Disclosure

Disclosure
SYLLABUS REFERENCE:
5. Disclosure of unused material and defence statements
 The investigator’s duty to retain unused material,
 The prosecutor’s duty of disclosure,
 The test for determining whether unused material should be disclosed by the
prosecution, including the requirement of continuous review,
 Time limits for prosecution disclosure,
 Applications to compel the prosecution to disclose,
 Defense duties of disclosure,
 The requirements relating to the contents of a defence statement,
 The consequences of defence failures in the disclosure process,
 Public interest immunity and public policy,
 Third party disclosure and court protocols on applying for third party disclosure;
obtaining a witness summons for a third party.

READING:
Required reading
 Blackstone’s Criminal Practice, Sections D9.1-9.77; D5.18-5.20



Introduction
 Quite technical
 Initial details of prosecution case;
 Prosecution disclosure to D of the evidence they intend to use against him;
 Criminal Procedure and Investigations Act 1996:
1. Prosecution disclosure to D of ‘unused material’ (which they do not
intend to use against him);
2. Disclosure by the defence to the prosecution;
3. Sanctions in the case of non-compliance;
4. Material held by third parties;
5. Procedure where ‘public interest immunity’ is raised

Types of Disclosure
 Important issue = the extent to which the prosecution and the defence may
disclose information pertaining to the case to each other
 Prosecution – There is a distinction between:
1. The disclosure by the P of its case – This is the information which they
will rely on in trial
2. The disclosure of other materials pertaining to the case, which it does not
intend to use – “unused material”



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,Material prosecution intend to use
 Where the offence is summary or triable either way, the prosecution must, if D
so requests, give ‘initial details’ of the prosecution case (prosecution witness
statements and/or a case summary) at or before the first hearing: CrimPR Pt 10.
o No power to dismiss prosecution case because of non-compliance: R (AP,
MD, JS) (2001) 165 JP 684.
 All summary trials: D should receive the prosecution witness statements before
the trial as a matter of good practice.
 Crown Court trial: prosecution witness statements are disclosed to D when the
case is sent to the Crown Court for trial.

Material prosecution do not intend to use: “unused material”
Criminal Procedure and Investigations Act 1996, s 3:
 The prosecution must disclose to D any ‘unused’ material which might
reasonably be considered capable of:
o undermining the case for the prosecution against the accused, or
o assisting the case for the accused.
 The prosecution are under a continuing duty to review their disclosure
obligations: CPIA 1996, s 7A.
 After the prosecution have complied with s 7A, D can apply to court to order
further disclosure: CPIA 1996, s 8.
 See also the Attorney-General’s Guidelines on Disclosure (2013).

CPIA s. 3: Undermining the prosecution case/assisting the defence case
 A-G’s Guidelines, para 6: this includes material that may:
o Be useful to D in cross-examination, or
o Support submissions that could lead to exclusion of evidence, or to a stay
of proceedings; or
o Suggest an explanation, or partial explanation, of the defendant’s actions;
o Have a bearing on scientific or medical evidence in the case.
 Material should also be disclosed if it might go to the credibility of a prosecution
witness. HM Advocate v Murtagh [2009] UKPC 36: relevant previous convictions
have to be disclosed.

Scheme of the Legislation
 Criminal Procedure and Investigations Act 1996 (CPIA 1996)
o Governs the disclosure of unused material by the P and the disclosure of
the D’s case by the defence
 CPIA was amended by Criminal Justice Act 2003 (CJA) and then amended by Criminal Justice and Immigration Act 2008
(CJIA) and supplemented by the Code of Practice issued under the CPIA 1996 and Crim PR, part 22
 Scheme:
o (a) Statutory duty for a police officer investigating and offence to record
and retain information and material gathered during the investigation
that are relevant
o (b) Material relevant to the investigation and does not form part of P’s
case should be provided by the police for review


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, o (c) P must apply the statutory test in CPIA s3 to material and must
disclose any material meeting that test
o (d) The D have a duty to inform the P of the case which they intend to
present at trial
o (e) The P is under a continuing duty to disclose material which falls into
the test for prosecution disclosure
o Following the service of the defence statement and any further disclosure
an accuse may make further application for disclosure

CPIA 1996: provides for applications to be made to the court in circumstances
where there is a dispute about whether the P should disclose certain unused
materials.
 There are sanctions for the D who fails to provide details of his case in a
timely basis and/ provides false or inconsistent statements

 Section 1 – CPIA 1996 lays down the categories of cases that the legislative
scheme applies to
o Compulsory for: cases sent to the Crown Court to be tried on indictment
o May apply (on a voluntary basis): any summary trial, including those in
the youth court
o Crime and Courts Act 2013 addition: Sched 17, para 37 – adds to S.
1(2)(g) of the CPIA 1996 to make provision for cases where there was a
lifting of suspension of proceedings relating to a deferred prosecution
agreement

Statutory Duties being with the arrival of the case in the CC and end with the
conclusion of trial whether by conviction, acquittal or discontinuation of
proceedings

ECHR Art 6: protects the right for the defendant to have adequate time and facilities
is

Commencement Dates
 Disclosure provisions of Part I CPIA 1996 apply to any alleged offence for which
began on or after 1 April 2007
 Most of the amendments contained in the CJA 2003 are now in force – see the details of the amendments below
 If an investigation began on or after 4 April 2005, then look at the CPIA 1996 as amended by Part V of the CJA 2003 and
the CJIA 2008

 So you must determine – WHEN DOES THE INVESITGATION BEGIN??!!
o Look at the definition of “criminal investigation”
 “An investigation conducted by police officers with a view of it
being ascertained whether a person should be charged with
an offence, or whether a person with an offence is guilty of it.”
 S. 1(4) of the Code of Practice para 2.1 (BCP D9.6)




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