5. Disclosure of unused material and defence statements Flashcards
D9.2
The Statutory Regime and the Common Law
D9.2
The statutory regime governing the disclosure of unused material by the prosecution and the disclosure of the defence case is set out in the CPIA 1996, part I (ss. 1 to 21), and supplemented by the Code of Practice issued under the CPIA 1996, s. 23 (‘CPIA Code’), CrimPR part 15, and a variety of other sources (see D9.5).
Prior to the CPIA 1996, common-law rules developed concerning the disclosure of prosecution material. However, following a number of high-profile miscarriages of justice in which failures in disclosure played a part (notably Ward [1993] 1 WLR 619; see further D9.50), a statutory scheme was developed. The statute followed, broadly, the recommendations of the Royal Commission on Criminal Justice (the Runciman Commission, July 1993).
The circumstances in which the CPIA 1996 now applies are set out in s. 1 (see D9.3). In summary, the regime is compulsory in relation to cases sent to the Crown Court to be tried on indictment. The statutory duties begin with the arrival of the case (by whatever route) in the Crown Court (s. 1(2)) and end with the conclusion of the trial, whether by conviction, acquittal, or the discontinuation of proceedings (s. 7A(1)(b)). The regime may also apply to any summary trial, including those in the youth court (see D9.37).
The CPIA 1996 expressly provides that it displaces the common law in cases to which it applies save in respect of common-law rules governing whether disclosure is in the public interest (see s. 21 and D9.49). It should be noted, however, that the position at common law remains relevant and that circumstances may arise in which a prosecutor may be required to disclose material to the defence outside the scheme of the CPIA 1996 (e.g., in connection with a bail application at an early stage, or following the conclusion of proceedings). The right for a defendant to have adequate time and facilities to prepare the defence is also expressly protected by the ECHR, Article 6(3)(b). The essential consideration for a prosecutor is whether disclosure of any material to the defence is required in accordance with the interests of justice and fairness. As Lord Bingham observed in H [2004] UKHL 3, [2004] 2 AC 134 at [14], prosecution disclosure is a requirement of basic fairness (the CPIA 1996 notwithstanding):
Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence. 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.
It is important to note that while the principle of fairness informs the duty of disclosure at all stages of proceedings, it does not follow that fairness requires the same level of disclosure at each stage. In respect of the position at common law prior to the engagement of the CPIA 1996, see D9.14 and DPP, ex parte Lee [1999] 2 All ER 737. In relation to the position following a conviction, see D9.24, Nunn [2014] UKSC 37, [2015] AC 225 and Gohil [2018] EWCA Crim 140, [2018] WLR 3697.
The legislative regime under the CPIA 1996 envisages a staged approach to the disclosure of unused prosecution material and the defence case:
(a) A statutory duty (reinforced by the CPIA Code) obliges police officers investigating an offence to record and retain all information and material, gathered or generated, that may be relevant to the investigation (see D9.10).
(b) Material which is relevant to the investigation but is not expected to form part of the prosecution case should be provided by the police to the prosecutor for review (see D9.12 to D9.13).
(c) The prosecution must apply the statutory test in the CPIA 1996, s. 3, to that material and must disclose any material meeting that test, usually together with a schedule of all the other material recorded and retained (see D9.13 to D9.28: separate obligations apply as regards material which is intended to be used).
(d) The defence, in turn, have a duty to inform the prosecution of the case which they intend to present at trial (see D9.29 to D9.47).
(e) The prosecution are, throughout proceedings, under a duty to disclose material which meets the statutory test for disclosure, which may prompt further disclosure (e.g., following the defence statement (see D9.24)).
(f) Following service of the defence statement and any further disclosure (or a failure to make further disclosure), an accused may make further applications for disclosure (see D9.26).
The CPIA 1996 provides for applications to be made to the court in circumstances where there is a dispute about whether the prosecution should disclose certain unused material (see D9.26); and there are sanctions laid down for a defendant who fails to provide details of his case on a timely basis and/or provides false or inconsistent information (see D9.42).
, the first sub-paragraph of D9.4
D9.4
Commencement Dates The disclosure provisions of part I of the CPIA 1996 apply to any alleged offence for which a criminal investigation began on or after 1 April 1997.
, D9.6
The Investigation Stage
D9.6
The responsibilities of investigators in relation to unused material are set out in a variety of sources, but chiefly the CPIA Code. This was revised and reissued in March 2015 to take account of changes recommended by the Magistrates’ Court Disclosure Review, designed to enable police disclosure officers to adopt a streamlined procedure in magistrates’ court cases.
The CPIA Code applies to all criminal investigations carried out by police officers (see s. 22), and, under s. 26, persons other than police officers charged with the duty of conducting criminal investigations (see D9.7).
The CPIA Code, para. 2.1, takes its definition of a criminal investigation from the CPIA 1996, s. 22, and provides a number of examples:
… a criminal investigation is an investigation conducted by police officers with a view to it being ascertained whether a person should be charged with an offence, or whether a person charged with an offence is guilty of it. This will include:
— investigations into crimes that have been committed;
— investigations whose purpose is to ascertain whether a crime has been committed, with a view to the possible institution of criminal proceedings; and
— investigations which begin in the belief that a crime may be committed, for example when the police keep premises or individuals under observation for a period of time, with a view to the possible institution of criminal proceedings.
, D9.8, t
Responsibilities of Investigators and Disclosure Officers
D9.8
The CPIA Code sets out the varying functions of individuals within a criminal investigation and their particular responsibilities as regards the disclosure process (albeit that different functions may be performed by the same individual). Among the definitions in the CPIA Code, certain key roles are notable, namely: an ‘investigator’ — any police officer involved in the conduct of a criminal investigation; a ‘disclosure officer’ — the police officer responsible for examining material retained by the police during the investigation and for revealing material to the prosecutor; and the ‘officer in charge of an investigation’ — the police officer responsible for directing a criminal investigation, including ensuring that proper procedures are in place for recording information, retaining records of information and other material in the investigation (para. 2.1). The CPIA Code emphasises the need to retain clear records of the identities of the persons performing these roles; that they are carried out by suitably experienced individuals, independent of the investigation; and that the investigative process is tailored to the circumstances of each case (paras. 3.3 to 3.7). Notably, the CPIA Code puts a police officer (the disclosure officer) at the centre of the disclosure process, as opposed to a qualified lawyer; a scheme that has not been without controversy. For a critical review of this regime by HM Inspectorate of Constabulary and HM Inspectorate of the CPS see ‘Making it Fair: The Disclosure of Unused Material in Volume Crown Court Cases’ (July 2017, available at tinyurl.com/y7ckf7br).
The CPIA Code provides for delegation under arrangements for joint investigations (para. 3.4) (though note Khan [2011] EWCA Crim 2240).
he first five
sub-paragraphs of D9.10 (up to ‘para. 5.6’)
Duty to Record and Retain Material
D9.10
Under the CPIA Code, investigators must record, in a durable or retrievable form, all material which may be relevant to the investigation and which is not already recorded. This obligation to record includes negative information, e.g., the fact that a number of people present at a particular place and time saw nothing unusual (para. 4.1).
The investigator is also responsible for retaining all material obtained in a criminal investigation that may be relevant to the investigation (para. 5.1).
What amounts to material that is ‘relevant to an investigation’ is a widely drawn definition. The CPIA Code provides (para. 2.1) that material will fall within this category if it appears to an investigator or disclosure officer that it has merely some bearing on any offence under investigation or any person being investigated, or on the surrounding circumstances of the case. Thus, material is to be considered potentially relevant unless it is actually incapable of having any impact on the case.
‘Material’ includes material gathered in the course of the investigation (e.g., documents seized in the course of searching premises) and generated by the investigation (e.g., interview records) (para. 2.1).
The CPIA Code expressly identifies that the duty to retain material will include, for example, the following categories of material: crime reports, including crime report forms, relevant parts of incident report books and police officers’ notebooks; final versions of witness statements; draft versions of witness statements where their content differs from the final version; interview records (written or taped); expert reports and schedules; any material casting doubt upon the reliability of a confession; and any material casting doubt on the reliability of a witness (para. 5.4). The CPIA Code also makes clear that the duty to retain material does not extend to items purely ancillary to the above categories which possess no independent significance, such as duplicates of documents (para. 5.6).
, D9.12-9.16
Duty to Reveal Material to the Prosecutor
D9.12
The CPIA Code, para. 6, establishes a procedure whereby retained material which may be relevant to an investigation, but which the disclosure officer believes will not form part of the prosecution case, must be listed on a schedule. The obligation to prepare a schedule arises in all cases likely to be heard in the Crown Court and all cases in the magistrates’ court where the accused is likely to plead not guilty.
In Crown Court cases, the disclosure officer must prepare a schedule on a form, known as the MG6C, which lists such retained material. In magistrates’ court cases where the accused is likely to plead not guilty, a streamlined disclosure certificate (a template for which is in the annex to the CPIA Code), is prepared. It is these schedules which the prosecutor will review when making decisions as to whether material is to be disclosed to the defence, applying the relevant statutory test.
Any ‘sensitive material’ should be listed in a separate schedule or, exceptionally, disclosed to the prosecutor separately. Sensitive material is defined as 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 (para. 2.1) (see further D9.49). Paragraph 6.15 provides examples of such material, ranging from material relating to national security to material given in confidence, and includes material relating to informants, undercover police officers, premises used for police surveillance, techniques used in the detection of crime, and material relating to child witnesses (e.g., material generated by a local authority social services department).
The A-G’s Guidelines (see appendix 4) emphasise that descriptions by disclosure officers in non-sensitive schedules should be clear and accurate and must contain sufficient detail to enable the prosecutor to make an informed decision on disclosure (para. 23). Sensitive schedules must contain sufficient information to enable the prosecutor to decide whether the material should be viewed, bearing in mind its confidential nature (para. 24).
An investigator should draw the prosecutor’s attention to any material which might satisfy the test for prosecution disclosure (see D9.15) and must give the prosecutor a copy of any material falling within certain categories in the CPIA Code, para. 7.3, including information provided by an accused which indicates an explanation for the offence and any material relating to the reliability of a confession or a prosecution witness.
The Court of Appeal has observed that ‘corporate knowledge’ operates in respect of information which falls to be disclosed; the prosecution duty to disclose is not rendered redundant if officers withhold information from counsel, or if officers withhold information from one another (Grant [2015] EWCA Crim 1815).
At the conclusion of the process, a disclosure officer must certify to the prosecutor that to the best of his knowledge and belief the duties imposed under the code have been complied with (CPIA Code, para. 9).
Responsibilities of Prosecutor to Review Material
D9.13
It is the prosecutor’s task to review the schedule(s) provided by the disclosure officer and to assess the need to make disclosure of the underlying material to the defence. That task is under-taken applying the statutory test for disclosure contained in the CPIA 1996, s. 3 (see D9.15). However, the duty on a prosecutor to review material and, where necessary, direct the disclosure of that material is a continuing one and the disclosure should be kept under review throughout proceedings (see D9.24).
The A-G’s Guidelines require prosecutors to do all that they can to facilitate proper disclosure. This includes probing actions taken by disclosure officers, reviewing schedules and, if necessary, taking action to correct or improve them (paras. 28 to 30). Prosecutors must consider any defence statement thoroughly, even if it points to other lines of inquiry. A prosecutor should advise the investigator if any such lines of inquiry should be pursued and challenge the lack of, or inadequate, defence statements in writing (para s. 31 to 33). (As to defence statements generally see D9.29.)
Prosecution advocates must ensure that all material which ought to be disclosed is disclosed to the defence, satisfy themselves that they are in possession of all relevant material and that they have been fully instructed as regards disclosure matters, and keep all disclosure decisions under review (para s. 35 to 37).
In Olu [2010] EWCA Crim 2975, [2011] 1 Cr App R 33 (404), the Court of Appeal (while upholding the conviction) observed that it is the task of the prosecutor to identify the issues in the case and for the disclosure officer to act under the prosecutor’s guidance; the disclosure regime will not work in practice unless the disclosure officer is directed by the prosecutor as to what is likely to be most relevant and important so that the officer approaches the matter through the exercise of judgement, not simply as a schedule-completing exercise. The Court of Appeal has also emphasised the need for disclosure officers to receive proper training (Malook [2011] EWCA Crim 254, [2012] 1 WLR 633).
In R [2015] EWCA Crim 1941, [2016] 1 WLR 1872 the Court of Appeal considered the particular problems faced by the prosecution in long and complex fraud cases involving the seizure of large volumes of material, encompassing several terabytes of electronic data, where it was not possible to review all of the material seized. Having considered the law and existing guidance, the Court drew a number of conclusions from which five broad propositions may be identified which are of particular relevance to cases involving large quantities of digital material:
(a) The prosecution are, and must be, in the driving seat at the stage of primary disclosure.
(b) The prosecution must encourage dialogue and prompt engagement with the defence.
(c) The law is prescriptive of the result of disclosure, not the method by which the process should operate.
(d) The process should be subject to robust case management by the judge, utilising the full range of case management powers.
(e) Flexibility is critical.
Among other matters, the Court endorsed the practice of ‘dip sampling’ material and the use of search tools by the prosecution to satisfy the disclosure obligation in a practicable and effective manner where the quantity of material to be reviewed would be unmanageable otherwise (though it noted that disclosure of the methodology of such sampling or searching would be important).
D9.14
Disclosure Post-charge but Prior to Statutory Obligation The scheme under the CPIA 1996 requires service of unused material at particular points (see D9.23), but, at common law and under the A-G’s Guidelines, investigators and prosecutors must recognise that the interests of justice and fairness in the particular circumstances of any case may require disclosure of material after the commencement of proceedings but before the statutory duty arises (A-G’s Guidelines, paras. 14 and 44). Likewise, the CPIA Code requires disclosure with the initial details of the case of material that might assist the defence with the early preparation of its case or at a bail hearing, irrespective of the anticipated plea (paras. 6.6 and 7.1). Examples of such material cited in the Code are relevant previous convictions of key prosecution witnesses and statements that have been withdrawn by witnesses. (As for the disclosure of previous convictions of witnesses generally see HM Advocate v Murtagh [2009] UKPC 36, [2011] 1 AC 731.)
In DPP, ex parte Lee [1999] 2 All ER 737, the Divisional Court considered whether the prosecution had a duty to disclose unused material in indictable-only offences prior to committal (prior to its abolition). The Court found that there might well be circumstances in which it would be helpful to the defence to know of unused material at an earlier stage. For example:
(a) the previous convictions of the alleged victim when they might be expected to help the defence in a bail application;
(b) material to help an application to stay proceedings as an abuse of process;
(c) material to help the accused prepare for trial, e.g., eye-witnesses whom the prosecution did not intend to use.
Kennedy LJ said that a responsible prosecutor should consider whether fairness required that some of this material might be disclosed. The question was: what immediate disclosure (if any) did justice and fairness require in the circumstances of the case? The Court found that the extent of the disclosure required at this stage was not the ‘full blown’ extent required under the CPIA 1996.
The Statutory Test: Initial Disclosure
D9.15
Though prosecution disclosure may be required in other circumstances (see D9.14), the main duty of the prosecution to make disclosure of material other than its case arises under the CPIA 1996, s. 3.
Section 3 requires a prosecutor to disclose previously undisclosed material to the accused if it ‘might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused’.
If there is no disclosable material, the accused must be given a written statement to that effect. The court officer must be informed by the prosecutor at the same time (CrimPR 15.2).
Prosecution material is defined in s. 3(2) and includes material which the prosecutor possesses or has been allowed to inspect under the provisions of the CPIA Code.
In determining whether unused material should be revealed to the defence as part of the disclosure process, as noted above, the statutory test is whether it might reasonably be considered capable of:
(a) undermining the case for the prosecution against the accused; or
(b) assisting the case for the accused.
It is important to emphasise that the test is an objective one and is to be approached impartially. Something can be said to be undermined if it becomes more likely to fall (or fail) as a result. The prosecution case will be more likely to fail if material points to a defect, discrepancy or inconsistency in that case.
In Barkshire [2011] EWCA Crim 1885, the Court of Appeal stated that the statutory test extends to anything available to the prosecution which might undermine confidence in the accuracy of evidence called by the prosecution, or which might provide a measure of support for the defence at trial. In that case, the failure of the prosecution to make proper disclosure of material relating to the role and activities of an undercover officer, as well as other material supportive of the defence case, where the materials were pertinent to a potential submission of abuse of process by way of entrapment and had the capacity to support the defence of necessity and justification, had rendered the trial unfair and the convictions unsafe.
The prosecution case might also be undermined as a result of a particular defence which the accused may or may not run. Clearly it is not possible to say with certainty, at the stage of initial disclosure, precisely what course the defence will take. That will come into focus after the service of a defence statement, though it will only be known for sure at trial. However, it is submitted that the fact that material in the possession of the prosecution raises a new issue in the case which might reasonably be considered capable of assisting the defence is likely to meet the statutory test for its disclosure.
In Whale [2016] EWCA Crim 742, the Court of Appeal considered a renewed application for leave to appeal on whether the scope of s. 3 required the disclosure of materials (in that case emails) created and retained by the accused but no longer held by him, which would serve as an aide-memoire as regards the events which formed the subject of the trial. The Court refused leave. It was found to be unarguable that the CPIA 1996 regime applied to documentation created (or received) by an accused and that documents said to be required for memory refreshing fell within its scope. (See also Hayes [2015] EWCA Crim 1944.)
In H [2004] UKHL 3, [2004] 2 AC 134, the House of Lords made clear that s. 3 does not require disclosure of material which is either neutral in effect or which is adverse to the accused, whether because it strengthens the prosecution or weakens the defence. For examples of cases where material was rightly withheld because nothing in it served to exculpate the accused, see Khan [2007] EWCA Crim 2911 and Yockney [2012] EWCA Crim 2974.
D9.16
The Court of Appeal has previously observed that there has been a wide range of serious misunderstandings as to the ambit of unused material to which the defence is entitled and as to the role to be played by the judge. The Judicial Disclosure Protocol states that ‘it is … essential that the trial process is not overburdened or diverted by erroneous and inappropriate disclosure of unused prosecution material’ (para. 3). It continues by stating that the ‘overarching principle is that unused prosecution material will fall to be disclosed if, and only if, it satisfies the test for disclosure applicable to the proceedings in question, subject to any overriding public interest considerations’ (para. 4). Prosecution advocates are cautioned against seeking to abrogate their responsibilities under the CPIA 1996 by disclosing material which does not pass the test for disclosure (para. 37).
However, the Judicial Protocol also warns that failure to disclose material to the defence remains the biggest single cause of miscarriages of justice. Likewise the CCRC has recently re-stated its view that the non-disclosure of material, at or before trial, which could have been of assistance to the defence remains a major cause of miscarriages of justice. The Court of Appeal has been critical of prosecutors who have appeared to apply a modified form of s. 3, based on whether the disclosable material goes to an issue on which they believe that the Crown will ultimately prevail (see, e.g., Gohil [2018] EWCA Crim 140, [2018] 1 WLR 3697).
and D9.18-9.22
D9.18
The A-G’s Guidelines (see appendix 4) set out some factors for a prosecutor to consider in deciding whether the s. 3 test is met for the purposes of initial disclosure in relation to any piece of material, including the following (paras. 6 to 8):
(a) the use that might be made of the material in cross-examination;
(b) its capacity to support submissions that could lead to the exclusion of evidence, a stay of proceedings or a 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.
In addition, material relating to the accused’s mental or physical health, intellectual capacity, or to any ill-treatment which he may have suffered in custody is said to be likely to fall within the test for disclosure (para. 8).
For large and complex cases in the Crown Court, the A-G’s Guidelines require that careful thought is given by prosecutors to prosecution-led disclosure from the very earliest stage (para. 50), a point reinforced by the Court of Appeal in R [2015] EWCA Crim 1941, [2016] 1 WLR 1872. A clear investigation and prosecution policy must be devised and the approach to disclosure set out in a Disclosure Management Document, tailored to the individual case, which sets out the prosecution’s approach to disclosure, dealing with such matters as digital, video and third-party material, and reasonable lines of inquiry, as well as their understanding of the defence case. Such a document should be served on the court and the defence at an early stage (para. 51).
D9.19
A prosecutor may disclose material to the defence either by providing a copy of the material or allowing inspection at a reasonable time and place (CPIA 1996, s. 3(3)). However, material must not be disclosed under s. 3 if a court has concluded that it is not in the public interest that it be disclosed (s. 3(6) and see D9.49 to D9.67). Nor may material be disclosed if its disclosure is prohibited by the IPA 2016, s. 56 (CPIA 1996, s. 3(7)). As for the disclosure of previous convictions of witnesses (including victims) and the extent to which this constitutes a lawful interference with the ECHR, Article 8, rights of the person whose convictions are to be disclosed, see the Privy Council decision in HM Advocate v Murtagh [2009] UKPC 36, [2011] 1 AC 731.
D9.20
Criminal Procedure and Investigations Act 1996, s. 3
(1) 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).
(2) For the purposes of this section prosecution material is 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, in pursuance of a code operative under Part II, he has inspected in connection with the case for the prosecution against the accused.
(3) Where material consists of information which has been recorded in any form the prosecutor discloses it for the purposes of this section—
(a) by securing that a copy is made of it and that the copy is given to the accused, or
(b) if in the prosecutor’s opinion that is not practicable or not desirable, by allowing the accused to inspect it at a reasonable time and a reasonable place or by taking steps to secure that he is allowed to do so;
and a copy may be in such form as the prosecutor thinks fit and need not be in the same form as that in which the information has already been recorded.
(4) Where material consists of information which has not been recorded the prosecutor discloses it for the purposes of this section by securing that it is recorded in such form as he thinks fit and—
(a) by securing that a copy is made of it and that the copy is given to the accused, or
(b) if in the prosecutor’s opinion that is not practicable or not desirable, by allowing the accused to inspect it at a reasonable time and a reasonable place or by taking steps to secure that he is allowed to do so.
(5) Where material does not consist of information the prosecutor discloses it for the purposes of this section by allowing the accused to inspect it at a reasonable time and a reasonable place or by taking steps to secure that he is allowed to do so.
(6) 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.
(7) Material must not be disclosed under this section to the extent that it is material the disclosure of which is prohibited by section 56 of the Investigatory Powers Act 2016.
(8) The prosecutor must act under this section during the period which, by virtue of section 12, is the relevant period for this section.
Service of Schedule
D9.21
In addition to providing material under s. 3, under s. 4 of the CPIA 1996, where the prosecutor has been given a schedule of unused material by a police officer under the CPIA Code (see D9.12), he must serve that schedule on the accused when he makes disclosure of unused material under s. 3.
Criminal Procedure and Investigations Act 1996, s. 4
(1) This section applies where—
(a) the prosecutor acts under section 3, and
(b) before so doing he was given a document in pursuance of provision included, by virtue of section 24(3), in a code operative under Part II.
(2) In such a case the prosecutor must give the document to the accused at the same time as the prosecutor acts under section 3.
Summary Trials — Nature of Prosecution’s Obligations
D9.22
By virtue of s. 1(1), the CPIA 1996 partially incorporates summary proceedings into the statutory disclosure scheme (see D9.2). The prosecution’s duty of disclosure applies whenever the accused pleads not guilty and the court proceeds to summary trial. The CPIA Code provides for a streamlined disclosure process in such cases, involving a simplified disclosure schedule (para. 6 and see also D9.12 and D9.14). The Judicial Disclosure Protocol states that the principles relating to disclosure apply equally in the magistrates’ courts. It follows that, whilst disclosure of unused material is undoubtedly essential in order to achieve justice, misconceived applications for disclosure, or inappropriate disclosure, must be avoided (see para. 30). Prosecutors are required to take into account information provided as to the defence case in the case management forms when conducting any review of material (para. 33). The A-G’s Guidelines require prosecutors to be alert to the possibility that material may exist which should be disclosed to the defence prior to the CPIA requirements applying to the case (para. 44).
