5. Disclosure of unused material and defence statements Flashcards
when does statutory duty begin and end?
begins with arrival of case in MC/CC and ends with conclusion of trial (conviction, acquittal or discontinuation of proceedings)
when can common law require disclosure outside of the statutory times?
connection with bail apps or after conclusion of proceedings
what is the essential consideration for pros disclosure?
interests of justcie and fairness.
what does fairness disclosure require?
material held by pros but not being relied on by them that:
* weakens pros case or
* strengthens D’s case
what is the statutory test for disclosure in s.3 CPIA?
disclose any pros material that has not been disclosed which might reasonably be capable of undermining pros case or assisting accused case
what is prosecution material defined as?
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.
when is pros statutory disclosure duty active?
throughout proceedings
when can accused make application for specific disclosure?
after service of defence statement and further pros disclosure AND dispute as to whether it should be disclosed.
what are the responsibilities of investigators?
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)
what procedure is followed where material relevant but wont form part of pros case?
list on a schedule (CC)
disclosure certificate (MC)
what does pros use schedule for?
decide which material needs to be disclosed to defence based on stat test
how is sensitive material dealt with?
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.
what does disclosure officer do?
makes schedules of unused pros material
what are the prosecutors responsibilities?
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
what is pre-charge engagement?
where prosecutors, investigators, suspects and legal reps can enter into discussions about the investigation at any time after first PACE interview and before charge.
in what circs would disclosure before statutory duty comes into play be useful?
pre-cons for bail app
material for app to stay proceedings (abuse of process)
material to help accused prepare for trial
what is done if there is no disclosable material ?
written statement and court officer informed at same time
when do disclosure management docs have to be served?
served to defence and court as early as possible and no less than 7 days before PTPH
what factors are considered to decide whether s.3 test is met?
- 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
who prepares disclosure and management doc?
prosecutor
what is the time limit for disclosure?
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.
what does disclosure management doc include?
- explanation of how disclosure responsibilities have been managed
- summary of pros case
- how pros will comply with stat duty
- pros understanding of defence case
pros are under a continuing duty to…
review and apply s.3 test throughout.
after defence statement served which process is repeated?
process of initial disclosure.
subsequent material must be disclosed …
as soon as reasonably practicable unless prohibited under public interest rule.
there is a common law duty between conviction and sentence to disclose…
material relevant to sentence that is not known to accused
what is pros duty to disclose after conclusion of proceedings?
any material which might reasonably be considered capable of casting doubt on the safety of the conviction
under what section is a specific disclosure app made?
s.8
what must specific disclosure app include?
- 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.
when must accused serve defence statement?
in CC, once pros case is served
what does defence statement have to cover?
- 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
when must pros provide the investigator with the defence statement
as soon as reasonably practicable
when can counsel draft/settle defence statement?
only when given the opportunity and adequate time to gain proper familiarity with the case and to comply with fundamental requirements.
what alibi details are required in defence statement?
name, address, dob
when must defence give notice of defence witnesses?
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
are defence statements required in summary proceedings?
no, but if none is given cannot make any app for specific disclosure.
when must defence statement be served in CC?
within 28 days of pros complying with duty of initial disclosure
excludes weekends and bank hols
when can time limit for defence statement be extended?
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
what does application to extend time limit have to include?
reasons
number of days they want it extended by.
how many apps to extend time limits can be made?
unlimited
what can court do if D fails to comply with disclosure requirements?
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.
when is public interest immunity engaged?
where material cannot be disclosed without risk of prejudice to important public interst
who makes public interest immunity application?
prosecution
what must be specified in sensitive material schedule?
- 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
obligations of investigators in investigating?
pursue all reasonable lines of inquiry pointing towards & away from suspect.
how should investigators deal with material held by 3rd party?
third party must be informed of the investigation and invited to retain the material in case a request for disclosure is made.
what is the test to decide what investigative steps are necessary?
start from the position of a persistent prosecutor who does not readily take ‘no’ for an answer
how is pre-trial disclosure of 3rd party material secured?
issuing witness summons for production of documents.
