Disclosure & Pre-Trial Matters Flashcards
(45 cards)
What is the difference between ‘used’ and ‘unused’ material in criminal proceedings?
- Used material: Relied upon at trial (e.g. witness statements, interviews, exhibits)
- Unused material: Not relied upon (e.g. other witness statements, prior convictions of witnesses, disciplinary records)
Why is unused material important to a defendant?
Because it may weaken the prosecution case or support the defence case. Fairness requires that such material is disclosed.
What Golden Rule about disclosure?
“Fairness ordinarily requires disclosure of any material which weakens the prosecution case or strengthens the defence. Full and proper disclosure is the golden rule.”
What are the four stages of disclosure?
- Duty to record and retain during investigation
- Prosecution’s initial duty of disclosure
- Defence disclosure
- Prosecution’s continuing duty to review disclosure
What is the investigator’s duty at the investigation stage?
To pursue all reasonable lines of enquiry, whether they support or undermine the case, and to retain all relevant material in durable or retrievable form.
What material must be retained during an investigation?
- Crime reports
- Witness statements and drafts
- 999 calls
- Exhibits
- Interview records
- Experts’ reports and communications
- First descriptions
- Material casting doubt on reliability of evidence/confessions
How long must material be retained during and after proceedings?
- Until D is acquitted, convicted, or the case ends
- If convicted: until released from custody, or 6 months after conviction
- If appealing: until appeal concludes
- If new material emerges post-trial: retain and consider disclosing
What is the test for prosecution disclosure?
To disclose any material which might reasonably be considered capable of:
(a) undermining the prosecution case, or
(b) assisting the defence case
What guidance does the A-G’s Guidelines give on applying the disclosure test?
Consider:
- Use in cross-examination
- Potential for exclusion of evidence
- Whether it could support ECHR arguments
- Whether it helps explain D’s actions or contradicts expert evidence
- Whether items collectively assist even if not individually
When does the prosecution’s initial duty to disclose unused material arise?
- Magistrates’ court: when D pleads not guilty and case is adjourned for trial
- Crown Court: when D is sent for trial or indicted
Even before this, there is a common law duty to disclose helpful material.
What are the time limits for prosecution disclosure?
No statutory limits exist - the duty arises as soon as reasonably practicable.
What are the expectations for initial disclosure in the Crown Court at the PTPH?
- Must serve sufficient material in advance
- Any incomplete disclosure must be dealt with at the PTPH by setting dates
- This enables case management to proceed without delay
What is a defence statement and is it compulsory?
A written statement setting out the nature of the accused’s defence.
- Compulsory in Crown Court
- Optional in magistrates’ court
What are the time limits for serving a defence statement?
- Crown Court: within 28 days of prosecution disclosure
- Magistrates’ court (if served): within 10 business days
What is the consequence of failing to serve a defence statement in the Crown Court?
- Adverse inferences may be drawn
- No application for specific disclosure can be made
- The prosecution cannot review disclosure in light of the defence
What is required when a defendant intends to call defence witnesses?
Notice must be served indicating:
- Name, address, DOB of each witness
- Within 28 days (Crown Court) or 10 business days (magistrates’ court) of prosecution disclosure
- Alibi witnesses must already be included in defence statement
What is the prosecution’s continuing duty of disclosure?
To keep disclosure under review, especially after receiving the defence statement.
Material must be disclosed even late in proceedings if it meets the test.
What is a ‘specific disclosure application’?
An application where the defence believes that material should have been disclosed following the defence statement, but was not.
What conditions must be met for a specific disclosure application to be made?
- A defence statement must have been served
- Prosecutor must have provided (or refused) further disclosure
- Application must describe the material sought and reasons
What are potential consequences of prosecution disclosure failures?
- Application to stay proceedings (abuse of process)
- Quashed convictions
- Exclusion of evidence
- Refusal to extend custody time limits
- Wasted costs orders
What is third party disclosure and when must it be pursued?
If third parties (e.g. local authorities, hospitals) hold material that may assist the defence or undermine the prosecution, prosecutors must try to obtain it.
If access is denied, they may seek a witness summons
What is a Public Interest Immunity (PII) application?
If the prosecution has material that meets the disclosure test but disclosure would seriously harm public interest, it must apply to the court for non-disclosure under PII.
What factors must be included in a sensitive material schedule for PII purposes?
- Why the material is sensitive and to what degree
- The risks of disclosure
- Its relevance to the case
- Whether disclosure is possible without compromising sensitivity
- Impact on prosecution if disclosure is ordered
What are ‘pre-trial matters’ in criminal litigation?
Issues that can be resolved before the trial starts, including:
- Selecting a trial date
- Making evidence or procedural applications
- Resolving legal arguments
They may arise at the first hearing, at a later hearing (e.g. PTPH), or on the day of trial.
