5. Disclosure of unused material and defence statements

Question 1

when does statutory duty begin and end?

Answer 1

begins with arrival of case in MC/CC and ends with conclusion of trial (conviction, acquittal or discontinuation of proceedings)

Question 2

when can common law require disclosure outside of the statutory times?

Answer 2

connection with bail apps or after conclusion of proceedings

Question 3

what is the essential consideration for pros disclosure?

Answer 3

interests of justcie and fairness.

Question 4

what does fairness disclosure require?

Answer 4

material held by pros but not being relied on by them that:
* weakens pros case or
* strengthens D’s case

Question 5

what is the statutory test for disclosure in s.3 CPIA?

Answer 5

disclose any pros material that has not been disclosed which might reasonably be capable of undermining pros case or assisting accused case

Question 6

what is prosecution material defined as?

Answer 6

material:
(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 has been inspected in connection with the case for the prosecution against the accused.

Question 7

when is pros statutory disclosure duty active?

Answer 7

throughout proceedings

Question 8

when can accused make application for specific disclosure?

Answer 8

after service of defence statement and further pros disclosure AND dispute as to whether it should be disclosed.

Question 9

what are the responsibilities of investigators?

Answer 9

retain all relevant material

relevant material = material which has bearing on offence under investigation

material = material gathered in course of investigation (docs seized in search) and generated by investigation (interview records)

Question 10

what procedure is followed where material relevant but wont form part of pros case?

Answer 10

list on a schedule (CC)
disclosure certificate (MC)

Question 11

what does pros use schedule for?

Answer 11

decide which material needs to be disclosed to defence based on stat test

Question 12

how is sensitive material dealt with?

Answer 12

separate schedule or disclosed separately

sensitive material = material which the investigator believes would give rise to a real risk of serious prejudice to an important public interest if it were to be disclosed.

Question 13

what does disclosure officer do?

Answer 13

makes schedules of unused pros material

Question 14

what are the prosecutors responsibilities?

Answer 14

review schedules and assess whether material needs disclosing (stat test).
should:
* bring concerns to attention of dsiclosure officer
* probe actions taken by investigators
* reviewing schedules
* considering defence statements thoroughly
ensure all material disclosed
advise on further lines of enquiry

Question 15

what is pre-charge engagement?

Answer 15

where prosecutors, investigators, suspects and legal reps can enter into discussions about the investigation at any time after first PACE interview and before charge.

Question 16

in what circs would disclosure before statutory duty comes into play be useful?

Answer 16

pre-cons for bail app
material for app to stay proceedings (abuse of process)
material to help accused prepare for trial

Question 17

what is done if there is no disclosable material ?

Answer 17

written statement and court officer informed at same time

Question 18

when do disclosure management docs have to be served?

Answer 18

served to defence and court as early as possible and no less than 7 days before PTPH

Question 18

what factors are considered to decide whether s.3 test is met?

Answer 18

• use of material
• capacity to support exclusion of ev apps
• explanation of accused actions
• capacity to undermine reliability/credibility of pros witness
• capacity to have bearing on scientific/medical ev

Question 19

who prepares disclosure and management doc?

Answer 19

prosecutor

Question 20

what is the time limit for disclosure?

Answer 20

CC - Disclosure made as soon as reasonably practicable after the happening of a particular event such as service of prosecution case

MC - disclosure certificate must be disclosed either at hearing at which NG plea entered or asap following formal NG indication

judge can set timetable for disclosure.

Question 20

what does disclosure management doc include?

Answer 20

• explanation of how disclosure responsibilities have been managed
• summary of pros case
• how pros will comply with stat duty
• pros understanding of defence case

Question 21

pros are under a continuing duty to…

Answer 21

review and apply s.3 test throughout.

Question 22

after defence statement served which process is repeated?

Answer 22

process of initial disclosure.

Question 23

subsequent material must be disclosed …

Answer 23

as soon as reasonably practicable unless prohibited under public interest rule.

Question 24

there is a common law duty between conviction and sentence to disclose…

Answer 24

material relevant to sentence that is not known to accused

Question 25

what is pros duty to disclose after conclusion of proceedings?

Answer 25

any material which might reasonably be considered capable of casting doubt on the safety of the conviction

Question 26

under what section is a specific disclosure app made?

Answer 26

s.8

Question 27

what must specific disclosure app include?

Answer 27

• describe material and
• explain why there is reasonable cause to believe that the prosecutor is in possession of the material and why it meets the test for disclosure.

Question 28

when must accused serve defence statement?

Answer 28

in CC, once pros case is served

Question 29

what does defence statement have to cover?

Answer 29

• nature of defence
• matters of fact they take issue with & why
• facts accused relies on for defence
• points of law and authorities for accused to rely on

Question 30

when must pros provide the investigator with the defence statement

Answer 30

as soon as reasonably practicable

Question 31

when can counsel draft/settle defence statement?

Answer 31

only when given the opportunity and adequate time to gain proper familiarity with the case and to comply with fundamental requirements.

Question 32

what alibi details are required in defence statement?

Answer 32

name, address, dob

Question 33

when must defence give notice of defence witnesses?

Answer 33

Notice of intention to call a witness must be given within:
* 14 days (summary)
* 28 days (crown proceedings)
from the date when the prosecutor complies, or purports to comply, with the duty to disclose under s. 3.

excludes weekends bank hols

Question 34

are defence statements required in summary proceedings?

Answer 34

no, but if none is given cannot make any app for specific disclosure.

Question 35

when must defence statement be served in CC?

Answer 35

within 28 days of pros complying with duty of initial disclosure

excludes weekends and bank hols

Question 36

when can time limit for defence statement be extended?

Answer 36

app must be made before deadline expires AND
court is satisfied that it would not be reasonable to require the accused to give a defence statement within 28 days

Question 37

what does application to extend time limit have to include?

Answer 37

reasons
number of days they want it extended by.

Question 38

how many apps to extend time limits can be made?

Answer 38

unlimited

Question 39

what can court do if D fails to comply with disclosure requirements?

Answer 39

can comment and allow court/jury to draw inferences as appear proper (cannot be convicted solely on this).
costs order can be made where failure means additional expense for pros.

Question 40

when is public interest immunity engaged?

Answer 40

where material cannot be disclosed without risk of prejudice to important public interst

Question 41

who makes public interest immunity application?

Answer 41

prosecution

Question 42

what must be specified in sensitive material schedule?

Answer 42

• reasons why sensitive
• how sensutuve
• consequences of revealing to defence
• significance of material to issues in trial
• involvement of 3rd parties bringing material to police attention
• if possible to disclose without compromising sensitivity

Question 43

obligations of investigators in investigating?

Answer 43

pursue all reasonable lines of inquiry pointing towards & away from suspect.

Question 44

how should investigators deal with material held by 3rd party?

Answer 44

third party must be informed of the investigation and invited to retain the material in case a request for disclosure is made.

Question 45

what is the test to decide what investigative steps are necessary?

Answer 45

start from the position of a persistent prosecutor who does not readily take ‘no’ for an answer

Question 46

how is pre-trial disclosure of 3rd party material secured?

Answer 46

issuing witness summons for production of documents.