Disclosure

Question 1

Is the regime under the CPIA 1996 compulsory?

Answer 1

Yes, for cases sent to the Crown Court to be tried on indictment

Question 2

Who is an investigator for the purposes of the CPIA?

Answer 2

Any police officer involved in the conduct of a criminal investigation.

Question 3

What does the officer in charge of an investigation do?

Answer 3

They are responsible for directing a criminal investigation, including ensuring that proper procedures are in place for recording information, retaining records of information and other material in the investigation

Question 4

Who is at the centre of the disclosure process?

Answer 4

Disclosure Officer

Question 5

What is the duty to record and retain material?

Answer 5

Investigators must record, in a durable or retrievable form, all material which may be relevant to the investigation and which is not already recorded.

Obligation includes recording negative information.

Question 6

What is sensitive material?

Answer 6

Material which the investigator believes would give rise to a real risk of serious prejudice to an important public interest if it were to be disclosed.

Question 7

Where is the prosecution’s disclosure duty contained?

Answer 7

s.3 CPIA 1996

Question 8

What is the prosecution’s task in the disclosure process?

Answer 8

To review the schedule(s) provided by the disclosure officer and to assess the need to make disclosure of the underlying material to the defence.

Question 9

What is the statutory test for disclosure?

Answer 9

s.3 CPIA 1996

To disclose previously undisclosed material to the accused if it ‘might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused

THIS IS AN OBJECTIVE TEST

Question 10

If there is no disclosable material what must the accused receive?

Answer 10

A written statement to that effect.

Question 11

unusued prosecution material will fail to be disclosed if and only if it satisfies the s.3 test - true or false?

Answer 11

True

Question 12

What factors do the A-G’s Guidelines set out for a prosecutor to consider in deciding whether the s.3 test is met?

Answer 12

1. the use that might be made of the material in cross examination
2. its capacity to support submissions which could lead to the exclusion of evidence, a stay in proceedings, or a finding that a public authority has acted incompatibly with ECHR
3. its capacity to suggest an explanation/partial explanation of the accused’s actions
4. its capacity to have a bearing on the scientific or medical evidence in the case

Question 13

How must prosecution disclose material?

Answer 13

By providing a copy of the material or allowing inspection at a reasonable time and place (s.3(3) CPIA)

Question 14

When does the prosecutor’s duty of disclosure apply in a summary trial?

Answer 14

Whenever the accused pleads not guilty and the court proceeds to summary trial

Question 15

Are there any statutory time limits for disclosure of unused material in the Crown Court?

Answer 15

No

Question 16

s.7A CPIA 1996

Answer 16

Prosecutor remains under a continuing duty to review questions of disclosure (applying s.3 test)

Question 17

After the service of the defence statement what happens?

Answer 17

an investigator must look again at the material and draw the prosecutor’s attention to material which may satisfy the s.3 test.

Question 18

What is the duty of disclosure following conviction?

Answer 18

There is no general duty on the State to continue to investigate. The duties under the CPIA terminate.

Question 19

Once proceedings are complete the prosecution are still under a duty AT COMMON LAW TO…

Answer 19

consider disclosure of any material which might cast doubt on the safety of conviction and disclose such material unless there is a good reason not to do so

Question 20

s.5 CPIA

Answer 20

defence statement

Question 21

When does the accused serve a defence statement?

Answer 21

Once the case is sent to the Crown Court and the prosecution case is served, the accused must give a defence statement to the COURT AND the PROSECUTOR

Question 22

What is a defence statement?

Answer 22

Written statement setting out the basis on which the case will be defended

Question 23

What must the defence statement include (s.6A CPIA)?

Answer 23

1. nature of the accused’s defence (including partial defences) upon which the accused intends to rely
2. matters of fact on which the accused take issue with and why
3. particulars of the matters of fact on which the accused intends to rely for the purposes of defence
4. any points of law and the authorities relied upon

Question 24

Will the accused fail to comply with the CPIA if it raises no positive case and simply requires the Crown to prove its case?

Answer 24

NO - as long as the defence statement makes it clear that this is the accused’s position

Question 25

If the defence statement discloses an alibi then what must be included?

Answer 25

Particulars of the alibi, including names, addresses, and dares of birth. If the accused does not know these details, any information in the accused's possession that might assist in identifying or finding any such witnesses must be given.

Question 26

Are the defence under a duty to notify the court and the prosecutor (separately from defence statement) of any witnesses they intend to call?

Answer 26

Yes - defence must provide names, addresses, dates of birth (if this is not known then any identifying information)

Question 27

When must the defence statement be served by?

Answer 27

Defence statement must be served within 28 days of the prosecution's compliance (or purported compliance) with the duty of initial disclosure

Question 28

When must the defence apply for an extension to serve their statement by?

Answer 28

Application must be made before deadline expires.

Question 29

When will the court grant the defence an extension to serve their statement?

Answer 29

the application must not be granted unless the court is satisfied that it would not be reasonable to require the accused to give a defence statement within 28 days.

Question 30

Can the court comment on the failure of the defence to comply with the requirements of defence statement?

Answer 30

Yes

Question 31

What can the jury draw from defencies in the defence statement?

Answer 31

The court or jury may also draw such inferences as appear proper in deciding whether the accused is guilty of the offence concerned (s.11(5)(b))

Question 32

Can the accused be convicted solely on the basis of adverse inferences drawn by the jury about deficiencies in defence statement?

Answer 32

NO

Question 33

What is public interest immunity?

Answer 33

The court can order material to be withheld from disclosure if it is to protect the public interest in question but it must never imperil the overall fairness of the trial

Question 34

s.7A CPIA 1996

Answer 34

there is a duty on prosecutors to keep disclosure under review throughout the case and in particular when the defence statement is served

Question 35

If the prosecution have failed in their duty to disclose relevant material, what can happen?

Answer 35

1. defence could bring an application to stay the indictment 2. the conviction could be quashed 3. wasted costs for unnecessary hearings 4. refusal to extend custody time limits 5. potential exclusion of evidence

Question 36

If the defence want something disclosed what should they do?

Answer 36

Make a formal application for disclosure, write to the prosecution specifying the material which they seek.

Question 37

Is there a duty for third party disclosure under the CPIA?

Answer 37

No

Question 38

If material is requested from a third party, but access or disclosure is refused, what can the prosecution do?

Answer 38

In the Crown Court they can consider seeking a summons under s.2 Criminal Procedure (Attendance of Witnesses) Act 1965 or s.97 MCA 1980 (in Mags)

Question 39

What happens in a Public Interest Immunity Application?

Answer 39

The court will consider the material and may withhold disclosure of such material to the minimum extent necessary to protect the public interest, whilst always ensuring D has a fair trial

Question 40

What must investigators state when compiling the sensitive material schedule?

Answer 40

1. why the material is sensitive and to what degree 2. the consequences of disclosing the material to the defence 3. the relevance of the material to the issues in the case 4. the implications for continuing the prosecution if the material is ordered to be disclosed 5. whether it is possible to make disclosure without compromising its sensitivity