2.7 Disclosure - prosecution Flashcards
Why is unused material important?
Fairness demands that material in the hands of the prosecution that might help a defendant is served on that defendant.
R v H [2004] UKHL 3
“Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure. The golden rule is that full disclosure of such material should be made.”
Where are the main disclosure provisions to be found?
- The Criminal Procedure and Investigations Act (CPIA) 1996, Part 1 (ss.1 to 21)
- The Code of Practice on Disclosure, issued under s.23 CPIA (the Disclosure Code of Practice)
- Criminal Procedure Rules (CrimPR) Part 15
- The Attorney General’s Guidelines on Disclosure – for Investigators, Prosecutors and Defence Practitioners (the A-G’s Guidelines)
- The Judicial Protocol on the Disclosure of Unused Material in Criminal Cases (the Judicial Disclosure Protocol). The disclosure provisions in this element relate to offences in relation to which criminal investigations commenced on or after 1 April 1997.
What are the four stages of disclosure?
(1) the investigation stage- the duty to record and retain material during the investigation;
(2) the initial duty of disclosure on the prosecution;
(3) defence disclosure; and
(4) the continuing duty on the prosecution to keep disclosure under review.
What three types of police officer must every investigation have?
Criminal Procedure and Investigations Act 1996 Code of Practice 2.1
- an officer in charge of the investigation- who is responsible for directing the investigation and ensuring that proper procedures are in place for recording information and retaining records of information and other material;
- an investigator- namely any police officer conducting the investigation; and
- a disclosure officer- who is responsible for examining material retained and revealing material to the prosecutor and to the defence at the prosecutor’s request.
What disclosure duty applies at the investigation stage?
The duty to retain and record relevant material.
Under the Disclosure Code of Practice, during a criminal investigation all material (including information) which may be relevant to the investigation must be recorded in a durable or retrievable form and retained.
What does the duty to retain and record relevant material entail for the different officers in the investigation?
The Disclosure Code of Practice
[??] The officer in charge of the investigation is responsible for directing the investigation and ensuring that proper procedures are in place for recording information and retaining records of information and other material.
3.5 the investigator should pursue all reasonable lines of inquiry, whether these point towards or away from the suspect.
2.1 Disclosure officers- must inspect, view, listen to or search all relevant material that has been retained by the investigator and must provide a personal declaration that this has been done. Where there is doubt as to whether any material is disclosable, the disclosure officer must seek the advice and assistance of the prosecutor.
How long must material be retained?
Chapter 5 Disclosure Code of Practice
- Until a decision not to prosecute, or
- Until the accused is acquitted, or
- The prosecution decides not to continue with the case, or
- Until the defendant is released from custody or 6 months from a non-custodial conviction, or
- Until the appeal is concluded.
Where material comes to light after proceedings have concluded which throws doubt upon the safety of the conviction, the prosecutor must consider disclosure.
In Crown Court cases, how does the Disclosure Officer notify the Prosecutor of unused material?
Disclosure Code of Practice 6.8-6.11
In Crown Court cases the disclosure officer prepares a schedule known as an MG6C which individually lists the items of unused material.
In Magistrates Court cases, how does the Disclosure Officer notify the Prosecutor of unused material?
Disclosure Code of Practice
6.5
Where a Not Guilty plea is anticipated the unused material is listed on a streamlined disclosure certificate.
6.3
Where a Guilty plea is anticipated disclosure is not required.
How does the Disclosure Officer deal with sensitive material?
Disclosure Code of Practice
6.15
Sensitive material, which the disclosure officer believes would give rise to a real risk of serious prejudice to an important public interest, is listed separately in a sensitive schedule or
6.16
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 of a Public Interest Immunity Application at a later stage.
What do Disclosure Officers do to confirm their compliance with the Disclosure Code of Practice?
Disclosure Code of Practice 9.1
Disclosure Officers must certify that to the best of their knowledge and belief they have complied with their duties under the Disclosure Code of Practice.
What is the Prosecutor’s initial duty with regard to disclosure?
Section 3(1) Criminal Procedure and Investigations Act 1996
The prosecutor must—
(a) disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused , or
(b) give to the accused a written statement that there is no material of a description mentioned in paragraph (a).
What counts as “prosecution material” for the purposes of disclosure?
Section 3(2) Criminal Procedure and Investigations Act 1996
(a) which is in the prosecutor’s possession, and came into his possession in connection with the case for the prosecution against the accused, or
(b) which, in pursuance of a code operative under Part II, he has inspected in connection with the case for the prosecution against the accused.
When does the Prosecutor’s duty to disclose apply?
Section 7A Criminal Procedure and Investigations Act 1996
(1) This section applies at all times—
(a) after the prosecutor has complied with section 3 or purported to comply with it, and
(b) before the accused is acquitted or convicted or the prosecutor decides not to proceed with the case concerned.
(2) The prosecutor must keep under review the question…
(3) If at any time there is any such material as is mentioned in subsection (2) the prosecutor must disclose it to the accused as soon as is reasonably practicable…
What further guidance is contained within the Attorney General’s Guidelines?
Attorney General’s Guidelines on Disclosure
6.
In deciding whether material satisfies the disclosure test, consideration should be given amongst other things to:
a. the use that might be made of it in cross-examination;
b. its capacity to support submissions that could lead to:
(i) the exclusion of evidence;
(ii) a stay of proceedings, 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;
c. its capacity to suggest an explanation or partial explanation of the accused’s actions;
d. the capacity of the material to have a bearing on scientific or medical evidence in the case.
7.
it should also be borne in mind that while items of material viewed in isolation may not be reasonably considered to be capable of undermining the prosecution case or assisting the accused, several items together can have that effect.