1) Introduction, Failure to Comply, and Initial Details of the Prosecution Case Flashcards
What are the possible outcomes of a failure to comply with obligations of disclosure on the part of the DEFENCE?
It may lead to the court drawing whichever inferences appear proper in deciding the guilt or innocence of the accused.
What are the possible outcomes of a failure to comply with obligations of disclosure on the part of the PROSECUTION?
(5 Points)
1) An accused does not have to make defence disclosure.
2) No inferences can be made.
3) The court could stay the proceedings on grounds of ‘abuse of process’.
4) A conviction may be overturned.
5) It could lead to an action for damages, or other such relief as the court sees fit under the Human Rights Act 1998 (Article 6 of the ECHR - The Right to a Fair Trial)
What are the possible outcomes if the prosecution have not made disclosure on time or fully?
A stay on the proceedings or a further adjournment is possible.
If there has been a failure to comply with disclosure on the part of the prosecution, will the case automatically be stayed?
NO - any failings should be brought to the attention of the CPS so that the matter can be considered:
R (On the Application of Ebrahim) v Feltham Magistrates’ Court [2001]
“It must be remembered that it is commonplace in a criminal trial for the defendant to rely on holes in the prosecution case. If in such a case, there is sufficient credible evidence, apart from the missing evidence, which, if believed, would justify safe conviction, then the trial should proceed, leaving the defendant to seek to persuade the jury or magistrates not to convict because evidence that might otherwise have been available was not before the court, through no fault of the defendant.”
What are the texts / legislation referred to in the disclosure chapter?
1) The Criminal Procedure and Investigations Act 1996 (CPIA)
2) The CPIA Code of Practice
3) The Attorney-General’s Guidelines on Disclosure for Investigators, Prosecutors, and Defence Practitioners
4) The CPS Disclosure Manual
What is the extent of the disclosure required from the prosecution?
The level of required disclosure will be a question of fact in each case:
Filmer v DPP [2006]
The prosecution are required to provide SUFFICIENT disclosure to ENABLE a defendant to PRESENT their CASE.
(^^^Comes up in MCQs^^^)
This willl depend on the evidence and issue in a particular case.
This must be the case otherwise the prosecution would have to second guess every question the defence may want to ask (which is where the defence disclosure becomes relevant).
What are the ‘Initial Details of the Prosecution Case’?
The material the defence are entitled to have in order to consider whether to plead guilty or not guilty.
What happened if there has been non-disclosure at the time a plea has been entered?
R v Tompkins [2005]
A defendant who had pleaded guilty should not in any way be in a worse position than a defendant who had pleaded not guilty.
Where an offence is one that can be tried in a Magistrates’ Court, by what point must the prosecution provide Initial Details of the Prosecution Case to the court and the defendant, according to Part 8 of the Criminal Procedure Rules 2015?
It must be provided ASA(Pr), and in any event, no later than the beginning of the first day of the first hearing.
Where an offence is one that can be tried in a Magistrates’ Court, what MUST the Initial Details of the Prosecution Case include, according to Rule 8.3 of the Criminal Procedure Rules 2015, if the defendant was in police custody immediately before the first hearing in the Magistrates’ Court?
1) A summary of the circumstances of the offence.
2) The defendant’s criminal record.
Where an offence is one that can be tried in a Magistrates’ Court, what MUST the Initial Details of the Prosecution Case include, according to Rule 8.3 of the Criminal Procedure Rules 2015, if the defendant was NOT in police custody immediately before the first hearing in the Magistrates’ Court?
(5 Points)
1) A summary of the circumstances of the offence.
2) Any account given in interview by the defendant.
3) Any written witness statement or exhibit that the prosecutor then has available and considers material relevant to plea, or to the allocation of the case for trial, or to sentence.
4) The defendant’s criminal record, if applicable.
5) Any available statement of the effect of the offence on a victim, their family, or others (VPS).
For trials at Crown Court, how will the defence receive the majority of the prosecution case?
Through the disclosure of witness statements or depositions.
For trials at the Crown Court, if the prosecution wish to use any additional evidence after committal, what MUST they do?
Serve this additional evidence on the defence.
It is suggested that Article 6 of the ECHR supports the need to provide Initial Details of the Prosecution Case to the defence in all cases, and that this should be done ASAP.
What are the two ‘minimum rights’ Article 6(3)(a) and 6(3)(b) say that anyone charged with a criminal offence has, which relate to this need for disclosure?
6(3)(a)
The right to be informed promptly, in a language which they understand, and in detail, of the nature and cause of the accusation against them.
6(3)(b)
The right to have adequate time and facilities for the preparation of their defence.
Does Article 6 of the ECHR give an absolute right to pre-trial disclosure?
No.
R v Stratford Justices, ex parte Imbert [1999]
Article 6 does not give an absolute right to pre-trial disclosure, it will be a question of whether the defendant can have a fair trial.
