Disclosure

Question 1

Failure to comply

Answer 1

Prosecution and defence must both comply with CPIA 1996 act which sets out rules on disclosure.
If defence do not disclose, the court or jury may draw inferences.
If prosecution do not disclose, the court could say there has been an abuse of process. It could also lead to action for damages under art 6 ECHR - right to a fair trial.
If prosecution have not made a disclosure on time or fully, case may be ‘stayed’ or adjourned but if there is other credible evidence to justify conviction then it may continue.
Failure to disclose may result in convictions being overturned if it is later found out the prosecution failed to disclose something that the case relied on.
Level of disclosure is a question of fact in each case.

Question 2

Disclosing initial details of the prosecution case

Answer 2

This is material that the defence are entitled to have in order to consider whether to plead guilty or not guilty.
Defence want to know the strength of the case to decide what to plead as opposed to pleading on whether D actually committed the crime.
It is in the public interest that guilty pleas are entered as soon as possible so its important advanced information is provided to defence.
All Ds should have received copies of any initial details of the prosecution case.
This complies with art 6 that D must be informed promptly and in detail of nature and cause of accusation and have adequate time for preparation of his defence.

Question 3

Prosecution obligations regarding disclosing initial details

Answer 3

If case can be tried at Magistrates - prosecutor must provide initial details to the court and D as soon as practicable and no later that the beginning of the day of the first hearing.
Must include at minimum:
Summary of circumstances
Ds criminal record
But also helpful:
Ds account given in interview
Witness statement
Exhibits
Victim personal statement
If case has to be tried at Crown - defence will get the majority of prosecution case through disclosure of witness statements or depositions.
In certain cases, other material may also be needed e.g. custody record, first description etc.
Disclosing - given a copy or allowed to inspect the document or a copy of it

Question 4

CPIA 1996 aims

Answer 4

Disclosure rules in CPIA make sure D gets a fair trial and speeds up the trial process.
Initial duty on prosecution to disclose with a continuing duty to disclose until D is acquitted or convicted or prosecutor agrees not to continue with the case.

Question 5

Evidence

Answer 5

Exhibits or statements that form part of the case against D

Question 6

Unused material

Answer 6

All other material that does not fall under evidence

E.g. notes taken during interview

Question 7

Relevancy test

Answer 7

s23 CPIA
Material may be relevant to investigation if it appears to investigator, OIC or disclosure officer that it has some bearing on any offence under the investigation or any person being investigated or the surrounding circumstances of the case, unless it is incapable of having any impact on the case.
Very subjective.
Examples of relevant material:
Witnesses previous convictions
The fact that witness has a grudge against D
Witness shown to be unreliable
House to house enquiries made but no one saw anything
It was dark and rainy that day - identification issue potentially.
A negative result can sometimes be as important as a positive one e.g. CCTV did not record crime/suspect in a manner consistent with prosecution case or a fingerprint cannot be identified as belonging to the suspect.

Question 8

Sensitive material

Answer 8

Relevant material is sensitive if when disclose it would give real risk of serious prejudice to an important public interest.
So material that is not in the public interest to disclose.
E.g. intelligence, identifies an observation point, reveals confidential police methods
Should disclose as much as you can - the sensitive parts will usually be blanked out (redacted) and put as sensitive elsewhere or edited copies of summaries made.
May be necessary to withhold some evidence from defence to preserve the fundamental rights of another or safeguard an important public interest - but must be strictly necessary to be permittable regarding art 6.

Question 9

Disclosure test

Answer 9

Is material capable of having an adverse effect upon the strength of the prosecution case or is the material capable of supporting any defence reasonably available to D?
If yes, it meets disclosure test and must be disclosed?
So material that could undermine prosecution case or assist defence case.

Question 10

Disclosure officer

Answer 10

Police officer or civilian
Must be appointed in sufficient time to be able to prepare the unused material schedules for inclusion in the case file.
Completes MG6E.
Link between investigation team and prosecutor (CPS).

Question 11

Reasonable lines of enquiry

Answer 11

All reasonable lines on enquiry that point towards or away from the suspect.
Investigator must pursue all reasonable lines of enquiry and retain all information relevant to the case whether it is helpful to prosecution or not.
Failure to do so will be a miscarriage of justice.

Question 12

Pre-charge engagement

Answer 12

In some cases it may be appropriate for OIC to engage with defence at pre-charge stage.
Police can ask defence lawyers if there are any lines of enquiry the defence want police to look into.
This is to try and stop things arising at court later and leading to the case being adjourned.
Can be with a D directly if they don’t have a solicitor as long as they have been informed of their right to legal advice.

Question 13

Complaints against police officer involves in a case

Answer 13

Complaints against police officers involved in the case, together with any occasions where they have not been believed in court may affect their credibility.
Should be brought to prosecutors attention.
No duty to disclose unsubstantiated complaints.
PSD will have responsibility for deciding whether it should be revealed to prosecutor. CPS can then decide whether it needs to be disclosed.

Question 14

Third party material

Answer 14

2 categories
A - material which is or has ben in the possession of police or has been inspected by police
B - material which does not fall into A
Material in category A is covered by disclosure rules like any other material police have.
If there is material in category B which police think may be relevant but the third party wont hand it over, investigator should inform third party of the investigation and told of need to preserve the material.
Consideration taken as to whether it is appropriate to seek access to the material and if so steps taken to do this.
If material is likely to undermine the prosecution case or assist the defence it will be important to do this as it needs to be disclosed.
If refused and police believe it is is reasonable to seek production of material before suspect is charged, they may make an application under sch 1 PACE - special procedure material.
If suspect has been charged already and the third party is still refusing, application will have to be made to court for a witness summons

Question 15

Retention of material

Answer 15

Must retain documents and evidence.
Material itself does not have to be admissible in court for it to undermine the prosecutions case.
If OIC becomes aware of information that was examined but not retained becomes relevant, they should take steps to recover material where practicable or ensure it is preserved by the person in possession.
If investigation started before D was suspect e.g. from surveillance, it would be necessary to retain material from that operation.

Question 16

Initial disclosure

Answer 16

s3 all previously disclosed material that might undermine the prosecution case must be disclosed to defence.
If there is no such material, defence must be given a written statement saying that.
This applies to all material in possession of police or that they’ve inspected.
Disclosure officer should know all this material held or inspected.
In Magistrates summary GAP cases don’t have to provide a schedule of unused material.
Only have to disclosure material related to the prosecution in question.
Material must be disclosed to the point that is in the public interest.

Question 17

MG6 forms

Answer 17

MG6C - schedule of relevant non-sensitive material

MG6D - schedule of relevant sensitive material and why

Question 18

Informants

Answer 18

Court recognise the need to protect the identity of informants
However there may be occasions where is a case is to continue the identity of the informant will have to be disclosed.
E.g. if there is a suggestion that I has participated in the events constituting, surrounding or following the crime.
Judge must consider whether this role so impinges on an issue of interest to the defence as to make disclosure necessary.
Basically has to be balanced against Ds right to a fair trial (art 6).
Where I has participated in the crime is called to give evidence at trial, there would have to be very strong reasons for it not to be disclosed.

Question 19

Full code test

Answer 19

Should aim to use this test in most cases
Investigation complete and file ready for CPS.
Is there sufficient evidence to provide a realistic prospect of conviction? (51%+)
Is it in the public interest to charge?
If yes for both it meets the full code test.

Question 20

Threshold test

Answer 20

When we haven’t completed investigation but custody clock is running out and we want them remanded.
Must be substantial grounds to seek remand in custody.
Test:
There is reasonable grounds to suspect D to be charged with the offence.
We think that further evidence can be obtained to provide a realistic prospect of conviction.
The seriousness or circumstances of the case justifies the making of an immediate charging decision.
There are continuing substantial grounds to object to bail and in all the circumstances of the case it is property to do so.
It is in the public interest to charge D.

Question 21

Disclosure by the defence

Answer 21

Duty of the defence to make disclosure only arises after the prosecution has made the initial disclosure.
2 types: compulsory and voluntary disclosure by defence.

Question 22

Defence statement

Answer 22

Defence should set out nature of Ds defence, any defences D will raise, particulars of any matters of fact D intends to rely on, issues D disputes, any point of law they wish to raise and authority they wish to rely on for that.
Where defence involves an alibi, name and address of alibi witness.
Details of any other witnesses they wish to call.
After initial disclosure, defence have 14 days for summary proceedings or 18 days for crown court proceedings within which to provide defence statement. Can apply for extension.
Failure to provide - court/jury may draw inferences or make comment as appears appropriate

Question 23

Compulsory disclosure by defence - s5

Answer 23

Defence statement
Details of witnesses they intend to call
If there are co-Ds they must give a defence statement to each co-D and get one from each co-D.
Once prosecution have defence statement they must disclose any material they have which might reasonably be expected to assist Ds defence and has not already been disclosed.

Question 24

Voluntary disclosure by the defence - s6

Answer 24

In magistrates court D is not obliged to serve a defence statement but may wish to do so.
D must provide details of their witnesses they wish to call.

Question 25

Continuing duty of prosecutor to disclose - s7A

Answer 25

Continuing duty on prosecutor, at any time between initial disclosure and D being acquitted, convicted or deciding not to continue to prosecute, to keep under review the question of further disclosure.
If anything comes to light it must be disclosed as soon as reasonably practicable.

Question 26

Interviewing defence witnesses or alibi witnesses

Answer 26

s21A sets out guidance on interviewing defence/alibi witnesses.
Must notify the defence before interview.
Must be asked if they consent.
Must be offered a solicitor or appropriate adult if needed.
Must be recorded.

Question 27

Disclosure of statements in cases of complaints against the police

Answer 27

Statements made by witnesses during an investigation of a complaint against a police officer are disclosable, however the timing of the disclosure may be controlled.
No requirement to disclose witness statements to eye-witness complainant as evidence could be contaminated.
General rule - complainant not entitled to disclosure of witness statements used in the course of police investigation until its conclusion at the earliest.
Police complaints and disciplinary files may also fall within sensitive material that doesn’t have to be disclosed.