2.7 Disclosure - additional issues Flashcards
What can the defendant do if it believes that the prosecutor holds undisclosed evidence that would be helpful to its defence?
Section 8 Criminal Procedure and Investigations Act 1996
D can apply to the court where it has reasonable cause to believe that there is prosecution material which should have been disclosed under s.7A(5) CPIA (ie disclosure following service of the Defence Statement) but which has not been disclosed.
This is commonly known as a ‘section 8 application’ or an ‘application for specific disclosure’.
What can the prosecutor do to resist specific disclosure?
Section 8(5) Criminal Procedure and Investigations Act 1996 Material must not be disclosed under this section to the extent that the court, on an application by the prosecutor, concludes it is not in the public interest to disclose it and orders accordingly.
Judicial Disclosure Protocol para 26
“defence requests for disclosure of particular pieces of unused prosecution material which are not referable to any issue in the case identified in the defence statement should be rejected.”
What must the defendant have done previously in order to request specific disclosure?
Section 8(1) CPIA D must have served a defence statement.
What must D do to request specific disclosure?
CrimPR 15.5
the defendant must serve the application on the court and the prosecution. The application must describe the material the defendant wants to be disclosed and explain why there is reasonable cause to believe:
(a) that the prosecutor has the material; and
(b) that it is material that should be disclosed under the CPIA.
The defendant should ask for a hearing if one is required and explain why it is needed. The prosecution has 14 days to respond in writing to any such application.
What are the possible consequences of failures of disclosure by the prosecution?
- The defence could bring an application to stay the indictment on the ground that to continue the case would be an abuse of process of the court.
- It could result in a conviction being quashed on appeal due to being unsafe.
- It would be likely to result in delay and the imposition of wasted costs for unnecessary hearings or a refusal to extend custody time limits.
- It could also potentially result in the exclusion of evidence in the case due to unfairness.
Prior to making any such formal application the defence should write to the prosecution specifying the material which they seek and make a formal application for specific disclosure. Particularly in large and complex cases, legal representatives are encouraged to cooperate.
What is the procedure for the prosecutor to obtain disclosure from third parties?
A-G’s Guidelines 53-64 and 44-50 Judicial Protocol on the Disclosure of Unused Material in Criminal Cases
What is the procedure for the prosecutor to obtain disclosure from third parties?
A-G’s Guidelines 53-64 and 44-50 Judicial Protocol on the Disclosure of Unused Material in Criminal Cases
The third party should be informed of the investigation and a request should be made for the material to be retained.
There must be some reason to believe that the third party holds relevant material.
Where material is requested from a third party but access or disclosure is refused, the prosecution can consider (in the Crown Court) seeking a summons under s.2 Criminal Procedure (Attendance of Witnesses) Act 1965 for production of the material, or (in the magistrates’ court) under the similar provisions in s.97 of the Magistrates’ Court Act 1980.
What happens where the prosecution does not wish to disclose the material, believing that to do so would give rise to a real risk of serious prejudice to an important public interest?
Section 3(6) CPIA Material must not be disclosed under this section to the extent that the court, on an application by the prosecutor, concludes it is not in the public interest to disclose it and orders accordingly.
[This is known as Public Interest Immunity or PII.]
