Criminal Litigation - Evidence Disclosure (10) Flashcards
What is the initial duty of disclosure?
Initial Duty of Disclosure: Prosecution must serve defence with all evidence relied upon to prove guilt prior to first hearing.
What is the disclosure of unused materials?
Disclosure of Unused Materials: Prosecution must also serve the Defendant with relevant unused material if the Defendant pleads not guilty at first hearing (s3).
(1) Relevant Unused Material: Material ‘reasonably capable’ of undermining prosecution or assisting defence.
(2) Service: Evidence must be served according to court directions, but the duty is ongoing thereafter (s7A).
(3) Missing Items: The Defendant can request items it believes to be missing in a defence statement.
>The Prosecution must respond in writing within 10 working days.
>The court can order specific disclosure of requested evidence (s8).
>The Prosecution must also consider whether further evidence is relevant due to unforeseen matters raised in a defence statement. They are under a duty to disclose this (s7A).
What are the rules for non-disclosure of sensitive materials?
Non-Disclosure of Sensitive Unused Materials: Prosecution can attempt to withhold unused ‘sensitive’ materials. This is known as ‘public interest immunity’.
(1) Sensitive Material: Material relating to: a) national security; b) CI/Undercover Officer identity; c) police techniques; or d) child witnesses.
(2) Court Order: The CPS must apply to have the material withheld, typically without notice (CrimPR 15).
>The court can indicate that material is withheld in response to a specific request in a Defence Statement.
What is the defence statement?
Defence Statement: Following IDPC, the Defendant may disclose evidence by defence case statement (s5A CPIA).
(1) Magistrates’ Court: Defence statement is optional (used rarely, to prompt disclosure of unused materials).
Service: Served within 10 working days of unused materials disclosure.
(2) Crown Court: Defence statement is compulsory (s5 CPIA Regs 2011). Service: Served within 20 working days of unused materials disclosure.
(3) Extension: Complex cases may be granted permission of court to extend service of defence statement.
What are the contents of the defence statement?
Contents: Defence statements must contain the following contents in writing (s6A CPIA).
(1) Defence: The nature of any defences relied upon.
>This includes alibis (which merely means being elsewhere - need not be supported by a witness).
(2) Facts: Facts in dispute, and facts relied upon for any defence or explanation.
(3) Law: Law and legal authorities relied upon (including issues of admissibility).
(4) Alibi: The name, address, and date of birth of any alibi witness relied upon (or as many details as are known).
What duties does the defendant have?
Duties on Defendant: Defendants are subject to a number of duties.
(1) Duty to Update: Defendants must update the statement whenever information arises or changes (s6B).
(2) Duty to Approve: Defendants must approve of their statements (s6E).
>Implied unless proved otherwise. In practice, a record of express approval is prudent.
What faults of the defence statement can adverse inferences be drawn for?
Adverse Inferences: Adverse inferences may be drawn in the Crown Court from faults in the statement (s11).
(1) Faults: No or late service, incomplete details, inconsistent evidence, or a failure to update.
(2) Inference: Court (or party with leave of court) is entitled to make comments or draw inferences as appropriate.
What is notice of witness evidence?
Notice of Witness Evidence: The Defendant must serve notice of witness evidence, both in person evidence and statements relied upon (alongside any relevant defence statement and Part 20 Hearsay Notices).
What are the rules of notice of witness evidence for in person witnesses?
In Person Witnesses: Details of in person witnesses must be served on the prosecution (s6C).
(1) Contents: Names, addresses, date of birth.
>Not the contents of their evidence, unless expert.
(2) Service: Must be served within 20 working days of unused materials disclosure.
(3) Adverse Inferences: Courts can draw adverse inferences from improper compliance (s11).
(4) CPS Research: The CPS can use the information to conduct research, including police interviews (s21A).
What are the rules of notice of witness evidence for statements relied upon?
Statements Relied Upon: Admissible witness statements may be served on the prosecution if the witness is not attending trial (s9 CJA 1967).
(1) Admissibility: This is not the same as Part 20 Hearsay. It is a statement containing evidence which is not in dispute, which could be admissible in oral evidence (i.e. a doctor’s report on a drug overdose, if undisputed).
(2) Service: Statement must be signed and dated, and served on all parties in the same service times as above.
‘This statement (consisting of [1] page signed by me) is true to the best of my knowledge and belief and I make it knowing that if it is tendered in evidence I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true.’
(3) Objections: Opposition can object within 7 days of trial.
