Pre-trial criminal litigation IIII (disclosure)

Question 1

What is the significance of the prosecution’s unused material?

I.e. material it is not seeking to rely on

Answer 1

Can be important to a D in criminal trial

Question 2

What is the rule on full and proper disclosure?

R v H and C

Answer 2

Any material held by prosecution which weakens its case/strengthen’s D’s case but is not relied on should be disclosed to the defence

Question 3

What are the 4 stages of disclosure?

Answer 3

1. Investigation stage
2. Initial duty of disclosure on the prosecution
3. Defence disclosure
4. Continuing duty on prosecution to keep disclosure under review

Question 4

INVESTIGATION STAGE

To meet the duty of disclosure at the investigation stage, all material during investigation must be what? What material does this cover?

Answer 4

• Recorded in a durable or retrievable form and retained
• Material can include: crime reports, records from messages, witness statements, interview records etc.

Question 5

INVESTIGATION STAGE

What 3 officers does every investigation have and what is their role re disclosure?

Answer 5

1. Officer in charge of investigation - ensures proper procedures in place for recording/retaining information
2. Investigator (any police oficer conducting investigation) - follows all reasonable lines of enquiry
3. Disclosure officer - examines and reveals retained material to prosecutor and defence at prosecutor’s request

Question 6

INVESTIGATION STAGE

How long does the duty to retain material last once proceedings commence, if D convicted or if appeal against conviction in progress?

Consider progression of case

Answer 6

At least until a decision is taken whether to institute proceedings against a suspect…

• If proceedings commence = until accused is acquitted/convicted/prosecution discontinues
• If D convicted = until released from custody (or 6 months from date of conviction if non-custodial)
• If appeal against conviction in progress = until appeal concluded

Question 7

INVESTIGATION STAGE

If material comes to light after proceedings have concluded which throws doubt upon safety of conviction, what must prosecutor do?

Answer 7

Consider disclosure of material

Question 8

INVESTIGATION STAGE

What must Disclosure Officers certify to the best of their knowledge and belief?

Answer 8

That they have complied with their duties under the Disclosure Code of Practice i.e. ensure all relevant unused material is clearly listed and brought to attention of prosecutor

Question 9

PROSECUTION DUTY OF DISCLOSURE

What is the test for the prosecution’s duty of disclosure of prosecution material to the defence?

Under s3 CPIA

Answer 9

If prosecution material might help the defence it should be disclosed

I.e. capable of undermining the case for the prosecution against the accused / assisting the case for the accused

Question 10

PROSECUTION DUTY OF DISCLOSURE

In deciding whether material ‘might help the defence’, in what capacity should the prosecution consider the evidence being used?

Answer 10

• In cross-examination
• Supporting submissions that could lead to exclusion of evidence, stay of proceedings as abuse of process, finding that public authority acted incompatibly with ECHR rights
• Suggest (partial) explanation of accused’s actions
• Have a bearing on scientific/medical evidence

Question 11

PROSECUTION DUTY OF DISCLOSURE

In deciding whether to disclose, does the prosecution only look at each item in isolation?

Answer 11

No - several items together can have an effect even if in isolation they could not undermine prosecution/assist accused

Question 12

PROSECUTION DUTY OF DISCLOSURE

How is material that is supportive of the prosecution’s case/neutral in its effect but not relied on dealt with in disclosure duty?

Answer 12

Need not be disclosed as disclosure test is not satisfied

Question 13

PROSECUTION DUTY OF DISCLOSURE

What should be borne in mind with long and complex cases where large volumes of material are seized, including electronic data, in course of investigation?

Answer 13

• Prosecution must encourage dialogue with defence and engage promptly with them
• Prosecution should formulate disclosure strategy and use technology to conduct searches
• Disclosure process should be subject to robust case management from judge
• Flexibility critical; disclosure not a box-ticking exercise and aim should always be to make progress

Question 14

PROSECUTION DUTY OF DISCLOSURE

By when should prosecution serve initial details of prosecution case (used material)? Details should include sufficient information to allow D and court to take informed view of what?

Answer 14

• No later than beginning of day of first hearing (but really as soon as is reasonably practicable)
• Sufficient details to take informed view on plea, venue for trial, purposes of case management, and purposes of sentencing

Question 15

PROSECUTION DUTY OF DISCLOSURE

When does the statutory duty of disclosure of unused material arise in the magistrates’ and Crown?

Answer 15

Statutory duty…

• Magistrates’ = only when D pleads not guilty and case adjourned for summary trial
• Crown = when D sent for trial

Question 16

PROSECUTION DUTY OF DISCLOSURE

What is the common law duty of disclosure and how does it differ from statutory?

Answer 16

• Common law duty of disclosure = responsible prosecutor should advance disclosure of material that may assist defence with preparation of case/bail hearing
• Will arise even if statutory duty has not

Question 17

PROSECUTION DUTY OF DISCLOSURE

Summary: what is the difference between when the duty to disclose used and unused material arises??

Answer 17

• Used = prosecution serves initial details no later than beginning of day of first hearing
• Unused = in magistrates’ where D pleads not guilty and in Crown where D sent for trial (statutory) / where it might assist defence with early preparation of case/hearing (common law)

Question 18

PROSECUTION DUTY OF DISCLOSURE

Where a D pleads not guilty at a first hearing for a summary trial, what will the court do if the prosecution has further evidence to serve or has not yet fully complied with initial disclosure of unused material? What should prosecutors do in any event?

Answer 18

The court will set a date by which both must be completed - in any event prosecutors should serve initial disclosure in sufficient time to ensure trial date is effective

Question 19

PROSECUTION DUTY OF DISCLOSURE

Where a case is sent to Crown Court for trial and a PTPH is set to take place, what should prosecution do in advance re unused material? What if there is more prosecution evidence to serve/initial disclosure has not been complied with by the time of the PTPH?

Answer 19

• Should serve sufficient evidence in advance of/at PTPH to enable court to manage case effectively without need for further case management hearing
• If still to serve = dates set as to when this will happen

Question 20

PROSECUTION DUTY OF DISCLOSURE

Does initial duty of disclosure stop once complied with?

Answer 20

No - prosecution under continuing duty to review disclosure throughout procedings

Question 21

DEFENCE DISCLOSURE

What is a defence statement?

Answer 21

A written statement setting out nature of accused’s defence

Not to be confused with D’s proof of evidence to D’s own legal advisers (privileged document)

Question 22

DEFENCE DISCLOSURE

Is there a duty on the defence to serve material which might be helpful to the prosecution?

Answer 22

No!!!!

Question 23

DEFENCE DISCLOSURE

What is contained in the defence statement? What must it contain if it discloses an alibi?

Answer 23

• Sets out nature of accused’s defence
• Matters of fact defence takes issue with prosecution and why
• Matters of fact defence intends to rely on
• Any point of law defence wishes to take

If it discloses an alibi…

• Name, address, DOB of witness accused believes able to give evidence in support of alibi

Question 24

DEFENCE DISCLOSURE

Are defence statements compulsory in both the magistrates’ and Crown?

Answer 24

Crown yes - magistrates’ no!

Question 25

# **DEFENCE DISCLOSURE** When must defence serve their **defence statement** and on whom? | Mags + Crown different

Answer 25

* **Crown** - within 28 days of prosecution complying (or purporting to) with its initial duty of disclosure - serve on prosecution and court * **Magistrates'** (if chooses to do so) - within 10 business days of prosecution complying (or purporting to) with its initial duty of disclosure - on prosecution and court

Question 26

# **DEFENCE DISCLOSURE** If a defence statement is not served in the magistrates' or Crown, what will the defence be unable to make an application for?

Answer 26

Specific disclosure

Question 27

# **DEFENCE DISCLOSURE** In the Crown, when can the time limit to serve a defence statement be extended? | 2 conditions

Answer 27

1. Application **made within time limit** 2. It would **not be reasonably to require D give defence statement within 28 days**

Question 28

# **DEFENCE DISCLOSURE** If D intends to call any witnesses at trial, what must D do? By when must this be given? | In either court

Answer 28

Disclose a **notice (of intention to call defence witnesses)** identifying witness by name, address DOB and information to locate/identify witness Time limits same as defence statement (10 / 28 days) ## Footnote Alibi witnesses should be included in the defence statement and do not need to be repeated

Question 29

# **DEFENCE DISCLOSURE** What are the **consequences** where a D in the Crown court: * Fails to serve a defence statement (within required time limits) * Serves a defence statement which is deficient in content * Relies on defence at trial different to that in statement, or * Fails to give notice of defence witnesses ?

Answer 29

Jury can draw adverse inference or prosecution/co-D can comment on failure without leave of the court

Question 30

# **DEFENCE DISCLOSURE** Can adverse inference be drawn for defence disclosure failure in the magistrates'?

Answer 30

No as it is not compulsory to serve - but can draw if one is served and it is done out of time/defence later relied on is different to the statement

Question 31

What is the continuing duty of disclosure by the prosecution and how long does it last for?

Answer 31

* Prosecutor must keep under review any material that should be disclosed even **after** it has carried out review following service of defence statement * Duty lasts until D convicted, acquitted or prosecutor decides to not continue with case | Disclosed even if discovered late in proceedings

Question 32

When should prosecutors **revisit** disclosure?

Answer 32

If any **matters raised in accused's defence** suggest doing so - helps them carry out disclosure in informed way by understanding nature of defence

Question 33

What is a section 8 application and what must D and P have done before D can make an application?

Answer 33

* S8 application = application for specific disclosure * To make an application = D must have served defence statement and prosecutor must have either provided further disclosure in light of defence statement or notified no further disclosure | I.e. no service of defence statement = no s8 application

Question 34

What **reasonable cause** must defence **have** to make an application under s8?

Answer 34

Reasonable cause to believe there is prosecution material that **should have been disclosed** (following defence statement) but which has **not been**

Question 35

What should D include in their s8 application and by when should prosecution respond? | Describe what and explain why there is reasonable cause to believe what

Answer 35

* D should describe material that they want to be disclosed **and** explain why there is reasonable cause to believe a) prosecutor has material and b) it should be disclosed under CPIA * Prosecution has 10 business days to respond in writing to application

Question 36

Why must D set out issues **clearly in reference to defence statement** for s8 application?

Answer 36

Defence requests for disclosure of pieces of unused prosecution material which are **not referable to any issue in case identified in defence statement** should be **rejected**

Question 37

What does it mean that s8 (specific disclosure) applications should be seen as a **last resort**?

Answer 37

Discussion/cooperation between parties outside court is encouraged

Question 38

What serious consequences can occur should it become apparent that prosecution has failed its duty to disclose relevant material?

Answer 38

* Defence can bring **application to stay the indictment** on abuse of process grounds * Conviction may be **quashed on appeal** for being unsafe * **Delay and imposition of wasted costs** for unnecessary hearings/refusal to extend custody time limits * **Exclusion of evidence** due to unfairness ## Footnote Prior to making formal application - defence should write to the prosecution specifying the material which they seek and make a formal application for specific disclosure (cooperation encouraged particularly in large and complex cases)

Question 39

What does the duty on investigators/prosecutors to pursue all reasonable lines of enquiry mean?

Answer 39

Prosecutors should take **appropriate steps to obtain** any material held by third parties e.g. local authorities, health/educational authorities, financial institutions

Question 40

Do third parties have a duty of disclosure? Are speculative inquiries required?

Answer 40

* Third parties have no duty of disclosure * Must be some reason to believe 3rd party holds material; speculative inquiries not required

Question 41

As third parties have no duty of disclosure, what can prosecution do in magistrates' and Crown if access to disclosure is refused?

Answer 41

Seek summons

Question 42

Where the prosecution believes that their duty of disclosure would give rise to real risk of serious prejudice to important public interest, what must they do? What will the court do?

Answer 42

Apply to judge for non-disclosure in public interest - court may withhold disclosure to minimum extent necessary to protect public interest whilst always ensuring D has a fair trial ## Footnote Sensitive material must be recorded at the investigation stage in the Sensitive Material schedule in which investigators must state: * why the material is sensitive and to what degree * the consequences of disclosing the material to the defence (including the involvement of third parties in bringing the material to the attention of the prosecution) * the relevance of the material to the issues in the case * the implications for continuing the prosecution if the material is ordered to be disclosed * whether it is possible to make disclosure without compromising its sensitivity.