5) Disclosure & D statements Flashcards
When do the statutory and common law disclosure regimes apply?
Stat regime applies to:
- Compulsory for CC cases to be tried on indictment
- Duties begin with the arrival of trial at CC and end with conclusion
- Also applies to any summary trial.
Common law still applies to
- when deciding if disclosure is in public interest s.21
- Connection with bail app at an early stage
- Following the conclusion of proceedings
Who is the ‘investigator and what are their duties?
Who is the ‘disclosure officer’ and what are their duties?
- sort of 3 duties
Investigator
= any police officer involved in the conduct of a criminal investigation
Duties
Investigators must record all material that may be relevant to the investigation
- Does not include items which are purely ancillary.
Disclosure officer
= the police officer responsible for examining and revealing material to the prosecutor
Duties
- In CC. disclosure officer must prepare a schedule which lists relevant retained info which they believe will not form part of the P.’s case
- Sensitive material should be listed on a separate schedule (risk of prejudicing an important public interest)
- Schedules should be detailed enough for P. to determine if material should be disclosed
- Re. sensitive, detailed enough for P. to decide if it should be viewed.
- Must give P. a copy of any material falling within the categories in para 7.3 CIPA Code:
- Info which indicates an explanation for the offence
- Material relating to the reliability of a confession or a prosecution witness.
What is P’s statutory disclosure test?
When does this test apply?
To what extent does P need to consider possible defenses?
What is P’s disclosure test?
Objective test, disclosure required if:
a)‘might reasonably be considered capable of undermining the case for the prosecution against the accused, or
“undermine” = more likely to fail
b) of assisting the case for the accused’
When does this test apply?
- Throughout the case
- Does not apply post charge but before trial
To what extent does P need to consider possible defences?
- Material which might support a particular defence should be included
- Don’t have to consider all potential defences, base this on what you know
What is the common law regime regarding disclosure?
When does this apply?
Does P need to disclose info which may assist in prep for bail hearing?
What disclosure may be helpful prior to committal?
What is the common law regime regarding disclosure?
Common law and A-G guidelines require prosecutors & investigators to act in the interests of fairness and justice in relation to discloser prior to their statutory obligation arising.
When does this apply?
- Post charge, pre-trial
Does P need to disclose info which may assist in prep for bail hearing?
- Yes, eg:
- Convictions of P. witnesses
- Statements which have been withdrawn by witnesses
What disclosure may be helpful prior to commital?
- Previous conviction of victim when they might help D.’s bail app.
- Material to help an app. To stay proceedings as an abuse of process;
- Material to help the accused prepare for trial.
Does statutory disclosure regime apply to summary trials?
Yes, when D pleads NG
- Don’t forget there is a common law duty prior to this
Where P acting under the statutory disclosure regime, what must he do when he receives a schedule of unused material?
He must serve that schedule on the accused
1) What are the TL’s for P disclosure in CC and Mags?
2) What impact does having a prelim hearing have?
What are the TL’s for P disclosure in CC and Mags?
- No Statutory TL for disclosure in CC
- Must be made as soon as reasonable possible
- In Mags ASAP after NG plea
What impact does having a prelim hearing have?
- If there is a prelim hearing, court should impose a disclosure timetable
- This should be kept under review
Is P under a continuing duty to review discloser?
Yes, same test as s.3
How does service of D statement effect P’s disclosure?
After service of defence statement, there is, in effect, a repeat of the initial disclosure procedure
- Investigator must look at all retained material and draw P’s attention is ness.
- Disclosure officer must certify his compliance
Does P have a duty of disclosure post-conviction?
No statutory duty
Common law duty to disclose any material which may be relevant to sentence
Common law duty to disclose anything relevant to a identified ground of appeal.
What can D do if they want material disclosed?
- If material should have been disclosed, D can apply for an order for disclosure
- Needs to be for specific material, not apricate if it does not relate to an issue identified in defence statement.
- Usually dealt with by way of written application
When must D serve a D statement?
TL for service?
Can time be extended?
When must D serve a D statement?
- Only in CC once P’s case has been served
TL for service?
- In CC 28 days
- In Mags 14 days
Can time be extended?
- Only if not reasonable for D to serve within TL
Why would you choose to disclose D statement in Mags trial?
What should you do if you don’t make DS?
Why would you choose to disclose D statement in Mags trial?
- No obligation to disclose, but must if want to make an app. for specific disclosure under s.8
What should you do if you don’t make DS?
- Even though there is no requirement to serve DS, D must identify real issues in the case in accordance with The overriding objective CrPR 1.1
What should a defence statement contain?
1. The nature of the defence
- Including any particular defences which D intends to rely
2. Matters of fact …
- which D intends to take issue with and why; and
- which D intends to rely on for defence
3. PoL which D wishes to take, including authority
What impact does P’s case being unclear have on D statement?
Allowances given if it is not clear what P’s case is
