2.7 Disclosure - prosecution

Question 1

Why is unused material important?

Answer 1

Fairness demands that material in the hands of the prosecution that might help a defendant is served on that defendant.

R v H [2004] UKHL 3
“Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure. The golden rule is that full disclosure of such material should be made.”

Question 2

Where are the main disclosure provisions to be found?

Answer 2

• The Criminal Procedure and Investigations Act (CPIA) 1996, Part 1 (ss.1 to 21)
• The Code of Practice on Disclosure, issued under s.23 CPIA (the Disclosure Code of Practice)
• Criminal Procedure Rules (CrimPR) Part 15
• The Attorney General’s Guidelines on Disclosure – for Investigators, Prosecutors and Defence Practitioners (the A-G’s Guidelines)
• The Judicial Protocol on the Disclosure of Unused Material in Criminal Cases (the Judicial Disclosure Protocol). The disclosure provisions in this element relate to offences in relation to which criminal investigations commenced on or after 1 April 1997.

Question 3

What are the four stages of disclosure?

Answer 3

(1) the investigation stage- the duty to record and retain material during the investigation;
(2) the initial duty of disclosure on the prosecution;
(3) defence disclosure; and
(4) the continuing duty on the prosecution to keep disclosure under review.

Question 4

What three types of police officer must every investigation have?

Answer 4

Criminal Procedure and Investigations Act 1996 Code of Practice 2.1

1. an officer in charge of the investigation- who is responsible for directing the investigation and ensuring that proper procedures are in place for recording information and retaining records of information and other material;
2. an investigator- namely any police officer conducting the investigation; and
3. a disclosure officer- who is responsible for examining material retained and revealing material to the prosecutor and to the defence at the prosecutor’s request.

Question 5

What disclosure duty applies at the investigation stage?

Answer 5

The duty to retain and record relevant material.

Under the Disclosure Code of Practice, during a criminal investigation all material (including information) which may be relevant to the investigation must be recorded in a durable or retrievable form and retained.

Question 6

What does the duty to retain and record relevant material entail for the different officers in the investigation?

Answer 6

The Disclosure Code of Practice
[??] The officer in charge of the investigation is responsible for directing the investigation and ensuring that proper procedures are in place for recording information and retaining records of information and other material.
3.5 the investigator should pursue all reasonable lines of inquiry, whether these point towards or away from the suspect.
2.1 Disclosure officers- must inspect, view, listen to or search all relevant material that has been retained by the investigator and must provide a personal declaration that this has been done. Where there is doubt as to whether any material is disclosable, the disclosure officer must seek the advice and assistance of the prosecutor.

Question 7

How long must material be retained?

Answer 7

Chapter 5 Disclosure Code of Practice

1. Until a decision not to prosecute, or
2. Until the accused is acquitted, or
3. The prosecution decides not to continue with the case, or
4. Until the defendant is released from custody or 6 months from a non-custodial conviction, or
5. Until the appeal is concluded.

Where material comes to light after proceedings have concluded which throws doubt upon the safety of the conviction, the prosecutor must consider disclosure.

Question 8

In Crown Court cases, how does the Disclosure Officer notify the Prosecutor of unused material?

Answer 8

Disclosure Code of Practice 6.8-6.11
In Crown Court cases the disclosure officer prepares a schedule known as an MG6C which individually lists the items of unused material.

Question 9

In Magistrates Court cases, how does the Disclosure Officer notify the Prosecutor of unused material?

Answer 9

Disclosure Code of Practice
6.5
Where a Not Guilty plea is anticipated the unused material is listed on a streamlined disclosure certificate.

6.3
Where a Guilty plea is anticipated disclosure is not required.

Question 10

How does the Disclosure Officer deal with sensitive material?

Answer 10

Disclosure Code of Practice
6.15
Sensitive material, which the disclosure officer believes would give rise to a real risk of serious prejudice to an important public interest, is listed separately in a sensitive schedule or

6.16
in exceptional circumstances where its existence is so sensitive that it cannot be listed, it is revealed to the prosecutor separately. This may form the subject of a Public Interest Immunity Application at a later stage.

Question 11

What do Disclosure Officers do to confirm their compliance with the Disclosure Code of Practice?

Answer 11

Disclosure Code of Practice 9.1

Disclosure Officers must certify that to the best of their knowledge and belief they have complied with their duties under the Disclosure Code of Practice.

Question 12

What is the Prosecutor’s initial duty with regard to disclosure?

Answer 12

Section 3(1) Criminal Procedure and Investigations Act 1996

The prosecutor must—

(a) disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused , or
(b) give to the accused a written statement that there is no material of a description mentioned in paragraph (a).

Question 13

What counts as “prosecution material” for the purposes of disclosure?

Answer 13

Section 3(2) Criminal Procedure and Investigations Act 1996

(a) which is in the prosecutor’s possession, and came into his possession in connection with the case for the prosecution against the accused, or
(b) which, in pursuance of a code operative under Part II, he has inspected in connection with the case for the prosecution against the accused.

Question 14

When does the Prosecutor’s duty to disclose apply?

Answer 14

Section 7A Criminal Procedure and Investigations Act 1996

(1) This section applies at all times—
(a) after the prosecutor has complied with section 3 or purported to comply with it, and
(b) before the accused is acquitted or convicted or the prosecutor decides not to proceed with the case concerned.
(2) The prosecutor must keep under review the question…
(3) If at any time there is any such material as is mentioned in subsection (2) the prosecutor must disclose it to the accused as soon as is reasonably practicable…

Question 15

What further guidance is contained within the Attorney General’s Guidelines?

Answer 15

Attorney General’s Guidelines on Disclosure

6.
In deciding whether material satisfies the disclosure test, consideration should be given amongst other things to:
a. the use that might be made of it in cross-examination;
b. its capacity to support submissions that could lead to:
(i) the exclusion of evidence;
(ii) a stay of proceedings, where the material is required to allow a proper application to be made;
(iii) a court or tribunal finding that any public authority
had acted incompatibly with the accused’s rights
under the ECHR;
c. its capacity to suggest an explanation or partial explanation of the accused’s actions;
d. the capacity of the material to have a bearing on scientific or medical evidence in the case.

7.
it should also be borne in mind that while items of material viewed in isolation may not be reasonably considered to be capable of undermining the prosecution case or assisting the accused, several items together can have that effect.

Question 16

What material does not need to be disclosed?

Answer 16

Attorney General’s Guidelines on Disclosure 65
Neutral material or material damaging to the defendant need not be disclosed and there is no need to bring it to the attention of the court. Only in truly borderline cases should the prosecution seek a judicial ruling on whether material in its possession
should be disclosed.

Question 17

What principles of disclosure were laid down in R. v R [2015] EWCA Crim 1941?

Answer 17

1. The prosecution must adopt a considered and appropriately resourced approach to initial disclosure and explain what it was doing and what it would not be doing, ideally in the form of a “Disclosure Management Document”;
2. Dialogue and engagement between prosecution and defence to achieve the Overriding Objective;
3. The law is prescriptive of the result, not the method of disclosure – at the initial stage the prosecution should formulate a disclosure strategy, then canvass it with the court and the defence;
4. The disclosure process should be subject to robust case management by the judge;
5. Flexibility is critical - it is not a box-ticking exercise.

Question 18

In Magistrates Court cases, when must initial details of the prosecution’s case be provided?

Answer 18

CrimPR 8.2

(1) The prosecutor must serve initial details of the prosecution case on the court officer—
(a) as soon as practicable; and
(b) in any event, no later than the beginning of the day of the first hearing.
(2) Where a defendant requests those details, the prosecutor must serve them on the defendant—
(a) as soon as practicable; and
(b) in any event, no later than the beginning of the day of the first hearing.
(3) Where a defendant does not request those details, the prosecutor must make them available to the defendant at, or before, the beginning of the day of the first hearing.

Question 19

What must the initial details of case be sufficient to achieve?

Answer 19

The defendant and the court at this first hearing to take an informed view:

(1) on plea;
(2) on venue for trial (for either-way offences);
(3) for the purposes of case management;
(4) for the purposes of sentencing (including committal for sentence for either-way offences).

Question 20

When does the initial duty of disclosure arise?

Answer 20

Section 1 Criminal Procedure and Investigations Act 1996
• in the magistrates’ court only when a defendant pleads not guilty and the case is adjourned for summary trial; and

• in the Crown Court when a defendant is sent for trial or where a Voluntary Bill of Indictment has been preferred against a defendant.

Question 21

What are the statutory time limits for initial disclosure?

Answer 21

CPIA section 12 provides for statutory time limits for prosecution initial disclosure to be set by regulation but none has yet been made.

The default position under CPIA section 13 is that the prosecutor must act ‘as soon as is reasonably practicable’ once the initial duty of disclosure arises.

Question 22

What if the prosecutor wants to introduce evidence that it has not served on the defendant at initial disclosure?

Answer 22

CrimPR 8.4(2)
The court must not allow the prosecutor to introduce that information unless the court first allows the defendant sufficient time to consider it.

Question 23

What is the purpose of a Plea and Trial Preparation Hearing (PTPH)?

Answer 23

To ensure that all necessary steps have been taken in preparation for Crown Court trial and sufficient information has been provided for a trial date to be arrange

Question 24

When does a PTPH happen?

Answer 24

Usually 28 days after the case is sent to the Crown Court.

Question 25

What should happen at a PTPH?

Answer 25

1. The prosecution should serve sufficient evidence in advance of or at the PTPH to enable the court to case manage effectively without a further case management hearing, unless the case falls within certain exceptional categories such as murder or cases involving children where a further hearing will be envisaged.
2. If there is more prosecution evidence still to serve and/or if initial disclosure has not been complied with, dates will be given by when this must be done.