6) and 7) Preparation and Revelation of Material for the Prosecutor

Question 1

GAP Cases

If the accused is charged with a summary only offence, or an either-way offence that is likely to remain in Magistrates’ Court, and it is considered likely that they will plead guilty (e.g. because they have admitted the offence), there is now a streamlined disclosure procedure. In these cases…

1) …what is NOT required?
2) …what duty remains?
3) …if there is no material that may assist the defence to be disclosed, what must be completed?
4) If, contrary to expectations, the accused pleads not-guilty at the first hearing, what must the Disclosure Officer then ensure?

Answer 1

1) A Schedule or a Streamlined Disclosure Certificate.
2) The Common Law duty set out in R v DPP ex parte Lee [1999] to disclose material that may assist the defence at BAIL HEARINGS or in the EARLY PREPARATION of their case, if it exists.

In addition the certification on the Police Report (MG5 / SDF) must be completed.

3) A certificate to that effect must be completed in like form to that attached in the Annex to the CPIA Code of Practice.
4) That the Streamlined Disclosure Certificate is prepared and submitted ASA(Pr) afterwards.

Question 2

NGAP Cases

If the accused is charged with a summary only offence, or an either-way offence that is likely to remain in Magistrates’ Court, and it is considered likely that they will plead NOT guilty, what must be completed?

Answer 2

A Streamlined Disclosure Certificate, in like form to that attached in the Annex to the CPIA Code of Practice.

Question 3

If the accused is charged with a summary only offence, or an either-way offence that is likely to remain in Magistrates’ Court…

…what note must be made, if (irrespective of anticipated plea) there is material known to the Disclosure Officer that might assist the defence with the early preparation of their case, or at a bail hearing, for example a key prosecution witness having relevant convictions, or a witness withdrawing their statement?

Answer 3

A note must be made on the MG5, or in any other recognised format agreed under the National File Standards.

The material itself must be disclosed to the prosecutor who will in turn disclose it to the defence if they think it meets this Common Law criteria as set out in R v DPP ex parte Lee [1999].

Question 4

If the accused is charged with a summary only offence, or an either-way offence that is likely to remain in Magistrates’ Court…

…what happens if there is no material that may fall to be disclosed as undermining the prosecution or assisting the defence?

Answer 4

The officer should complete the appropriate entry on the Streamlined Disclosure Certificate.

Question 5

If the accused is charged with an indictable only offence, or one triable either-way but that is considered likely to be tried on indictment…

1) …what must the Disclosure Officer ensure?
2) …and if there is material which the Disclosure Officer does NOT believe is sensitive, what must the Disclosure Officer include on the Schedule of Non-Sensitive Material?

Answer 5

1) That the unused material schedules are prepared - the MG6 series.
2) A statement that the Disclosure Officer does NOT believe that the material is sensitive.

Question 6

For indictable-only cases or either-way cases that are to be sent to Crown Court, what schedules should be completed?

Answer 6

Schedules MG6C, MG6D, and MG6E, to facilitate service of the MG6C with the prosecution case, wherever possible.

Question 7

How should items of material be listed and described on a schedule? (4 Points)

Answer 7

1) They should be listed SEPARATELY, though in some enquiries it may not be practicable to list each item of material separately, if for example there are many items of a similar or repetitive nature. In this case they such items may be listed in a block and described by quantity and generic title.
2) They should be NUMBERED CONSECUTIVELY.
3) They should be described in such a way that makes the nature of the item clear and contains sufficient detail to enable the prosecutor to decide whether they need to inspect the material before deciding whether or not it should be disclosed.
4) If any material is listed in a block, the Disclosure Officer must ensure that any items within it that might satify the test for prosecution disclosure are listed and described individually.

Question 8

If the accused is charged with a summary only offence, or an either-way offence that is likely to remain in Magistrates’ Court…

…and there is any sensitive unused material, documentation should be completed?

Answer 8

The officer should complete a sensitive material schedule (MG6D or similar) and attach it to the prosecution file.

In exceptional circumtances, when its existence is so sensitive that it cannot be listed, it should be revealed to the prosecutor separately.

Question 9

For indictable-only cases or either-way cases that are to be sent to Crown Court…

1) …where there is any material believed to be sensitive, what documentation should be completed?
2) What is the exception to this and how is it dealt with?

Answer 9

1) A Schedule of Sensitive Material (M6GD).
2) In exceptional circumtances, when its existence is so sensitive that it cannot be listed, it should be revealed to the prosecutor separately.

Question 10

What is the test as to whether material is considered SENSITIVE or not?

Answer 10

Any material for which it is believed if disclosed would give rise to a real risk of serious prejudice to an important public interest.

Question 11

For indictable-only cases or either-way cases that are to be sent to Crown Court…

…where there is NO material believed to be sensitive, what must the Disclosure Officer do?

Answer 11

The Disclosure Officer must record this fact on a Schedule of Sensitive Material.

Question 12

What must be listed on a SENSITIVE Material Schedule along with the descriptions of each item?

Answer 12

The reason the officer believes that disclosure of the item would give rise to a real risk of serious prejudice to an important public interest.

Question 13

List some examples of material that could be considered SENSITIVE? (13 Points)

Answer 13

Material…

1) …relating to national security.
2) …received from the intelligence and security agencies.
3) …relating to intelligence from foreign sources that reveals sensitive gatherin methods.
4) …given in confidence.
5) …relating to the identity or activities of informants, undercover police officers, witnesses, or anyone else supplying information to the police who may be in danger if their identity is revealed.
6) …revealing the location of any premises or other place used for police surveillance, or the identity of any person allowing a police officer to use them for surveillance.
7) …revealing, directly or indirectly, techniques and methods relied on by a police officer in the case of an investigation or in detecting crime, e.g. covert surveillance techniques.
8) …whose disclosure might facilitate the commission of other offences, or hinder the prevention and detection of crime.
9) …upon the strength of which warrants were obtained.
10) …containing details of people taking part in ID Parades.
11) …supplied to an investigator during an investigation generated by an official of a body concerned with the regulation or supervision of bodies corporate or of persons engaged in financial activities, or which has been generated by a person retained by such a body
12) …supplied to an investigator during an investigationrelating to a child or young person which has been generated by a LA Social Services departmen, an Area Child Protection Committee, or other party contacted by an investigator suring the investigation.
13) …relating to the private life of a witness.

Question 14

In which circumstances would material be considered so sensitive that it should not be listed on the sensitive unused material schedule? (2 Points)

Answer 14

ONLY where compromising the material would be LIKELY to :

1) Lead DIRECTLY to the loss of life.

or

2) DIRECTLY threaten National Security.

Question 15

1) In circumstances in which material is considered so sensitive that it should not be listed on the sensitive unused material schedule, who does the responsibility for informing the prosecutor lie with?
2) When should this happen?
3) What should also be ensured?

Answer 15

1) The investigator who knows the details of the sensitive material.
2) ASA Reasonably (Pr) after the file containing the prosecution case is sent to the prosecutor.
3) That the prosecutor is able to inspect the material in order to assess whether it is disclosable, and if so, whether it needs to be brought before a court for a ruling on disclosure.

Question 16

Is the Disclosure Officer required to know what material exists and what material has already been disclosed to the defence?

Answer 16

Yes.

There is corporate knowledge implied by the possession of the relevant information that falls to be disclosed by any arm of the prosecution, the courts will expect the disclosure officer to be aware of any material held or inspected by other officers in the case.

Question 17

Would surveillance logs concerning another matter than was not relevant to the prosecution in question need to be disclosed? R v Dennis [2000]

Answer 17

Obviously not.

Question 18

Who decides in which format material is to be disclosed to the defence?

Answer 18

The prosecutor.

Question 19

If material to be disclosed is to be copied, should this be done by the prosecutor or the police?

Answer 19

Either.

Question 20

As a part of initial disclosure, the prosecutor must provide the defence with a schedule of all unused non-sensitive material. What counts as unused material?

Answer 20

Any information in police possession

or that has been examined by the police.

Question 21

Are the stage of initial disclosure, are the defence entitled to inspect items on the schedule of non-sensitive unused material that has not been disclosed?

Answer 21

No.

Question 22

Is material whose disclosure is prohibited by Section 17 of RIPA 2000 disclosable?

Answer 22

No, unless it falls within the exception provided in Section 18 of RIPA 2000.

Question 23

List 7 things that should be considered for initial disclosure, that is, where their disclosure would be in the public interest (i.e. NOT sensitive material).

Answer 23

1) Records of any previous convictions and cautions for prosecution witnesses.
2) Any possible motives for a prosecution witness making false allegations.
3) The fact that a witness has sought, been offered, or received a reward.
4) Any other material that casts doubt on the reliability or credibility of a prosecution witness.
5) Any material that may have a bearing on the admissibility or accuracy of any of the prosecution’s evidence.
6) Any information that might cast doubt on the reliability of a confession, for example, anything relevant relating to the defendant’s mental or physical health, intellectual capacity, or any ill-treatment suffered in custody, etc.
7) Any information that a person other than the accused may have been responsible or involved.

Question 24

What is the prosecutor required to advise the Disclosure Officer of regarding the MG6C and MG6D? (5 Points)

Answer 24

1) Of any items that are on the MG6C (Non-Sensitive Unused) that should be on the MG6D (Sensitive Unused), and vice versa.
2) Any apparent omissions.
3) Any amendments required.
4) Any insufficient or unclear descriptions of items.
5) Where there is a failure to provide schedules at all.

Question 25

If disclosure schedules are inadequate, what will the prosecutor do?

Answer 25

Return them to the police with a target date for resubmission.

Question 26

What would happen if a prosecutor had returned inadequate disclosure schedules to the police to resubmit, and the necessary remedial action was not taken in time?

Answer 26

The matter may be raised with a senior officer.

Question 27

If the disclosure schedules need to be edited in order to be kept up to date, whose responsibility is it to do this, according to the CPS Disclosure Manual?

Answer 27

The Disclosure Officer’s.

Question 28

Is the disclosure of relevant evidence to the defence an absolute right?

Answer 28

Van Mechelen v Nederlands [1998]

No.

Question 29

What is the general principal regarding disclosure that governs CPIA 1996 and Article 6 of the ECHR?

Answer 29

That material should not be witheld from the defence, unless it is ‘sensitive’.

Question 30

In Van Mechelen v Nederlands [1998] it was held that in some cases certain evidence may need to be withheld from the defene so as to preserve the fundamental rights of another human being, or to safeguard an important public interest. What is the threshold for when measures restricting the rights of the defence are permissible under Article 6 of the ECHR?

Answer 30

When they are ‘strictly necessary’.

Question 31

COMPLETE the following statement:

In R v Keane [1994] Lord Taylor stated that the balance between the weight of the public interest in non-disclosure and the importance of disclosure to the defence should come down resoundingly on the side of the defence when, having regard to both, the disputed material might WHAT?

Answer 31

Prove a defendant’s innocence or avoid a miscarriage of justice.

Question 32

If material is considered to be sensitive, what should be done to prevent its disclosure?

Answer 32

1) A Public Interest Immunity (PII) application should be made.
2) If this fails, the material will either have to be disclosed, or, if the risks involved are considered too great, the case will have to be abandoned.
3) Before either disclosure or abandonment however, there MUST be a consultation between the CPS (Unit Head or above) and the police (ACC or above).

Question 33

Who can make a claim to PII to withhold material?

Answer 33

1) The prosecutor (on behalf of the police)…

…or in some cases:

2) The relevant minister
3) The AG
4) The party seeking to withhold the evidence, either on their own initiative, or at the request of the relevant government department.

Question 34

Where an application is made to withhold material, a prosecutor should still aim to disclose as much of it as they properly can. How?

Answer 34

By giving the defence redacted or edited copies of summaries.

Question 35

What must a court have to be satisfied of in order to grant Public Interest Immunity?

Answer 35

That the relevant material neither assists the defence nor undermines the prosecution.

Question 36

If material is related to secret or confidential systems, should it be revealed?

Answer 36

No - this would aid serious criminal enterprise in the future. R v Templar [2003]

Question 37

What must happen when police consider material should not be disclosed due to its being sensitive?

Answer 37

A consultation should take place at a senior level and a senior officer who may be independent of the investigation should be involved.

Question 38

What should a consultation at a senior level regarding possibly sensitive material cover? (6 Points)

Answer 38

1) The reasons the material is considered sensitive.
2) The degree of sensitivity.
3) The possible consequences of revealing either the material itself, the category it falls into, or the fact a PII application is being made regarding it.
4) The apparent significance of the material to the issues in the trial.
5) The involvement of any thrid parties in brining the material to the attention of thepolice.
6) Where the material is likely ro be the subject of an order for disclosure, what the police views are regarding continuing the prosecution.

Question 39

Who signs a submission to the court regarding sensitive material in an application for PII?

Answer 39

The prosecutor and the senior officer involved in the consultation regarding it.

Question 40

Where there is an application for PII, what does the CPS have the obligation to ensure regarding the location of the relevant material?

Answer 40

That all such material is in its possession.
The police have the duty to pass it on.
R v Menga and Marshalleck [1998]

Question 41

If sensitive material subject to a PII order for non-disclosure is inadvertently disclosed by the prosecution to lawyers for the defence, can those lawyers be ordered not to further disseminate that material to any third party?

Answer 41

No, so care must be taken to keep sensitive material separate and to safeguard it to prevent this.

R v G [2004]

Question 42

Would there be a duty on the prosecution to disclose to the defence/seek a ruling regarding disclosure r.e. the fact that the defendant was a police informant?

Answer 42

R v Denton [2002]
No, because on any common sense view this material is already known to the defendant, so even where the accused alleges that their police handlers had told them not to tell their lawyers about being an informant, there would have been no duty on the Crown to supply this information to the defence.

Question 43

If an informant is involved in a case:

1) What two factors need to be balanced in rulings on disclosure?
2) In what circumstances will disclosure be necessary?
3) What is the only alternative if sensitive material passes the disclosure test?

Answer 43

1) The defendant’s right to a fair trial and the public interest in protecting the ID of an informant.
2) Where material assists the defence or undermines the prosecution case.
3) Drop the case.

Question 44

1) If one of the witnesses in a case was being recruited as an informant by the police, and the witness was willing to give information in exchange for not receiving any extra custodial sentence with respect to offences charged, should this be made available to the jury in order to assess the credibility of a witness?
2) If this information was withheld, and it is determined that with full and proper disclosure this would not have changed the landscape of the trial or the jury’s deliberations, would the verdict given in the case be safe?

Answer 44

R v Edwards (formerly Steadman) [2012]

1) Yes.
2) Yes.

Question 45

If an informant who has participated in a crime is called to give evidence at trial, should this be disclosed?

Answer 45

R v Patel [2001]

There would have to be very good reasons NOT to disclose this.

Question 46

If recordings and the statement of an undercover police officer show that the officer went beyond their authorisation, and evidence their being an enthusiastic supporter of criminal activity, as well as supporting the defence claim that their intended activities were directed to the saving of life and avoidance of injury, would these be disclosable?

Answer 46

R v Barkshire [2011]

Yes. This material would be pertinent to a potential submission of abuse of process by way of entrapment and regardless had the abiloty to support the defence.

Question 47

What was the ruling in R v Johnson [1988] regarding the the location of observation posts where the defence applies for these to be disclosed so that they may test what could be seen from them?

Answer 47

If this is to protect the owner or occupier of the premises used (and NOT the identity of the post itself) the exact location need not be revealed.

The difficulty of obtaining assistance from the public, and the desire of the occupants that their names and addresses not be used would both be relevant evidence.

Question 48

What guidance was given in R v Johnson [1988] as to the minimum evidential requirements if disclosure is to be protected? (4 Points)

Answer 48

1) The officer in charge of the observations should not usually be below the rank of sergeant.
2) The officer in charge must be able to testify that beforehad they visited all the observation points to be used and ascertained the attitude of the occupiers of any premises to them being used, as well as to any possible related disclosures afterwards.
3) The officer in charge may inform the court of any difficulties usually encountered in the locality in obtaining assistance from the public.
4) An officer of rank chief inspector or above must be able to testify that immediately prior to the trial they visited the places used for observations, and ascertained whether the occupiers are the same as when the observations took place, and regardless, what their attitude is to the possible disclosure of the use made of the premises and any other facts that may lead to its or their identification.

Question 49

Is a threat of violence required before protection can be afforded to the occupier of an observation post under the R v Johnson [1988] guidelines?

Answer 49

Blake v DPP [1993]

No. That the occupier is in fear of harassment is enough.

Question 50

Is an application to exclude material from disclosure made in the presence of the jury?

Answer 50

No, obviously not!

Question 51

If officers have witnessed an offence as park of surveillance from an unmarked police vehicle, should information relating to the surveillance and the colour, make, and model of the vehicle be withheld?

Answer 51

R v Brown and Daley [1988]

No.

Question 52

NGAP Cases - Magistrates’ Court

If a not-guilty plea is anticipated for hearing in hte Magistrates’ Court, when MUST the disclosure officer give the Streamlines Disclosure Certifiate to the prosecutor?

Answer 52

At the same time as the file containing the material for the prosecution case is given.

Question 53

In cases sent to the Crown court, when should the disclosure officer give the schedules containing unused material to the prosecutor?

Answer 53

Wherever possible, at the same time as the prosecution file, in preparation for the first hearing and any case management the judge may wish to conduct at that stage.

Question 54

1) What unused material MUST be disclosed to the defence at Common Law, for service on the defence with the Initial Details of the Prosecution Case?
2) Give two examples of this type of evidence.

Answer 54

1) Under the Common Law duty set out in R v DPP ex parte Lee [1999]:

Any material that may assist the defence at BAIL HEARINGS or in the EARLY PREPARATION of their case, if it exists.

2) Any relevant previous convictions of a key prosecution witness, or a witness withdrawing their statement / support for the prosecution.

Question 55

What may happen when a police investigation has been intelligence-led?

Answer 55

There may be a Deputy Disclosure Officer appointed just to deal with intelligence material, which by its nature is likely to be sensitive.

Question 56

Where there are a number of Disclosure Officers assigned to a case, what should be put in place too?
(2 Points)

Answer 56

1) A Lead Disclosure Officer should be designated as the focus for all enquiries, whose responsibility shall be to ensure the investigator’s disclosure obligations are complied with.
2) Where appropriate, regular case conferences and other meetings sould be held to ensure prosecutors are apprised of all relevant developments, and full records should be kept of such meetings.

Question 57

Where material is available to police from a third party such as a LA, if a decision is made that some of the material is relevant, does all of the material need to be disclosed?

Answer 57

R v Abbott [2003]

No. The defendant is not entitled to blanket disclosure of all the files.

Question 58

Is there a specific set time period by which initial disclosure must be met?

Answer 58

No, so it should be made ASA(Pr) after the duty arises.