W6 Disclosure

Question 1

what is used material?

Answer 1

material the prosecution will rely upon at trial to prove its case against a defendant.

will include items such as:
- statements from prosecution witnesses
- D’s record of taped interview
- other documentary exhibits such as plans + diagrams that are relevant to proving the case

It is from these materials that the D will know what the case against them is.

Question 1

what is unused material?

Answer 1

material not being relied upon by prosecution.

will include items such as:
* statements from witnesses the prosecution are not relying upon
* pre-cons of prosecution witnesses
* disciplinary findings against police officers

Question 2

why is unused material important?

Answer 2

• it is extremely important to a D in trial.
• these witnesses might throw doubt on prosecution witnesses.
• if prosection, having reviewed all the material available, considers that there is a realistic prospect of conviction, and that its in public interest to prosecute the case, it would clearly be wrong to only reveal to D the material that supports case against them, and not the material that does not.
• Fairness - demands that the material the prosecution has that helps D needs to be served on them.
• D make choose to present that material in defence at trial.

Question 3

what does serving unused material on D allow?

Answer 3

Full and proper disclosure

any material (which weakens or strenghens its case) which is not being relied upon by the prosecution should be disclosed to the defence.

Full disclosure should be made - miscarriages of justice may occur if not. (principle of fairness)

Question 4

what are the 4 stages of disclosure?

Answer 4

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

Question 5

stage 1

what is the investigation stage?

Answer 5

duty to record + retain material during the investigation

• all material which may be relevant to the investigation must be recorded in a durable or retrievable form and retained.

Every investigation will have:
- an officer in charge of the investigation
- an investigator
- a disclosure officer

Question 6

stage 1

what is an officer in charge of the investigation?

Answer 6

responsible for directing the investigation and ensuring that proper procedures are in place for recording information and retaining records of info of other material.

Question 7

stage 1

what does an investigator do?

Answer 7

any police officer conducting the investigation

must follow all reasonable lines of enquiry, whether these point towards or away from the suspect.

Investigator must be ‘fair and objective’.

Question 8

stage 1

what is the role of a disclosure officer?

Answer 8

examines material reatained and revealing material to the prosecutor and to the defence at the prosecutors’s request

• must insepect, view, listen to or search all relevant material that has been retained by investigator.
• must provide a personal declaration that this has been done.
• where there is doubt as to whether any material is disclosable, D.O. must seek advice of the prosecutor.

Question 9

stage 1

Can the role of the investigator and the disclosure officer be carried out by the same person?

Answer 9

yes

however, in complex cases, these roles are usually individually assigned

Question 10

what are examples of relevant material?

that there is a duty to be retained

Answer 10

• crime reports
• records from tapes or telephone messages (such as 999 calls) which contain description of alleged offender
• witness statements (+ drafts if they’re different)
• exhibits
• interview records
• experts’ reports (+talk between police and experts)
• records of 1st descriptions of suspects and any material casting doubt on reliability of a witness

also, the duty to retain relevant material includes info provided by an accused person which indicates an explanation for the offence charged + any material which casts doubt on the reliability of a confession.

Question 11

how long does the duty to retain and record relevant material last?

Answer 11

at least until a decision is taken whether to insitute proceedings against suspect for a criminal offence.

once proceedings are commenced, all material must be retained until accused is acquitted or convicted or prosecutor decides not to continue with case.

Convicted
until the defendant is released from custody or discharged from hospital.
if no custodial sentence or hospital order given, 6 months from the date of conviction.

if there is an ongoing appeal against conviction - all material that may be relevant must be retained until conclusion of appeal.

Question 12

what if material comes to light after proceedings have concluded which throws doubt on safety of conviction?

Answer 12

prosecutor must consider disclosure of the material

Question 13

what is the procedure for unused material to be disclosed to the prosecutor?

Answer 13

Prosecutor is notified - as per disclosure codes of practice

**Crown Court **
- disclosure officer prepares a schedule known as an MG6C which individually lists the items of unused material.

Magistrates Court
- where a NGP is anticipated, the unused material is listed on a streamlined disclosure certificate.

Question 14

disclosure officer believes disclosure of material may give rise to:

What if there is sensitive material?

risk of serious prejudice to an important public intere

Answer 14

the material is listed in a separate schedule.

or 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 to a Public Interest Immunity application at a later stage.

Question 15

what are the requirements of disclosure officers?

Answer 15

• must certify that to best of their knowledge they have complied w their duties under Disclosure Code of Practice.
• includes to ensuring all relevant unused material is clearly listed + brought to attention of prosecutor.
  (meet full and proper disclosure test)
• D.O. should exercise judgement + be directed by prosecutor as to what is likely to be most relevant material for disclosure.

Question 16

CPIA 1996, s.3

what is the prosecutor’s initial duty of disclosure?

Answer 16

The prosecutor must:

1. disclose to the accused any prosecution material which has not previously been disclosed to the accused + which might reasonably be considered capable of underminig the case for the pros against accused or assisting case of accused; or
2. give to the accused a written statement that there is no material of a description mentioned in para 1.

either disclose any unused material that will help accused. if there is none, provide written statement to accused to say that.

Question 17

what is prosecution material?

Answer 17

material:

a. which is in the prosecutor’s possession, and came into his possession in connection w case for prosecution against accused, or

b. which, in pursuance of, he has inspected in connection w case for pros against accused.

Question 18

what is the test for disclosure?

Answer 18

• under s.3 CPIA
• objective test
• where there is in existence prosecution material which might help the defence then it should be disclosed.

Question 19

what is the purpose of A-G’s guidelines?

they add further detail to the disclosure test

Answer 19

Namely, in deciding whether or not material should be disclosed under s.3 CPIA, prosecutors should consider, amongst other things:

a. the use that might be made of the material in cross-examination;

b. its capacity to support submissions that could lead to:

i. the exclusion of evidence;
ii. a stay of proceedings as an abuse of process, 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.