Criminal Disclosure Flashcards
Co-operation is required between who in order to ensure the disclosure system operates efficiently and effectively.
The Disclosure Manager, other investigation team members and Crown Solicitors.
Disclosure Managers should be guided by these principles:
- All relevant material contained on an investigation file is discoverable, unless withholding or deletion of the material is justified under sections 16, 17 or 18 of the CDA.
- There is no obligation to acquire, for the purpose of satisfying disclosure obligations, material that is not already in police possession or control, or that is not held in recorded form. Sec 15 of the CDA.
- Disclosure is an on-going process and the reasons for withholding a document should be continually reassessed. In the event that the justification withholding no longer exists, the material should be provided to defence counsel.
- The disclosure process must be auditable, accountable and record disclosure decisions that are made in relation to a particular document.
- Effective file management systems are critical to the success of the disclosure process.
The role of Disclosure Manager requires a working knowledge of what act?
The Criminal Disclosure Act 2008.
Initial actions, on appointment to the role, the Disclosure Manager must:
- Read the Disclosure Manager’s desk file.
- Report to the 2IC to receive a briefing, tasking, establishing what information is and is not discoverable, and ongoing supervision.
Key responsibilities. The Disclosure Manager must:
- Ensure all relevant and discoverable material is provided to defence counsel.
- Ensure all relevant and non-discoverable material is identified, listed and defence advised.
- Continually assess the risk to ensure that non-discoverable material is identified and not disclosed.
- Continually review to ensure that ongoing lawful justification to withhold exists for each document that is withheld.
- Ensure that robust auditable systems are employed to record disclosure decisions and actions.
- Manage disclosure time-frames within the provisions of the Act, or as otherwise directed by the Courts.
- Retain and file all correspondence with defence counsel, both incoming and outgoing,
- Record disclosure in NIA (IMT does this automatically).
All communication with defence counsel should be conducted through…
The 2IC, or Crown Solicitor, where engaged.
What is Police’s obligation where legal representation of the defendant is replaced?
To ensure the replacement counsel is provided with all material previously disclosed.
Confirm in writing they received from previous counsel it or redeliver.
The formats used to disclose documents to the defence are hard copy, electronic disclosure, or a combination of both.
The disclosure method selected will depend on the:
- Actual and anticipated scale of the investigation.
- Resources available to the Disclosure Manager.
- Technical ability of the Disclosure Manager.
- Investigation file being stored in electronic or hard copy format.
- Number of persons charged.
- Scale of the file/amount of material to be disclosed.
- Sensitivity of material.
- Defence counsel involved and any agreement reached for defence counsel to receive material in a particular format.
What does Section 10(4) of the Criminal Disclosure Act 2008 specify?
That disclosure may be supplied in whatever form, including electronically, that the person disclosing the information holds it in at the time of the request, provided this will be readily accessible to the defendant.
Is there a requirement for the prosecutor to supply defence counsel with a list of the material provided to defence?
No but it is good to.
IMT requires this.
Does the prosecutor need to provide defence with a list of documents they wish to withhold?
Yes.
IMT requires this.
What material relating to disclosure should be provided to the crown?
A copy of the redacted documents provided to defence as well as unredacted documents for them to review.
What do the four disclosure letters (Police Forms > Prosecutions) relate to?
- Initial disclosure.
- Further initial disclosure.
- Additional disclosure.
- Full disclosure.
Who is responsible for maintaining the disclosure index?
Disclosure Manager.
What information needs to be recorded about requests made by defence relating to disclosure?
The Disclosure Index must be maintained to record the dates and details of all requests made by defence counsel and the date the requests were responded to.
As a general principle, where two or more defendants are charged how is their disclosure prepared?
Generally speaking the material disclosed will be the same for each defendant.
However, IMT enables different levels of disclosure on a document for different defendants.
Who is ultimately responsible for managing disclosure decisions including whether the matter should be referred to a senior Police officer, Police Legal Services or the Crown Prosecutor for evaluation as to whether the document should be disclosed?
The 2IC Investigation.
The Disclosure Manager will identify documents that may need to be withheld or have deletions made to them and advise the 2IC.
Examples of documents that may require withholding?
- Search warrant applications.
- CHIS Information Reports.
- Analytical material.
- Operation Orders / briefing material.
- Conference notes.
- Notes in relation to covert investigative techniques.
- Surveillance device warrant (interception) applications.
- Material that is commercially sensitive.
- Material regarding alibi enquiries.
- Internal Police reports and instructions.
Are police obliged to provide disclosure regarding alibi enquiries?
No.
How are emails sent to or from the Crown Solicitor, Crown Law or Police Legal Section seen?
As privileged and should not be disclosed.
How should staff be briefed about their emails at the start of an investigation?
To save all emails relating to the investigation into a separate Outlook folder for later export for IMT.
Processing investigators’ emails is a time consuming process and defence counsel should be advised in writing at an early stage of the investigation of…
The existence of such e‑mails, and of the fact they have yet to be assessed to determine whether they meet the relevance test as discoverable material.
The rationale for applying sequential page numbers to disclosed material is:
- It facilitates effective auditing of disclosed material.
- The Court process is expedited because all parties including the Court, Jury, Crown Prosecutor and defence counsel can refer to material by a unique page reference.
- Any illegitimate claims made by defence counsel that particular material was not disclosed, can be promptly resolved by providing an exact copy of the numbered page that was disclosed and a reference page number.
- It enables accurate records to be maintained, even when different versions of the same document have been disclosed on separate occasions.
Other statutory provisions (ie. non CDA) contain specific grounds for withholding information.
These include:
- Section 16 Victims’ Rights Act 2002 - Restriction on disclosing victim’s contact details.
- Section 23 Victims’ Rights Act 2002 - Prohibition on providing copy of victim impact statement to offender to keep.
- Section 179 Search and Surveillance Act 2012 - Offence to disclose information acquired through search or surveillance.
- Section 20 Financial Transactions Reporting Act 1996 - Suspicious transaction reports not to be disclosed.
Some government departments have a specific statutory power to require you to provide the information sought.
These powers override the general prohibitions in the Privacy Act from disclosing personal information and include:
- Section 17 of the Tax Administration Act 1994
- Sections 274 and 275 of the Immigration Act 2009
- Section 161 of the Customs and Excise Act 1996
- Section 11 of the Social Security Act 1964
- Section 5 of the Serious Fraud Office Act 1990
- Section 66 of the Children, Young Persons, and Their Families Act 1989
- Section 62 of the Health and Disability Commissioner Act 1994.
CDA Sections:
Criminal Disclosure Act 2008.
Sec 15 - No obligation to acquire material for purpose of disclosure.
Sec 16 - Reasons for withholding information.
Sec 17 - Restrictions of disclosing address of witness or informant (also phone numbers and emails)
Sec 18 - Trade secrets may be withheld (also commercially sensitive information).
