05 Disclosure of unused materials and defence statements Flashcards
TRUE OR FALSE: Disclosure of unused materials and defence statements is compulsory in cases sent to the Crown Court to be tried on Indictment?
TRUE
TRUE OR FALSE: Disclosure of unused materials and defence statements may also apply in summary trials including those in the youth court?
TRUE
What is the duty to record and retain material?
To whom is this duty imposed?
Investigators must record all material which may be relevant to the investigation
TRUE OR FALSE: Investigators’ duty to record material includes negative information?
What is meant by ‘negative information’
TRUE
negative information: eg. “they saw nothing”
TRUE OR FALSE: duty to record material does not include material which may be relevant only material which is?
FALSE.
Investigators also responsible for obtaining any information which may be relevant
Where must retained material be put which may be relevant but not believed to form part of the prosecution case?
must be put in a schedule
In which cases does an obligation to prepare a schedule arise for Magistrates’ and Crown Courts?
Magistrates’ Court: where accused is likely to plead Not Guilty
Crown Court: arises in all crown court cases
Who prepares a schedule?
disclosure officer
Which form is a schedule prepared?
MG6C
What happens In Magistrates’ Court where an accused is likely to plead Not Guilty ?
What is the name for this in Magistrates’ Court? / What is prepared when this is the case?
An obligation to prepare a schedule arises
A streamlined disclosure certificate
When can the Defence apply to the court for an order for disclosure?
Defence can apply to the court for an order for disclosure once the prosecution have complied with its duty of disclosure and the defence statement has been served
When can the Defence make an application under s.8 CIPA 1996?
What must the Defence do first?
if they have reasonable cause to believe that there is prosecution material which is properly disclosable but has not been disclosed
Defence must first serve a defence statement, not before
When does Prosecution’s duty of disclosure cease to exist in the Magistrates’ Court??
If Defendant pleads Guilt
TRUE OR FALSE: In order to get disclosure material from a third party, there is a requirement to apply to the court for an order before approaching the third party?
False. No such requirement
When does the prosecution’s disclosure duty finish?
Terminate with conviction, acquittal or discontinuation of proceedings
TRUE OR FALSE: Prosecution has a common law duty to continue to review unused material throughout
TRUE
When does the Prosecution’s continuing duty of disclosure apply?
Once the prosecutor has completed initial disclosure
TRUE OR FALSE: Prosecutor’s duty of continuing review may be triggered during the course of a trial?
TRUE
What should one do if disclosure of unused material will likely prejudice an important public interest?
make a public interest immunity application to the court
When should a prosecutor make a public interest immunity application to the court?
When the unused materials meet the disclosure test but may also cause prejudice to an important public interest
TRUE OR FALSE: Defence must serve a defence statement in the Magistrates’ court?
False, no obligation to serve a defence statement in the Magistrates’ court
Where the defence decide to serve a defence statement in the Magistrates’ court, when must they do this?
within 14 days
TRUE OR FALSE: No obligation for Defence to serve a defence statement in the Crown Court?
False. Must be served within 28 days
When must a defence statement be served in the Crown Court?
within 28 days
TRUE OR FALSE: Disclosure regime is compulsory in relation to cases heard before the adult Magistrates’ court?
Why?
False. The regime may apply but is not compulsory as there is no obligation on the defence to provide a defence
What details should be included in a defence statement if an alibi witness is mentioned?
Name, Address, DOB of the alibi witness
TRUE OR FALSE: Defence must include the alibi witness’ previous conviction sin the defence statement?
False, defence need not give this information
TRUE OR FALSE: Disclosure officer must be independent of the investigation?
TRUE
TRUE OR FALSE: Disclosure officer must be a qualified lawyer
FALSE. no such requirement
TRUE OR FALSE: Officer in charge of the investigation must be a police officer of at least 5 post-qualification experience?
FALSE. no such requirement
TRUE OR FALSE: Defence statement is to include any evidence in the defence’s knowledge which undermine the defence’s case?
FALSE. no such requirement
TRUE OR FALSE: Disclosure for unused material is to be made as soon as practically possible?
TRUE
What must be done in terms of disclosure for large and complex cases in the Crown court?
approach to disclosure set out in a Disclosure Management Document
TRUE OR FALSE: Prosecution and Defence may review unused material to discuss and agree on disclosure?
Why?
False.
It is for the prosecutor to review the unused material, not the defence
TRUE OR FALSE: Material is to be considered potentially relevant unless it is incapable of having any impact on the case?
TRUE
What must the prosecution do if material does not meet the disclosure test but may prejudice an important public interest?
prosecution should not disclose the material but should keep it under review
What must prosecution do if material does meet the disclosure test bu also may prejudice an important public interest?
Prosecution should make an application for public interest immunity to keep the material from being disclosed
TRUE OR FALSE: Investigators must pursue reasonable lines of inquiry whether these point towards or away from the suspect
TRUE
Who reaches the decision on disclosure?
Prosecutor
What is a streamlined disclosure certificate?
Disclosure schedule for Magistrates’ court
What is considered to be ‘sensitive material’
Material which the investigator believes would give rise to a real risk of serious prejudice to an important public interest
What is the disclosure test?
material which may undermine the Prosecution case and assist the defence
TRUE OR FALSE: Prosecutors have a continuing duty of disclosure
TRUE
How can a prosecutor disclose material to the defence?
Either by providing a copy of the material or allowing inspection at a reasonable time and place
What must be done if Prosecutor has been given a schedule of unused material by police officer?
the schedule must be served on the accused when prosecutor makes disclosure
What happens with disclosure in Magistrates’ court if accused pleads guilty?
No disclosure necessary
What is the time limit for disclosure of unused material in the Crown court?
No limit
When must disclosure be made?
disclosure must be made as practicable
When must disclosure be made in the Magistrates’ court?
either at the hearing where Not Guilty plea entered or as soon as possible following indication of Not Guilty plea
What material can the defence apply for for disclosure?
material actually held
material inspected by the prosecutor
material which prosecutor would be entitled to hold or inspect if requested
What must the defence statement contain?
Nature of accused’s defence, including any defences they wish to rely
matters of fact on which accused takes issue with prosecution with reasons why
particulars of matters of fact which accused intends to rely
point of law/authorities which accused wishes to take
What is the defence’s ‘duty of disclosure’
it is a duty to reveal the case which will be presented at trial
What is the difference between the defence’s ‘duty of disclosure’ and the prosecutions ‘duty of disclosure’?
Defence: a duty to reveal the case which will be presented at trial
Prosecution: Duty to disclose material which may undermine the prosecution case and assist the defence’s case
TRUE OR FALSE: The defence’s duty of disclosure includes confidential discussions with lawyers/ self-incrimination?
False. no such obligation
What must be included in a defence statement if an alibi witness is given?
particulars of the alibi
Name
Address
DOB
When must defence give notice of intention to call a witness in summary trials? (magistrates’ court)
14 days from date prosecutor complies with duty to disclose
When must defence give notice of intention to call a witness in trials on indictment? (crown court)
28 days from date prosecutor complies with duty to disclose
TRUE OR FALSE: In Magistrates’ court, if accused does not provide a defence statement, they cannot make an applications for disclosure?
TRUE
TRUE OR FALSE: If an extension is sought, it must be accompanied by explanation?
TRUE
What happens if time limits are missed or duties are failed?
Court and other parties may comment on the failure and inferences may be drawn
In preparing a sensitive schedule, what must the investigators include?
reasons why the material is sensitive
degree of sensitivity
consequences of revealing material to defence
significance of material to issues in the trial
TRUE OR FALSE: In order to obtain material held by third party, an application must be made to the court?
FALSE.
What happens if a third party has material relevant to the case?
third party must be informed of the investigation and invited to to retain the material
What is the mechanism for securing disclosure of third party material?
through issuing of summons for the production of the materials
prosecutor’s continuing duty to review questions of disclosure under s.7A of the CPIA 1996 applies from the commencement of all criminal proceedings until the accused’s acquittal or conviction T OR F? Why?
F. continuing duty only applies once the prosecutor has completed initial disclosure.
T OR F
The defence is required to set out any evidence in the defence’s knowledge which undermines the defence case in the defence statement. WHY?
F. Not a requirement
T OR F
For large and complex cases in the Crown Court , the A-G’s Guidelines require that a clear investigation and prosecution policy must be devised and the approach to disclosure set out in a Disclosure Management Document
T
What is the A-G’s disclosure Guidelines for large and complex cases in the Crown Court?
a clear investigation and prosecution policy must be devised and the approach to disclosure set out in a Disclosure Management Document
