements
- defendant’s recorded interview
- documentary exhibits

Question 3

What will be unused material?

Answer 3

not relied on in trial
- unused witness statements
- previous convictions of prosecution witnesses
- disciplinary findings against police

Question 4

What are the four stages of disclosure?

Answer 4

1. investigation
2. prosecutors initial duty of disclosure
3. defence disclosure
4. continuing duty on prosecution

Question 5

What is the role of the investigator in the investigation stage?

Answer 5

must follow all reasonable lines of enquiry
must be ‘fair and objective’

Question 6

What is the role of a disclosure officer at the investigation stage?

Answer 6

must inspect, view, listen to or search all relevant material
must provide a personal declaration that its been done

Question 7

When does the duty to retain material last until?

Answer 7

Defendant is convicted or acquitted

Question 8

What is the procedure for provision of unused material to the prosecutor?

Answer 8

• CC - MG6C schedule by disclosure officer
• MC - Streamlined disclosure certificate

Question 9

What is the prosecutors initial duty of disclosure?

Answer 9

must either
- disclose any prosecution material that might reasonably considered capable of undermining the case or assisting the accused’s case or
- give written statement of no material

Question 10

What is prosecution material?

Answer 10

• came into prosecution’s possession in connection with case
• material inspected in connection with case

Question 11

What are the AGs guidelines on the disclosure test?

Answer 11

• use in cross examination
• capacity for exclusion/stay of proceedings for abuse of process/ECHR rights submissions
• suggests explanation for accused’s actions
• impacts scientific/medical evidence

Question 12

What are the prosecution’s time limits for initial disclosure of used material?

Answer 12

No later than beginning of first hearing day

Question 13

What are the prosecution’s time limits for initial disclosure of unused material?

Answer 13

• MC: when D pleads not guilty, and case is adjourned for summary trial
• CC: when D sent for trial/Voluntary Bill of Indictment preferred

Question 14

What are the contents of a defence statement?

Answer 14

a) Nature of defence and any particular defences
b) Matters of fact taken issue with P
c) For each matter, why taken issue
d) Particulars of matters of fact for defence
e) Any point of law and authority

Question 15

What must be included in a defence statement where there is an alibi?

Answer 15

a) Name, address, DOB of witnesses
b) Information which may be of material assistance to identify/find the witness where details not known

Question 16

Where is a defence statement compulsory?

Answer 16

Crown court

Question 17

What is the time limit for serving a defence statement in the crown court?

Answer 17

within 28 days of P complying with duty of initial disclosure

Question 18

What is the time limit for serving a defence statement in the magistrates court?

Answer 18

within 10 business days of P complying with duty of initial disclosure

Question 19

What are the consequences of failure to serve a defene statement?

Answer 19

• Jury may draw adverse inferences
• Prosecution or Co defendant may comment on failure without leave of court (except on point of law)
• judge can warn D at PTPH/other pre trial that failure may result in adverse inferences
• Prosecutors can challenge DS and seek direction to require provision of adequate DS

Question 20

When can an adverse inference not be drawn for failure to serve a defence statement?

Answer 20

In magistrates court

Question 21

What is D prevented from if fails to serve a defence statement?

Answer 21

Cannot make application for specific disclosure

Question 22

What is the prosecutors continuing duty of disclosure?

Answer 22

Must review disclosure in light of defence issues

Question 23

What is a specific disclosure application?

Answer 23

Reasonable cause to believe there is prosecution material that should have been disclosed and hasn’t been

Question 24

What is the time limit for the prosecution responding to a specific disclosure application?

Answer 24

10 business days

Question 25

What is the consequence of failure to disclose by the prosecution?

Answer 25

defendant can bring application to stay indicment on abuse of process
can result in quashed conviction due to being unsafe
can result in exclusion of evidence due to unfairness
wasted costs order

Question 26

What happens where a third part holds relevant information?

Answer 26

• informed of investigation
• request for material to be retained
• must be some reason to believe

Question 27

What happens where a third party refuses to disclose relevant material?

Answer 27

Prosecution can seek summons

Question 28

What is a public interst immunity application?

Answer 28

where there is a real risk of seriosu prejudice to an important public interest

Question 29

What happens in a public interest immunity application?

Answer 29

court may withhold disclosure to the minimum extent necessary to protect public interest