5: Disclosure Flashcards
What disclosure applies to bail application?
Common law disclosure applies to bail apps – common law disclosure TEST = just and fair.
What is the investigation stage for disclosure?
Police officer at centre disclosure, not lawyer.
“Police officers” =
investigators
“Disclosure officer” =
police officer responsible for examining material + revealing this to pros.
“Officer in charge of investigation” =
ensures proper procedures in place for recording info, retaining records + other material.
DUTY RECORD+RETAIN MATERIAL = Investigators MUST record –
WHAT?
durable or retrievable form all relevant material, incl negative info. Material is relevant unless no impact on case.
Material includes: material gathered (e.g. docs) and generated by investigation (e.g interview). Duty to retain material e.g. crime reports. BUT NOT if purely ancillary + no independent significance e.g. duplicates.
What is the duty to reveal to prosecution?:
If relevant to investigation, but disclosure off thinks wont form pros case, MUST be listed on schedule. Preparing sch occurs where case likely heard in CC and Mags where D likely plead not guilty.
What must be disclosed in:
CC - disclosure MUST prepare schedule.
Mags - where likely plead not guilty = streamlined disclosure certificate.
In disclosure:
Prosecution looks at
WHAT?
Pros looks @ schedules to see if material should be disclosed to D.
Sensitive material =
real risk of serious prejudice to important public interest if disclosed.
. Sensitive material should be listed in
separate schedule or disclosed separately. Investigator should draw pros attention to relevant material.
nvest MUST give pros info of D’s explanation and reliability of confession or witness. At end, disclosure officer MUST certify = complied with code.
Duty on pros = continuing. Pros should advise invest lines of inquiry to pursue + lack of defence statement. Pros can “dip sample” =
use search tool to satisfy disclosure ob. Disclosure with initial details with bail hearing if fair and just.
A pros must disclose if: TEST
: might reasonably undermine case for pros or assist D. It is objective. If no material, D must get written statement of this.
TEST for disclosure:
1.
- Undermine pros case; or
- Assist D’s case
NOT if material is neutral or adverse to D.
Factors for Pros:
- Material in cross-examin
- Can support exclusion of evidence, stay proceedings
- Explanation for D’s actions
- Scientific/medical evidence
TIME-LIMIT for disclosure:
CC =
NO time limit unused material. It is continuing.
TIME-LIMIT for disclosure:
Mags =
where streamlined disclosure certificate required, MUST be disclosed -) D at hearing plea entered, or ASAP following formal indication. If prelim hearing, jury should impose early timetable for disclosure
What is the disclosure:
Following conviction =
Between conviction + sentencing =
On appeal =
Following conviction = no duty to investigate.
Between conviction + sentencing = duty to disclose.
On appeal = disclose if relevant to ground of appeal.
Disclosure Management Doc = invest + pros policy + approach set out, it is tailored. This should be served on court+def at early stage.
Pros discloses to Def by:
- Providing copies, not necessary in same form; or
- Allowing inspection at reasonable time+place
Material MUST not be disclosed if not in public interest.
Service of schedule = where pros given schedule of unused material by police, MUST serve on
D when makes disclosure of unused material.
Pros = continuing duty to review. MUST disclose unless prohibited in public interest. Where court ruled against disclosed on public interest, MUST keep decision under review.
After defence statement, MUST be repeat exercise of initial disclosure, e.g. invest draw pros attention to material. Disclosure off must certify compliance with duties.
Def app for disclosure = if D served
defence statement + reasonable cause - pros complied/failed further disclosure, D MAY apply for disclosure. May apply to material held/inspected and pros entitled to hold/inspect. Apps for specific disclosure not referable to an issue = rejected. Judge can deal with app on written submissions only.
DEFENCE STATEMENT – When case is X
When case -) CC + pros case serve, D must give defence statement to court + pros. D’s duty of disclosure = reveal the case.
dEFENCE STATEMENT
wHEN does one not need to be given?
In def statement, if D raises no positive case + required pro to prove, there is no failure to comply, BUT def statement MUST make this clear.
Defence statement must set out D’s case and:
- Nature of defence + defences relied
- Matters he takes issue with + reasons
- Matters of fact intends to rely
- Points of law to rely on + authorities
Is D required to disclose confidential discussions?
Pro MUST say which inferences they ask jury to infer. D not required to disclose confidential discussions = legal privilege.
What must be given in
alibi:
if def statement discloses this:
- name,
- address +
- Date of Birth
MUST be given.
If D doesn’t know details = MUST give info that may assist in finding them. Changes to alibi witness = procedure for updated disclosure.
Obligation to provide witness details trigged by D’s belief witness can assist. NOT necessary witness is willing to.
Notification details of Def witness:
Def MUST notify court + pros
separately from def statement of any witnesses they intend to call other than D and alibi.
Notification details of Def witness:
Def must provide:
- names,
- address,
- DOB.
Notice of intention to call witness within 14 days and 28 days from date pros comply with duty of disclosure. Can be extended. Changed to plans to call witnesses = amended notice to court + pros.
CC – DEF STATEMENT – Def statement MUST be served
within 28 days of pros compliance with initial disclosure.
CC – DEF STATEMENT
Can get extension but MUST be made
before deadline expires.
CC – DEF STATEMENT
Can get extension but MUST be made
App must not be granted unless TEST:
: not reasonable to require D give Def state within 28 dys. No limit on no apps made.
Time runs: from date service of pros statement, not from service scheduled unusued material. Right to further disclosure not lost if short delay in serving def statement. Extensions not granted lightly, app should be accompanied by explanation. If relevant period expires on sat, sun, bank holiday, it expires the next day.
CC – DEF STATEMENT
Only D can make app to extend. Such app must:
- Made within relevant period
- Specify grounds on which made;
- State no days extension
SUMMARY TRIAL – DEF STATEMENT
Must a def statement be given?
No obligation def provide def statement. But once pros complied disclosure duty, D may give pros + court def statement. Where D does, he MUST within 14 days date pros complies.
SUMMARY TRIAL – DEF STATEMENT
What happens if D provides a def statement?
= where late service def statement may delay proceedings, app to adjourn must be scrutinised carefully, difficult issues of disclosure should be referred to district judge.
SUMMARY TRIAL – DEF STATEMENT
What happens if there is no defence statement?
D CANNOT make app for specific disclosure, and court cannot make order for disclosure unused pros material. Even if def statement not given, def MUST identify real issues in case.
PUBLIC INTEREST IMMUNITY = Material CANNOT be disclosed if: TEST
risk of prejudice to an important public interest. It must NEVER impel overall fairness of trial. Apps by pros are = public interest immunity apps.
Material that might be subject public interest immunity MUST be recorded by investigators in “sensitive schedule”.
PUBLIC INTEREST IMMUNITY =
Investigators MUST specify
- reasons why
- degree of sensitivity
- consequences of revealing it
- significant to issues in trial
- involvement of Third parties
- implications for continuance of pros if disclosure ordered; and
- whether possible to disclose without compromising sensitivity.
SANCTIONS for failing def materials = if:
XX
Court/Pros MAY comment on failure, but comments MUST require leave of court.
- Fails give initial def statement required in CC cases;
- Gives initial def statement after 14 day period in mags, or 28 dy period in CC;
- Fails provide updated statement
- Sets out inconsistent def in def statement
- Put forward def at trial not in def statement
- Gives evidence alibi or call witness in support without notification alibi witness
- Call witness not included/adequately identified
SANCTIONS for failing def materials
Court/Pros MAY comment on failure, but comments MUST require leave of court.
Where leave is required:
- Point of law/ authority relied on
- Failure to give notice/adequately identify witness; or
- Failure to give notice in time.
Court/jury may give such inferences proper. But cannot convict solely on that basis. Cc has no power to prevent witness being called or punish with contempt of court.
SANCTIONS for failing def materials INCLUDE:
- CANNOT punish with contempt of court
- Cannot rule alibi witness inadmissible
CAN – make adverse comment +court/jury draw inferences. CAN make a wasted costs order.
What is:
Third party disclosure?:
: Investigators must invest all reasonable lines inquiry inc those away from D. Where Third part has relevant material, TP must be informed and invited to retain material in case of request for disclosure. Speculative inquiries of TP are not required – MUST be reason why believe they hold relevant material.
Third party disclosure
TEST:
TEST: persistent pros who does not readily take no for answer = reasonable investigative steps.
Pre-trial disclosure = Apps can be made for D. Pros under obligation to
obtain material in hands of TP which might be relevant. Unless material is volunteered, obtaining TP material is issuing witness summons.
