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Criminal Litigation > Criminal Documentation > Flashcards

Criminal Documentation Flashcards

1
Q

In the Crown Court, when should initial disclosure occur?

A

Before the Pre-Trial Preparation Hearing. A MG6C schedule must be completed.

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2
Q

In the Magistrates’, when should the schedule be disclosed? (edit: what schedule?)

A

At the plea hearing, or as soon as possible following the defendant’s indication of plea.

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3
Q

What is the time-limit for defence statement disclosure?

A

14 days from the initial prosecution disclosure.

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4
Q

What is the time-limit for witness statement disclosure?

A

14 days from initial disclosure in Mags.

28 days from initial disclosure in the Crown Court.

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5
Q

TRUE of FALSE. You can call a witness even if you didn’t give notice of them?

A

TRUE, but the court may draw adverse inferences.

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6
Q

What are the general requirements of CPR Part 15 for ordering disclosure? (4 elements)

A

Say what you want disclosed;

Say why you think the opposition has it;

Say why it undermines or assists the case;

Say why a hearing may be necessary if the prosecution refuses.

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7
Q

Section 8 CIPA does what?

A

Allows the defendant to apply for document disclosure at the court.

They must give the prosecution notification of this.

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8
Q

What should you consider doing if a third party material-holder refuses to disclose?

A

Witness summons.

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9
Q

What are the considerations for a public interest non-disclosure ruling?

A

You apply the usual disclosure test.

Then ask if there is a risk of serious prejudice to an important public interest.

Then ask if the defendant’s interest can be protected without disclosure, or in a way that adequately protects the public interest.

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10
Q

When does Part 15 Criminal Procedural Rules apply?

A

15.1 - It applies in a magistrates’ court and in the crown court when part I and II of the Criminal Procedure and Investigations Act 1996 apply.

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11
Q

Rule 15.3 concerns a prosecutor’s application for a public interest ruling. Must the prosecutor apply in writing for such a decision?

A

Yes. Rule 15.3(2)(a).

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12
Q

Must a prosecutor serve their public interest application to the defendant?

A

Only if serving it to them would not disclose what the prosecutor thinks ought not to be disclosed. Rule 15.3(2)(b)(iii).

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13
Q

When would a prosecutor apply for a public interest ruling?

A

When the prosecutor would have to disclose material, but they want the court to decide whether it would be in the public interest to disclose it. Rule 15.3(1)(a)-(b).

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14
Q

Where the prosecutor serves only part of a public interest application on the defendant, they must…

A

Mark the parts that are only for the court and explain why they have withheld it from the defendant. Rule 15.3(4)

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15
Q

Must public interest hearings be held in private? Must the defendant be present?

A

Private, unless the court otherwise directs. Rule 15.3(6)(a).

The court may direct for it to occur in the defendant’s absence. (b)

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16
Q

Under 15.3(8), a court may only determine a public interest application if satisfied that it has been able to take adequate account of:

A

Rights of confidentiality

D’s right to a fair trial.

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17
Q

Rule 15.4 Defence Disclosure applies where:

A

D gives a defence statement or a defence witness notice.

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18
Q

A defendant can apply for prosecution disclosure under Rule 15.5 where:

A

They have served a defence statement under CPIA 1996 and they want the court to require the prosecutor to disclose material.

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19
Q

Rule 15.5(3)A defence prosecution disclosure request must include:

A

The material D wants the prosecutor to disclose.

An explanation as to why the defendant thinks there is reasonable cause to believe that P has the material, and CPIA requires P to disclose it.

A request for a hearing and why it is needed.

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20
Q

TRUE or FALSE. Defence applications for prosecution disclosure must be heard in private.

A

FALSE. They can be public or private, and indeed need not have a hearing at all!

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21
Q

The court must not require the prosecutor to disclose material unless:

A

P is present.

P has had at least 10 business days in which to make representations.

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22
Q

Can a public interest ruling be reviewed?

A

Yes. Under Rule 15.6 either the defendant or the Crown Court, on its own initiative, can do so.

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23
Q

What must a defendant state when applying to use disclosed material under Rule 15.7?

A

Specify exactly what they want to use or disclose.

Explain why.

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24
Q

The court must not permit the use of disclosed material unless:

A

The prosecutor has had at least 20 business days to make representations.

The court is satisfied that it has been able to take account of any rights of confidentiality that may apply to the material.

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25
Q

Section 17 Criminal Procedure and Investigations Act 1996 concerns:

A

Where a person is accused of using disclosed prosecution material in contravention of section 17 Criminal Procedure and Investigations Act 1996.

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26
Q

Where a criminal investigation began after 4th April 2005, sections 3 and &A of the 1996 ACT require the prosecutor to:

A

Disclose previously undisclosed material that may undermine their case/assist D.

In the Mags, this must be done as soon as reasonably practicable once D has pleaded NG.

In the CC, as soon as is reasonablty practicable after the case is committed or transferred for trial/after evidence is served/count added to indictment.

If no such material, give a written statemetn to D of such effect.

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27
Q

Must the defendant give a defence statement?

A

In the Crown Court, yes. Section 5 1996 Act.

In the Magistrates’, no. Section 6.

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28
Q

Must the defendant give defence witness notice indicating whether they intend to call any other witnesses?

A

Yes, under section 6C 1996 Act.

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29
Q

What are the times for service of a defence statement, as prescrbed by section 12 1996 Act?

A

Mags: 14 days after pros disclosure.

CC: 28 days after pros disclosure.

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30
Q

What must a defence statement set out under section 6A 1996 Act?

A

The nature of the defence including particular defences

Indicate any points of law D wishes to raise

The matters which the defence takes issue with, and why

Alibi details

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31
Q

When can a court draw adverse inferences in relation to defence disclosure, under section 11 1996 Act?

A

D fails to disclose what was required;

D fails to abide by time limits

D provides alibi evidence without necessary details

D relies on defences/facts not mentioned in statement

D calls a witness not identified in defence witness notice.

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32
Q

The statutory regime governing the disclosure of unused material and the defence case is governed by…

A

CPIA 1996
CPIA Code of Practice
CrimPR Part 15
Common law-rules

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33
Q

When does CPIA 1996 apply?

A

In summary, it is compulsory in cases sent to CC to be tried on indictment.

It may apply to summary trials, including those in the youth court.

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34
Q

Has the common law regime for disclosure been abandoned?

A

No. Circumstances may arise where a prosecutor is required to disclose material to the defence outside the scheme of the CPIA 1996.

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35
Q

The legislative regime under the CPIA envisages a staged approach to the disclosure of material:

A

(a) Police officers have a statutory duty to record and retain all information gained which may be relevant to their investigations.
(b) Relevant material which is not expected to form part of the prosecution case should be provided by the police to the prosecutor for review.
(c) Prosecution applies the statutory test under section 3 to that relevant material.
(d) The defence, in turn, has a duty to inform the prosecution of the case they intend to present at trial.
(e) The prosecution remains under a duty, throughout proceedings, to disclose material which meets the statutory test.
(f) Following service of the defence statement, an accused may make further applications for disclosure.

36
Q

The disclosure provisions of Part I CPIA 1996 apply to any alleged offence for which a criminal investigation began on or after…

A

1 April 1997.

37
Q

CPIA Code para 2.1 defines a criminal investigation as…

A

“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.”

38
Q

Define an ‘investigator’ under CPIA Code.

A

Any police officer involved in the conduct of a criminal investigation.

39
Q

Define a ‘disclosure officer’ under CPIA Code.

A

The police officer responsible for examining material retained by the police during the investigation and for revealing material to the prosecutor.

40
Q

Define the ‘officer in charge of an investigation’

A

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.

41
Q

What amounts to material that is ‘relevant to an investigation’?

A

Material that appears to an investigator or disclosure officer to have some bearing on an offence under investigation or any person being investigated, or on the surrounding circumstances of the case.

42
Q

What are examples of material that counts as relevant material to retain?

A

Crime reports

Report books/police officer noticebooks

Final and draft versions of witness statements (where they differ)

Interview records

Expert reports

Material which casts doubt on a confession or witness reliability

43
Q

Does the duty to retain extend to ancillary items, such as duplicates of documents?

A

No.

44
Q

What is the MG6C form?

A

A schedule on a form which lists all retained material which does not form part of the prosecution case.

45
Q

When is a MG6C form to be used?

A

In Crown Court cases.

In Mags cases where D will likely plead NG, a streamlined disclosure certificate is to be prepared instead.

46
Q

Define ‘sensitive material’

A

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.

47
Q

Examples of sensitive material:

A

Matters relating to national security

Material relating to informations, undercover officers, police surveillance premises, crime detection techniques.

48
Q

Prosecutors must do all that they can to facilitate proper disclosure. What does this entail?

A

Probing actions taken by disclosure officers

Reviewing schedules

Taking action to correct/improve schedules

49
Q

R [2015] EWCA Crim 1941 identified five broad propositions for cases involving large quantities of digital material:

A

The prosecution are in the driving seat at the stage of primary disclosure.

The prosecution must encourage dialogue and prompt engagement with the defence.

The law is prescriptive of the result of disclosure, not the method by which the process should operate.

The process should be subject to robust case management by the judge, utilising the full range of case management powers.

Flexibility is crucial.

50
Q

Are ‘dip sampling’ and search tool use by the prosecution acceptable for satisfying the disclosure obligation for cases with large levels of digital material?

A

Yes, although disclosure of the exact methodology used is important.

51
Q

TRUE or FALSE. Disclosure is never required prior to the statutory duty materialising.

A

Under common law and the AG guidelines, investigators and prosecutors must sometimes disclose material after proceedings commence but before the statutory duties arise.

Key example: CPIA Code requires disclosure of material that may assist the defence with the early preparation of its case, or at bail hearing.

52
Q

What are examples of circumstances where it would be helpful to the defence to know of unused material at an earlier stage than in the statute?

A

When previous convictions of the alleged victim may help D’s bail application.

Material to help an application to stay proceedings for abuse of process.

Material that help D prepare for trial (e.g. eye witnesses that P does not intend to use)

53
Q

Section 3 requires a prosecutor to disclose previously undisclosed material to the accused if it:

A

“might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused.”

54
Q

If there is no disclosable material, what must the prosecution do?

A

Provide the defendant with a written statement to that effect.

55
Q

The AG’s Guidelines sets out some factors for prosecution to consider in deciding whether the s3 test is met for initial disclosure. They are:

A

The use that may be made of the material in cross-examination.

Its capacity to support submissions leading to exclusion of evidence, a stay of proceedings, or a finding that nay public authority had acted incompatibly with D’s rights under ECHR

Its capacity to explain D’s actions.

Its bearing on scientific/medical evidence in the case.

56
Q

For large and complex cases in the Crown Court, what else must be done by the prosecutors?

A

A clear investigation and prosecution policy must be devised.

The approach to disclosure must be set out in a Disclosure Management Document, tailored to the individual case: dealing with

  • Pros approach to disclosure;
  • Deal with digital, video and third-party material;
  • Reasonable lines of inquiry;
  • Their understanding of defence case.
57
Q

If it is not practicable or desirable for the prosecution to give a copy of relevant material to the defence, what must they do?

A

Allow the accused to inspect it at a reasonable time or place, ensuring it is secure enough to do so. Section 3(3)(b) CPIA 1996.

58
Q

What does section 4 CPIA ‘Service of Schedule’ entail?

A

Where P has been given a schedule of unused material by a polie officer, he must serve that schedule on the accused when he makes disclosure of unused material under section 3.

59
Q

Does the prosecution’s disclosure obligations apply in summary trials?

A

Yes, where D pleads not guilty.

The CPIA Code provides for streamlined document disclosure.

60
Q

Is there a statutory time limit for disclosure of unused material in the Crown Court?

A

No.

61
Q

What is the default position for when disclosure should be made, as per section 13(1) CPIA, in Crown Court cases?

A

“As soon as reasonably practicable after the happening of a particular event, such as service of the prosecution case.”

62
Q

When should disclosure be made in Magistrates’ court cases?

A

Where a streamlined disclosure document is required, it must be disclosed to the accused either at the hearing at which a not guilty plea is entered, or as soon as possible following a formal indication from the accused that a not guilty plea will be entered.

63
Q

Section 7A CPIA concerns…?

A

A prosecutor’s continuing duty to review.

64
Q

When is the continuing duty of disclosure most likely to crystallise?

A

Either on service of the defence statement or during the trial itself as the issues develop.

65
Q

When do the statutory duties of disclosure terminate?

A

With a conviction, acquittal or discontinuation of the proceedings.

66
Q

Are there any disclosure duties between conviction and sentencing?

A

Yes, common law duties of disclosure. A duty remains to disclose any material which may be relevant to sentence, such as information which might assist in placing D’s role in the correct context vis-a-vis other offenders.

67
Q

Do any disclosure obligations remain after proceedings are complete?

A

Yes, prosecution remains under a common law duty to consider the disclosure of any material which might cast doubt on the safety of conviction and to make disclosure of such material unless there is a good reason not to.

68
Q

Can the defence apply for disclosure from the prosecution?

A

Yes, under section 8 CPIA, D can apply for disclosure of material which should have been disclosed under section 7A (the continuing duty).

69
Q

A defence statement must cover the following areas (section 6A CPIA)

A

The nature of the accused’s defence, including any particular defences upon which the accused intends to rely.

The matters of fact on which the accused takes issue with the prosecution, with the reasons why.

Particulars of the matters of fact on which the accused intends to rely for the purposes of the defence.

Any points of law which the accused wishes to take, with any authorities relied upon.

In short: REVEAL THE CASE WHICH WILL BE PRESENTED AT TRIAL.

70
Q

Is a general denial of the counts in the indictment adequate for a defence statement.

A

No! Unless the defence is not raising any positive points and simply challenges the Crown to positively prove its case, but even so this must be made clear.

71
Q

If a defence statement discloses an alibi, what particualrs must be provided under section 6A(2) CPIA?

A

Name
Address
DoB

of any alibi whom D intends to call.
Must be included in the defence statement.

If D doesn’t know these details, he must give any information which could assist in finding it out.

72
Q

What information must D provide in relation to witnesses they intend to call at trial, under section 6C CPIA?

A

Names
Address
DoB
Other identifying information.

73
Q

How long is notice of intention to call a witness in both the Mags and the Crown Court?

A

14 days for summary proceedings.

28 days (for CC) from the date when prosecutor complies with duty to disclose under s.3

74
Q

Is there an obligation to provide a defence statement in all cases?

A

No. No obligation in cases tried summarily.

75
Q

What can a defendant not do in a summary trial if they do not provide a defence statement?

A

They cannot make an application for specific disclosure, nor can the court make any such orders. (see 8(1))

76
Q

How long does a defendant have to provide a defence statement in the Magistrates?

A

14 days from prosecution disclosure.

77
Q

How long does a defendant have to provide a defence statement in the Crown Court?

A

28 days from prosecution initial disclosure. CPIA Regulations Regs 2 and 3.

There may be some instances where an extension request is well-founded.

78
Q

Under section 11 CPIA, courts can comment upon or draw adverse inferences from failures of the Defendant to do the following:

A

Fail to give an initial defence statement

gives the defence statement late

Fail to provide an updated statement (not yet in force though)

Sets out inconsistent defence

Puts forward a defence not mentioned in statement

Gives alibi evidence without providing details

Call a witness not identified in the notice

79
Q

TRUE or FALSE. The court can punish by way of contempt of court for failure to abide by section 11 CPIA requirements.

A

FALSE. The only appropriate sanction in those instances is adverse comment/draw inferences as may be proper.

80
Q

When might the public interest immunity be applied?

A

Where material cannot be disclosed without the risk of prejudice to an important public interest.

81
Q

What is a sensitive schedule?

A

A list of materials which, in due course, might be made the subject of a public interest immunity application.

82
Q

With regards to a sensitive schedule, what must investigators specify?

A

Why the material is sensitive?
The degree of sensitivity
The consequences of revealing it
The significance of the material to the issues in the trial
Involvement of third parties in bringing it to police attention
Can it be disclosed without compromising sensitivity?

83
Q

What must be done if an investigation reveals the existence of material held by a third party which may be relevant to the investigation, but it is not obtained?

A

The third party must be informed of the investigation and invited to retain the material in case there is a later need for disclosure.

84
Q

How is third-party material disclosure secured if not volunteered?

A

Through the issuing of a witness summons.

85
Q

Is Proof of Evidence served to the prosecution?

A

No

86
Q

Are defence witness statements served to the prosecution?

A

No

Criminal Litigation (18 decks)

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