Disclosure Flashcards
1
Q
The Statutory Regime and Common Law in regards to unused material
A
Set out in the CPIA 1996, Part I (ss.1 to 21)
2
Q
Prior to the Statutory regime, it was common-law rules dictating this
A
- Following a number of high-profile miscarriages of justice which failure of disclosure played a part, this was developed
3
Q
When does CPIA 1996 (DUTY TO DISCLOSE) begins/apply?
A
- The regime is compulsory in relation to cases sent to the Crown Court to be tried on indictment.
- The statutory duties begin with the arrival of the case (by whatever route) in the Crown Court (s. 1(2)) and end with the conclusion of the trial, whether by conviction, acquittal, or the discontinuation of proceedings (s. 7A(1)(b)).
4
Q
Does disclosure obligation exist in summary trial?
A
Disclosure obligations now exist in relation to cases expected to be suitable for summary trial in which a not guilty plea is anticipated
5
Q
The CPIA 1996 expressly provides that it displaces the common law in cases to which it applies save in respect of common-law rules governing whether disclosure is in the public interest (see s. 21 and D9.50).
A
- Common-law remains relevant
- that circumstances may arise in which a prosecutor may be required to disclose material to the defence outside the scheme of the CPIA 1996 (e.g., in connection with a bail application at an early stage, or following the conclusion of proceedings)
6
Q
When considering disclosure obligations post-charge but prior to statutory obligation, prosecution should consider:
A
(1) o The right for a defendant to have adequate time and facilities to prepare the defence is also expressly protected by the ECHR, Article 6(3)(b).
(2) The essential consideration for a prosecutor is whether disclosure of any material to the defence is required in accordance with the interests of justice and fairness.
7
Q
BASIC FAIRNESS
prosecution disclosure is a requirement of basic fairness
A
- Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence
8
Q
There are stages to disclosure and level of disclosure changes
A
- It is important to note that while the principle of fairness informs the duty of disclosure at all stages of proceedings, it does not follow that fairness requires the same level of disclosure at each stage.
9
Q
The legislative regime under the CPIA 1996 envisages a staged approach to the disclosure of unused prosecution material and the defence case
STAGE 1
- A statutory duty upon police officers
A
A statutory duty obliges police officers investigating an offence to record and retain all information and material, gathered or generated, that may be relevant to the investigation
+
Material which is relevant to the investigation but is not expected to form part of the prosecution case should be provided by the police to the prosecutor for review
10
Q
The legislative regime under the CPIA 1996 envisages a staged approach to the disclosure of unused prosecution material and the defence case
STAGE 2
The prosecution must apply the statutory test in the CPIA 1996, s. 3
A
The prosecution must apply the statutory test in the CPIA 1996, s. 3, to that material and must disclose any material meeting that test, usually together with a schedule of all the other material recorded and retained
11
Q
The legislative regime under the CPIA 1996 envisages a staged approach to the disclosure of unused prosecution material and the defence case
STAGE 3
The defence
A
The defence have a duty to inform the prosecution of the case which they intend to present at trial
12
Q
The legislative regime under the CPIA 1996 envisages a staged approach to the disclosure of unused prosecution material and the defence case
STAGE 4
Prosecution’s continuing duty
A
Prosecution continuing duty to disclose material which meets the statutory test
13
Q
The legislative regime under the CPIA 1996 envisages a staged approach to the disclosure of unused prosecution material and the defence case
STAGE 5
Accused’s right to make application
A
Following service of the defence statement and any further disclosure (or a failure to make further disclosure), an accused may make further applications for disclosure
14
Q
The legislative regime under the CPIA 1996 envisages a staged approach to the disclosure of unused prosecution material and the defence case
Summary of stages
A
1- Investigation stage (A statutory duty upon police officers/investigators) + to reveal material to the Prosecution
2 - The prosecution must apply the statutory test in the CPIA 1996, s. 3
3 - The defence disclosure
4 - Prosecution’s continuing duty to keep disclosure under review
5- Accused’s right to make application
15
Q
The disclosure provisions of Part I of the CPIA 1996 apply to any alleged offence for which a criminal investigation began on or after…
A
1 April 1997.
16
Q
STAGE 1 of disclosure
Investigation stage
- this applies to
A
The CPIA Code applies to all criminal investigations carried out by police officers and persons other than police officers charged with the duty of conducting criminal investigations
17
Q
STAGE 1 of disclosure
Investigation stage
Responsibilities of Investigators and Disclosure Officers
A
- Varying functions
- need to retain CLEAR records of the identities of the persons performing these roles
18
Q
STAGE 1 of disclosure
Investigation stage
Key roles
A
an ‘investigator’ = any police officer involved in the conduct of a criminal investigation;
a ‘disclosure officer’ = the person responsible for examining material retained by the police during the investigation and for revealing material to the prosecutor;
and the ‘officer in charge of an investigation’ = 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 (para. 2.1).
19
Q
STAGE 1 of disclosure
Investigation stage
Duty to Record and Retain Material
A
- Must record all info that is relevant to the investigation
This includes:
(1) Negative info
(2) Material’ includes material gathered in the course of the investigation (e.g., documents seized in the course of searching premises)
20
Q
STAGE 1 of disclosure
Investigation stage
The CPIA Code expressly identifies that the duty to retain material will include, for example, the following categories of material:
A
- crime reports, including crime report forms, relevant parts of incident report books and police officers’ notebooks;
- final versions of witness statements; draft versions of witness statements where their content differs from the final version; interview records (written or taped);
- expert reports and schedules; any material casting doubt upon the reliability of a confession;
- and any material casting doubt on the reliability of a witness (para. 5.4).
21
Q
STAGE 1 of disclosure
Investigation stage
The CPIA Code makes clear that the duty to retain material does not extend to…
A
items purely ancillary to the above categories which possess no independent significance, such as duplicates of documents
22
Q
STAGE 1 of disclosure
Duty to Reveal Material to the Prosecutor
A list of material identified as likely to include information which meets the test for prosecution disclosure is set out at para. 6.6 of the CPIA Code.
A
(a) Crime Reports
(b) Custody Records
(c) Records (telephone messages etc)
(d) Final version of Witness Statements
(e) Interview Records
(f) Communications between police and experts
(g) Records of first description
(h) Any material casting doubt on the reliability of a witness
23
Q
STAGE 1 of disclosure
Duty to Reveal Material to the Prosecutor
List of unused material: CC/MC
A
CC: Disclosure Officer prepares a schedule which individually lists the items of unused material
MC: where the accused is likely to plead not guilty, a streamlined disclosure certificate is prepared. It is these schedules which the prosecutor will review when making decisions as to whether material is to be disclosed to the defence, applying the relevant statutory test.
24
Q
STAGE 1 of disclosure
Duty to Reveal Material to the Prosecutor
Sensitive material …
A
should be listed in a separate schedule or, exceptionally, disclosed to the prosecutor separately.
25
STAGE 1 of disclosure
Duty to Reveal Material to the Prosecutor
Sensitive material is defined
as 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
26
STAGE 1 of disclosure
Duty to Reveal Material to the Prosecutor
Example of sensitive material
Ranging from
- material relating to national security
- material given in confidence,
- material relating to informants, undercover police officers, premises used for police surveillance,
- techniques used in the detection of crime,
- material relating to child witnesses (e.g.,
- material generated by a local authority social services department).
27
What information about the sensitive material should be mentioned in the ‘sensitive schedule’?
Investigators are to specify the reasons why:
- the material is sensitive,
- the degree of sensitivity attaching to the material,
- the consequences of revealing it to the defence,
- the significance of the material to the issues in the trial, the involvement of third parties in bringing the material to the attention of the police,
- the implications for continuance of the prosecution if disclosure is ordered, and
- whether it is possible to disclose the material without compromising its sensitivity.
28
STAGE 1 of disclosure
Duty to Reveal Material to the Prosecutor
Descriptions by disclosure officers in non-sensitive schedules
should be clear and accurate and must contain sufficient detail to enable the prosecutor to make an informed decision on disclosure
29
STAGE 1 of disclosure
Duty to Reveal Material to the Prosecutor
What about documents which might satisfy the test for prosecution disclosure?
might satisfy the test for prosecution disclosure
30
STAGE 1 of disclosure
Duty to Reveal Material to the Prosecutor
Disclosure officer's certification
Disclosure officer must certify to the prosecutor that to the best of the officer’s knowledge and belief the duties imposed under the Code have been complied with
31
STAGE 2
The prosecution must apply the statutory test in the CPIA 1996, s. 3
THE TEST
Criminal Procedure and Investigations Act 1996, s. 3
(1) The prosecutor must—
(a) disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused, or
so the statutory test is whether it might reasonably be considered capable of:
(a) undermining the case for the prosecution against the accused; or
(b) assisting the case for the accused.
32
STAGE 2
The prosecution's disclosure
If there are is no disclosable material?
The accused must be given a written statement to that effect.
+ The court officer must be informed by the prosecutor at the same time
33
The prosecution's disclosure
- objective test
- ongoing duty
- applied to documentation created (or received) by an accused and that documents said to be required for memory refreshing fell within its scope
- s. 3 does not require disclosure of material which is either neutral in effect or which is adverse to the accused, whether because it strengthens the prosecution or weakens the defence
34
The prosecution's disclosure
Judicial Disclosure Protocol: don’t want trial process overburdened/diverted by
inappropriate disclosure of unused material;
the Judicial Protocol also warns that failure to disclose material to the defence =
remains the biggest single cause of miscarriages of justice.
35
- The A-G’s Guidelines set out some factors for a prosecutor to consider in deciding whether the s. 3 test is met for the purposes of initial disclosure in relation to any piece of material, including the following (para. 84):
(a) the use that might be made of the material in cross-examination;
(b) its capacity to support submissions that could lead to the exclusion of evidence, a stay of proceedings or a finding that any public authority had acted incompatibly with the accused’s rights under the ECHR;
(c) its capacity to suggest an explanation or partial explanation of the accused’s actions;
(d) its capacity to undermine the reliability or credibility of a prosecution witness;
(e) the capacity of the material to have n bearing on scientific or medical evidence in the case.
Material relating to the accused’s mental or physical health, intellectual capacity, or to any ill-treatment which the accused may have suffered in custody is said to be likely to fall within the test for disclosure
36
The duty relates to ‘Prosecution Material’, defined in s3(2) = material which the
prosecutor
(a) possesses; OR
(b) has inspected in connection with the case:
- Possesses = which is in the prosecution’s possession & came into his possession in connection with the case for the prosecution against the accused
- Inspected = which, in pursuance of the Disclosure Code of Practice, he has inspected in connection with the case for prosecution against the accused.
37
5 Preumsptions Re Disclosure Regime (R (2016), CA)
i. the prosecution are in driving seat re stage of primary disclosure
ii. prosecution must encourage dialogue and prompt engagement with the defence
iii. the law is prescriptive of the result of disclosure, not the method by which the
process should operate
iv. the process should be subject to robust case management by the judge, utilising full range of case management powers
v. flexibility is critical
38
Prosecution disclosure:
To add from R (2016) ,
Under the revised A-G’s Guidelines, there is an enhanced emphasis on the role of the defence
- to engage with the prosecution when prompted to do so
- to be clear at an early stage and notify the court if it is felt that the prosecution have not adequately discharged their obligations.
- the defence must not delay raising these issues until a late stage in the proceedings
39
Prosecution disclosure:
Disclosure Management Documents
- Disclosure Management Documents should be carefully prepared by the prosecutor on the basis of information provided by the investigator
- They should be tailored to the individual case and kept up to date as the case progresses.
40
Prosecution disclosure:
The content of Disclosure Management Documents may include
- for example: an explanation as to how disclosure responsibilities have been managed, a summary of the prosecution case, a statement outlining how the prosecutor’s approach will comply with the CPIA 1996 regime, and the prosecutor’s understanding of the defence case.
- Detail relating to the following may also be set out: lines of inquiry pursued, timescales for disclosure, the method and extent of examination of digital material, any potential video footage, steps taken to obtain any third party or international material and the credibility of prosecution witnesses.
41
Prosecution disclosure:
In cases involving large amounts of digital material, investigators should complete an Investigation Management Document
- this informs the Disclosure Management Document that prosecutors should complete
- Ideally, the investigator should consult the prosecutor before the digital material is seized, and in turn they may consider seeking advice from a digital forensic specialist on the strategy for the identification and review of digital material.
- The defence must also play their part in identifying the real issues in the case, including by defining the scope of any reasonable searches that may locate digital material that meets the disclosure test
42
Prosecution disclosure:
Prosecutor may disclose to defence, either by:
1. Providing a copy of the material to defence;
OR
2. Allowing inspection by defence at a reasonable time & place
43
Prosecution disclosure:
Material MUST NOT be Disclosed
If:
a) Court has concluded disclosure not
in public interest;
b) If prohibited by s17 RIPA 2000
[[Regulation of Investigatory Powers
Act]]
44
Prosecution disclosure:
There is schedule of unused material by a police officer which was served on P
This schedule must be served on the accused when the prosecutor makes disclosure of unused material under s.3
45
Summary trials – Nature of Prosecution’s Obligations
NG plea
- Prosecution duty of disclosure applies to summary trials WHEN: the accused pleads not guilty & court proceeds to summary trial.
- AG Guidelines, prosecutors should be alert to possibility of disclosing material to defence prior to the CPIA requirements arising. And CrimPR part 8.
- In such cases = streamlined Disclosure Process: involving a simplified Disclosure Schedule
46
Summary trials – Nature of Prosecution’s Obligations
G plea - is a schedule required?
if the the accused is charged with a summary offence or an either way offence at the MC, a schedule is not required unless a not guilty plea is subsequently entered or indicated
47
In cases heard in the magistrates’ court and the youth court, prosecutors should always consider whether or not a Disclosure Management Document would be beneficial
They are most likely to be beneficial in cases involving:
- substantial or complex third party material,
- digital material in which parameters of search,
- examination or analysis have been set, international inquiries,
- linked operations,
- non-recent offending and material held or sought by the investigation that is susceptible to a claim of legal professional privilege
48
Time-limits for Disclosure
USED MATERIAL
- Prosecution will serve ‘INITIAL DETAILS’ of
the prosecution case (used material) no later
than beginning of day of first hearing.
49
Time-limits for Disclosure
Magistrates’ court cases - the streamlined disclosure certificate
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 or the accused’s representative that a not guilty plea will be entered at the hearing
50
Time-limits for Disclosure
CC cases - the streamlined disclosure certificate
- There is NO statutory time-limit
Default position, s13 of Act: prosecutor must as ‘as soon as practicable’ once the initial duty of disclosure arises
51
- The Judicial Disclosure Protocol requires that, if there is a preliminary hearing, the judge should seize the opportunity to impose an early timetable for disclosure and to identify any likely problems including as regards third-party material and material that will require an application to the Family Court
52
STAGE 3 - The defence disclosure
MC
No duty on D to serve defence statement
53
STAGE 3 - The defence disclosure
MC - If D chooses to serve a defence statement, standard directions in m’ court provide must do so within _ days of prosecution complying with the initial duty
of disclosure.
14 days!
54
STAGE 3 - The defence disclosure
CC Duty of Disclosure by the Defence
It is a duty to REVEAL THE CASE which
will be presented at trial (rather than disclosure of unused material).
55
STAGE 3 - The defence disclosure
What is the defence statement?
written statement setting out the basis on which the case will be defended
56
STAGE 3 - The defence disclosure
Defence statement?
The areas that the statement must cover are set out in s. 6A of the CPIA 1996 and include:
The areas that the statement must cover are set out in s. 6A of the CPIA 1996 and include:
o the nature of the accused’s defence, including any particular defences upon which the accused intends to rely;
o the matters of fact on which the accused takes issue with the prosecution, with the reasons why;
o particulars of the matters of fact on which the accused intends to rely for the purposes of defence; and
o any points of law which the accused wishes to take, with any authorities relied upon.
57
Alibi evidence is defined as...
‘evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission’
58
STAGE 3 - The defence disclosure
Defence statement
If DS contains an ALIBI it must give particulars of alibi witness, including:
i. Name + DOB of any witness accused believes can give evidence in support of alibi
ii. If accused does not know above details, then: any info in accused’s possession which might be of material assistance in identifying/finding any such witness.
59
STAGE 3 - The defence disclosure
Defence statement
How does D deal with changes in relation to alibi witnesses?
Changes in relation to alibi witnesses, or the later discovery of the information required by statute, must be dealt with by the procedure for updated disclosure when this is in force.
60
STAGE 3 - The defence disclosure
CC - A defence statement must be served on
prosecution & the court within
28 DAYS!
of the date when prosecution complies (or purports to comply) with duty of primary disclosure.
61
Degree of detail within the defence statement
- the Court of Appeal said that a defence statement consisting of a general denial of the counts in the indictment, accompanied by a statement that D took issue with any witness giving evidence contrary to his denial, was ‘woefully inadequate’.
- However, notwithstanding Bryant, if the accused raises no positive case at all in a defence statement and simply requires the Crown to prove its case, there is no failure to comply with the CPIA 1996, s. 6A, as long as the defence statement makes clear that this is the accused’s position
- ‘Judges expect a defence statement to contain a clear and detailed exposition of the issues of fact and law’.
62
Defence Statement and legal professional privilege & accused’s privilege
- S6A do not affect legal professional privilege & accused’s privilege against
self-incrimination
o The accused is required to disclose what is going to happen at the trial, but is not required to disclose the confidential discussions with lawyers, nor is the accused obliged to self-incriminate if the accused does not want to.
63
Notification of Details of Defence Witnesses
- The defence are under a duty to notify the court and the prosecutor, separately from the defence statement, of any witnesses they intend to call at trial, other than the defendant and any alibi witnesses already notified
Must include:
- NAMES
- ADDRESSES
- DOB
(if any such details not known) then Any information to locate & identity the witness.
64
Notification of Details of Defence Witnesses
The Notice of Intention
must be served within 14 days (m’ court) and 28 days (Crown Court) of the prosecution complying (or purporting to) with s3 initial disclosure duty
65
Notification of Details of Defence Witnesses
The Notice of Intention - can you get an extension of time for this period?
NO!
- There is provision for applications for extensions of this period and for treatment of weekends and bank holidays
66
Notification of Details of Defence Witnesses
The Notice of Intention - what about if there changes in the plans to call witnesses/a decision not to call a previously notified witness
This must be dealt with by way of an amended notice to the court and the prosecutor
67
Defence statement - extension
The defence may apply for an extension, but the application must be made before the deadline expires
EOT must not be granted unless the court is satisfied that it would not be reasonable to require the accused to give a defence statement within 28 days.
No limit on the number of EOT applications
68
Calculating Time to Serve Defence Statement
* Time runs from the date on which the prosecution complies or purports to comply
with its initial disclosure obligations under s 3 CIPA (Primary Disclosure) – Partial
disclosure is enough to trigger defence disclosure obligations under s5
* Where the period would expire on Good Friday/Saturday/Sunday/Bank
Holiday/Christmas…..the relevant period expires on the NEXT DAY that is not
one of those
69
What happens if D fails to serve a defence statement?
ADVERSE INFERENCES!
70
Disclosure failure by D examples:
Where a D:
(a) fails to serve a Defence statement
(b) fails to do so within required time limit;
(c) serves a defence statement which is deficient in its content (eg not adequately setting out the defence relied on at trial; or not including an alibi witness).
(d) sets out inconsistent defences in the defence statement
(d) relies on a defence at trial which is different to that contained in Defence Statement; OR
(e) fails to give Notice of defence witnesses,
(Section 11 of the CPIA 1996)
71
Adverse inferences by disclosure failure by D
In case of such a failure (s11) , the court/jury may draw adverse inferences against D re whether the accused is guilty of the offence; although D cannot be convicted solely or mainly on that basis.
72
Disclosure failure by D - comment
In the event that any of the issues under s11, the court may comment upon the failure in question
73
Disclosure failure by D - comment
The prosecution and co-accused may also comment upon any defect in disclosure, but in certain circumstances such comment requires the leave of the court.
EXCEPTIONS were leave is required before
a comment can be made are when there is a:
i. failure to mention a point of law
(including re admissibility of
evidence/abuse of process) or an
authority to be relied upon;
ii. failure to give notice of/adequately
identify a witness; or
iii. failure to give such notice in time
74
Disclosure failure by D
If any of the above deficiencies applies, the court or jury may also draw such inferences as appear proper in deciding whether the accused is guilty of the offence concerned (s. 11(5)(b)).
The context in which such an inference can be drawn allows an inference to be drawn when the court determines whether there is a case to answer,
75
Disclosure failure by D
S11 contains the ONLY sanctions (comment
& adverse inference) available to court for
failure by defence to comply with disclosure
duties;
a) It is not open to court to prevent a D calling an alibi witness on basis that failed to include in a Defence Statement.
b) Court cannot decline to allow the accused to put forward matters in cross-examination because the material was produced with no
advance notice/late.
c) And court cannot punish by way of contempt of court.
d) However, where failure to provide a
defence statement results in additional expense for prosecution: a wasted costs order may be appropriate.
e) In all cases, the appropriate sanction is adverse comment or adverse inference.
76
Disclosure failure by D
Section 6E(2) CPIA- a judge can warn the D
at the PTPH or other pre-trial hearing that
failure to comply with the relevant provisions
may lead to comment being made or adverse
inferences being drawn.
77
STAGE 4
Prosecution's continuing duty to keep disclosure under review
A prosecutor remains under a continuing duty to review questions of disclosure, applying a test in the same terms as s. 3
78
Prosecution's continuing duty to keep disclosure under review - before the accused is acquitted or convicted
If the prosecutor forms the opinion that there is material which might undermine the prosecution case, or be reasonably expected to assist the accused’s defence, it must be disclosed to the accused as soon as reasonably practicable, provided that it is not prohibited under s. 7A(8) (public interest) or (9) (relating to the RIPA 2000).
79
Prosecution's continuing duty to keep disclosure under review - before the accused is acquitted or convicted
the prosecutor forms the opinion that there is material which might undermine the prosecution case, or be reasonably expected to assist the accused’s defence, it must be disclosed to the accused as soon as reasonably practicable, provided that it is not prohibited under s. 7A(8) (public interest) or (9) (relating to the RIPA 2000).
80
Prosecution's continuing duty to keep disclosure under review- when does this normally start?
- after service of defence statement
- In practice, the duty of continuing disclosure is most likely to crystallise either on service of the defence case statement or during the trial itself as the issues develop.
81
Prosecution's continuing duty to keep disclosure under review
After the service of defence statement, is there a need to review disclosure?
- CPIA Code requires, in effect, a repeat exercise of the process for initial disclosure.
- An investigator must again look at the material retained and draw the prosecutor’s attention to any material which might reasonably be considered capable of undermining the prosecution case or of assisting the defence if it were to be disclosed
82
Prosecution's continuing duty to keep disclosure under review - other responsibilities of the prosecutor:
83
Prosecution's continuing duty to keep disclosure under review- between conviction and sentence
common-law duty = to disclose any material that is not known to the accused but which may be relevant to sentence, such as information which might assist in placing the accused’s role in the correct context vis-à-vis other offenders
no statutory duty
84
Prosecution's continuing duty to keep disclosure under review - following conviction (statutory duty)
- there is no general duty on the State (through the police or CPS) to continue to investigate
- The statutory duties of disclosure under the CPIA 1996 terminate with a conviction, acquittal or discontinuation of the proceedings
85
Prosecution's disclosure duty - Once proceedings have concluded
the prosecution are still under a duty to disclose any material which might reasonably be considered capable of casting doubt on the safety of the conviction
this duty is a more stringent one
ordinarily post-conviction disclosure will only arise in respect of material which has come into the prosecution’s possession after trial
86
Prosecution's continuing duty to keep disclosure under review- pending appeal
Pending an appeal, the prosecution are obliged to disclose any material not previously disclosed relevant to an identified ground of appeal
87
WHEN MAY A PUBLIC INTEREST IMMUNITY ARISE?
Circumstances where P is under s3 duty
but prosecution believes disclosure would give rise to a real risk of serious prejudice to an important public interest
88
A PUBLIC INTEREST IMMUNITY - Who has the final say?
It is for court, rather than prosecution, to be final arbiter re whether prosecution can avoid disclosure on basis of public interest immunity.
89
What happens if court deems disclosure to be a public interest immunity?
Court may withhold material from disclosure, but only to minimum extent necessary to protect the public interest, must never imperil overall
fairness of trial.
90
When considering whether the document sis sensitive, the prosecution must consider...
possibility of prejudice to public interest through direct harm or indirectly through incremental/cumulative harm.
91
Third Party Disclosure
This will include records held by health and education authorities, or financial institutions
92
Whose duty is it to obtain the Third Party Disclosure?
if the material might be considered capable of undermining prosecution case/assisting defence case = the prosecutors should take appropriate steps to obtain it.
93
Where it is believed the 3rd party holds relevant information, but such material is
not obtained = The 3rd party must be
(1) informed of the investigation and
(2) requested to retain the material in case a request for disclosure is made.
93
Where it is believed the 3rd party holds relevant information, but such material is
not obtained = The 3rd party must be
(1) informed of the investigation and
(2) requested to retain the material in case a request for disclosure is made.
94
Third-party disclosure: where material is requested but access/disclosure is refused?
In Crown Court: seeking a witness summons under s2 Crim Procedure (Attendance of Witnesses) Act 1965 for production of the material;
In Magistrates Court: under similar provisions of s97 MCA 1980.
