8) Subsequent Action by the Disclosure Officer Flashcards
When does the duty on the defence to make defence disclosure arise?
ONLY AFTER the prosecution has made their initial disclosure.
What is the disclosure required by the defence limited to?
Material they intend to use at trial.
What should the defence statement include?
1) The nature of the accused’s SPECIFIC DEFENCE.
2) Particulars of the matters of FACT on which the defence intends to rely.
3) A factual NARRATIVE of their case.
4) The issues the accused DISPUTES with the prosecution, with REASONS.
[The reasons are to prevent ‘fishing expeditions’ by the defence]
5) Any POINT of LAW the defence wishes to raise, e.g. going to the admissibility of evidence or abuse of process, and the authority on which they intend to rely for that purpose.
6) Where the defence involves an alibi, details of the ALIBI, including the name and address of any alibi witnesses, or as many of such details as known. Where details are not known, any information in the defendant’s possession that might be of material assisstance in identifying or locating the alibi witness.
NOTE: There is no duty to disclose this to any co-accused, though this may be done voluntarily.
7) Notice of any witnesses called to give evidence other than the defendant, as well as their names, addresses, and DOBs, or as many of such details as known. Where details are not known, any information known to the defence that might be of material assisstance in identifying or locating the witness.
May a defence statement be used in cross-examination?
2 Points
R v Lowe [2003]
There may be occasions when this will be possible:
1) When it is alleged that the defendant has changed their defence, or
2) In re-examination to rebut a suggestion of recent invention.
If an investigator wishes to interview a witness identified by the defence, what must they be informed?
(4 Points)
1) That the reason they are being asked for an interview is due to their being identified by the defence as a proposed witness.
2) That they are not required to attend the proposed interview.
3) That they are entitled to be accompanied by a solicitor, but there is no duty on the Legal Services commission to provide funding for one.
4) That a record will be made of the interview, and a copy of it will be sent to them subsequently.
If a proposed witness identified by the defence consents to being interviewed by the investigator, what MUST they be asked?
(3 Points)
1) Whether they wish to have a solicitor present.
2) Whether they consent to having a solicitor present on the behalf of the accused, as an observer.
3) Whether they consent to a copy being sent to the accused, and if not, they should be informed of the requirements in criminal proceedings that may necessitate the prosecution’s disclose of the record to the accused or any co-accused in the course of proceedings.
If a witness proposed by the defence consents to being interviewed, what MUST the investigator notify the accused or their legal representative of?
(3 Points)
1) That the investigator requested an interview.
2) Whether or not the witness consented.
3) If they did, whether they consented to having a solicitor present on the behalf of the accused, as an observer.
What should happen if the accused is not legally represented in proceedings and a proposed defence witness who has consented to being interviewed by the investigator also consents to having a solicitor present on the behalf of the accused, as an observer?
The accused must be offered, a reasonable time before the interview is to be held, an opportunity to appoint a solicitor to attend it.
What must be ensured regarding the investigator conducting an interview with a witness proposed by the defence?
(3 Points)
1) Their identity must be recorded.
2) They must have sufficient skills and authority, commensurate with the complexity of the investigation, to discharge their duties effectively.
3) They must NOT conduct the investigation if it would be LIKELY to result in a conflict of interest, for example if that person is the victim of the alleged crime.
What should happen if there is any doubt as to Whether a conflict of interest precludes an individual from interviewing a proposed defence witness?
The advice of a more senior officer MUST be sought, and if any doubt remains, the advice of a prosecutor MUST be sought.
Is an interview with a proposed defence witness allowed to continue if, after their consenting to the presence of the accused’s solicitor, and the solicitor having being given reasonable notice of its date, time, and place, they does not attend?
Yes.
May a proposed defence witness withdraw their consent to the presence of the accused’s solicitor in an interview with the investigator?
Yes, at ANY time.
Must the record made of an interview with a proposed defence witness be an audio recording?
No, it can be any of the following:
1) Audio recording
2) Video recording with sound
3) In writing, made and completed during the interview, unless impracticable or it would interfere with the conduct of the interview, in which case ASA(Pr) afterwards.
The written record must be either verbatim, or failing this, an account that adequately and accurately summarises it.
If material has been copied to the prosecutor and is to be disclosed, who should disclose it - the prosecutor or the Disclosure Officer?
Either - it will be a matter of agreement between the two.
How must the Disclosure Officer disclose material to the accused?
either by giving them a copy or by allowing them to inspect it.
