Disclosure of unused material and defence statements

Question 1

When do disclosure obligations apply to the prosecution?

Answer 1

When an issue is sent for trial on indictment.

When summary trial progresses following a guilty plea

Question 2

What principals underpin disclosure schemes and duties?

Answer 2

Fairness

Broadly that the prosecution should disclose any material which weakens its case or strengthens the defence case if not relied upon by P.

Question 3

What is the obligation the disclosure code puts on investigators?

Answer 3

To record all material which may be relevant to the investigation

This is a wide definition. The only things not caught are those which are incapable of having an impact on the case

Question 4

What must the disclosure officer produce for the prosecutor?

Answer 4

A schedule of material of all retained material which the officer has but believes will not form part of the prosecution case

Question 5

What should the disclosure officer do with sensitive information?

Answer 5

Should be listed on a separate schedule

This is information that could prejudice a an important public interest if disclosed

Question 6

What is the prosecutor’s Disclosure responsibility?

Answer 6

To review schedule and apply statutory test under s.3 CPIA

This is a continuing duty and disclosure should be kept under review

Question 7

What is the test under s.3

Answer 7

Any material which might reasonably be considered capable of

Undermining the prosecution case

or

assisting the defence

must be disclosed.

This is an objective test

Question 8

What is pre-charge engagement?

Answer 8

A voluntary process by which counsel for the defence and the accused, and the prosecution can engage with the investigators to help narrow lines of enquiry and help to facilitate effective disclosure.

It is not obligatory and is entirely discretionary

It can happen any time between the first PACE interview and charge

Question 9

What is the prosecutions disclosure duty after charge but before statutory disclosure?

Answer 9

An effective prosecution will disclose information with the initial details of the case which will help the defence prepare a case and with bail applications

Question 10

Must the prosecution disclose material which is neutral or which weakens the defence case?

Answer 10

No - no such obligation.

Does not fit under s.3

Question 11

What are disclosure management documents?

Answer 11

Prepped by prosecutor and detail how the disclosure process has been managed.

Must be served on defence and court 7 days before PTPH in crown court.

Question 12

How can disclosure be affected?

Answer 12

By P providing a copy or allowing inspection at a reasonable time and place

Question 13

Is there a public interest exemption to s.3 disclosure?

Answer 13

Yes - but it is on the decision of the court, on the application of the prosecutor

Question 14

What must be served by the prosecutor on the defence alongside the material disclosed under s.3?

Answer 14

The investigator’s schedule of unused material

Question 15

What is the time-limit for disclosure in the crown court?

Answer 15

No Strict time limit.

It should be done as soon as reasonably practicable

This is usually as soon as possible after the indictment is laid down or after a guilty plea is entered

Question 16

What is the continuing duty to review?

Answer 16

P remains under a continuing duty to review disclosure, and must continue to apply the s.3 test.

If at any time before trial ends (by acquittal or conviction) the situation changes as to a piece of evidence, it should be disclosed as soon as reasonably practicable.

P must also continually review any public interest exceptions to see if it is still in the public interest not to disclose

Question 17

What should happen after the service of the defence statement?

Answer 17

Another review of the undisclosed evidence, to see if any now needs to be disclosed after applying the s.3 test

Question 18

Does the duty continue after conviction but before sentence?

Answer 18

No - statutory duty ends on conviction.

But common law duty to disclose anything which may be relevant to sentence

Question 19

What is P’s duty if a conviction is under appeal?

Answer 19

A duty to disclose anything whcih may be relevant to a ground of appeal.

Also continuing duty to disclose any information which might reasonably be considered capable of casting doubt on the safety of the conviction.

Question 20

What rights do the Defence have under the statutory disclosure scheme?

Answer 20

Right to apply to the court for an order for disclosure if they believe that some material should have been disclosed under the statutory test.

This application can apply to material actually held by the prosecutor, and material the prosecutor has a right to hold

Question 21

When should a defence statement be served in the crown court?

Answer 21

After the prosecution case is served.

Question 22

What should a defence statement contain?

Answer 22

The nature of the defence, including any specific defences intended to be relied upon

Matters of fact which defence takes issue with

Matters of fact on which D intends to rely

Points of law D wishes to take and any authorities relied upon

Question 23

How much detail should the defence statement give?

Answer 23

It should provide detail if a positive defence is being run - a bare denial is insufficient.

But if the position of D is that the case must be proven, this is sufficient

Question 24

What do Bar Standards Board guidance require barristers obtain before drafting a defence statement?

Answer 24

Instructions.

Should be a signed proof of evidence or note of instruction from conference

Question 25

Does an alibi need to be disclosed in a defence statement

Answer 25

Yes - should give details and should give information about relevant alibi witnesses as well. This must be all witnesses who may be able to assist. It does not necessary for the witness be willing to give evidence or not

Question 26

Should the details of witnesses (other than alibi witnesses) be included on the defence statement?

Answer 26

No But, there is a separate duty to disclose this information to the court and to the prosecution. Should include names, addresses and date of birth if known

Question 27

When should the notice of intention to call witnesses be given?

Answer 27

They must be given within: 14 days - summary 28 days - crown of when the prosecutor complies with their duty of disclosure.

Question 28

Does a defence statement have to be provided in a summary trial?

Answer 28

No It is discretionary. D may provide one.

Question 29

Can an order for specific disclosure be given in the absence of a defence statement?

Answer 29

No

Question 30

Can the court extend the time-limit for the serving of the defence statement?

Answer 30

Yes - but the application must be made before the time-limit expires. There can be repeated applications.

Question 31

What is the sanction for a failure to provide an adequate defence statement?

Answer 31

The court can comment on the failure in question Prosecution and co-accused can also comment, but may need the leave of the court (where its a failure to mention a point of law or authority to be relied upon, failure to give notice or adequately identify a witness or failure to give notice in time).

Question 32

Can the tribunal of fact draw inferences from inadequacies of a defence statement?

Answer 32

Yes - but they cannot form the basis of a conviction.

Question 33

When can material be withheld under public interest immunity?

Answer 33

Where the materials disclosure could risk prejudice to an important public interest. It can only be withheld to the minimum extent necessary to protect public interests. Prosecutors should consider harm to public interests through direct harm and through indirect harm through incremental or cumulative harm

Question 34

What obligations are there for investigators in terms of investigating?

Answer 34

They must follow all reasonable lines of inquiry, whether they point towards or away from the suspect. The failure to do so does not defeat the obligation to disclose information.

Question 35

What should an investigator do where third parties are discovered to hold material which may be relevant?

Answer 35

Should inform the third party of the investigation and be invited to retain the material in case it is requested for disclosure. No need to make speculative inquiries.

Question 36

Can the court order a stay to pursue third party disclosure

Answer 36

Only if it goes to the heart of a key issue in the trial and the prosecutor had failed to act in line with guidelines.

Question 37

What is the procedure for securing disclosure of third party material?

Answer 37

A witness summons is issued for the production of documents