Disclosure

Question 1

The Statutory Regime and Common Law in regards to unused material

Answer 1

Set out in the CPIA 1996, Part I (ss.1 to 21)

Question 2

Prior to the Statutory regime, it was common-law rules dictating this

Answer 2

• Following a number of high-profile miscarriages of justice which failure of disclosure played a part, this was developed

Question 3

When does CPIA 1996 (DUTY TO DISCLOSE) begins/apply?

Answer 3

• 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)).

Question 4

Does disclosure obligation exist in summary trial?

Answer 4

Disclosure obligations now exist in relation to cases expected to be suitable for summary trial in which a not guilty plea is anticipated

Question 5

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).

Answer 5

• 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)

Question 6

When considering disclosure obligations post-charge but prior to statutory obligation, prosecution should consider:

Answer 6

(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.

Question 7

BASIC FAIRNESS

prosecution disclosure is a requirement of basic fairness

Answer 7

• 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

Question 8

There are stages to disclosure and level of disclosure changes

Answer 8

• 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.

Question 9

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

Answer 9

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

Question 10

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

Answer 10

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

Question 11

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

Answer 11

The defence have a duty to inform the prosecution of the case which they intend to present at trial

Question 12

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

Answer 12

Prosecution continuing duty to disclose material which meets the statutory test

Question 13

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

Answer 13

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

Question 14

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

Answer 14

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

Question 15

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

Answer 15

1 April 1997.

Question 16

STAGE 1 of disclosure
Investigation stage

• this applies to

Answer 16

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

Question 17

STAGE 1 of disclosure
Investigation stage

Responsibilities of Investigators and Disclosure Officers

Answer 17

• Varying functions
• need to retain CLEAR records of the identities of the persons performing these roles

Question 18

STAGE 1 of disclosure
Investigation stage

Key roles

Answer 18

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).

Question 19

STAGE 1 of disclosure
Investigation stage

Duty to Record and Retain Material

Answer 19

• 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)

Question 20

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:

Answer 20

• 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).

Question 21

STAGE 1 of disclosure
Investigation stage

The CPIA Code makes clear that the duty to retain material does not extend to…

Answer 21

items purely ancillary to the above categories which possess no independent significance, such as duplicates of documents

Question 22

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.

Answer 22

(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

Question 23

STAGE 1 of disclosure

Duty to Reveal Material to the Prosecutor

List of unused material: CC/MC

Answer 23

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.

Question 24

STAGE 1 of disclosure

Duty to Reveal Material to the Prosecutor

Sensitive material …

Answer 24

should be listed in a separate schedule or, exceptionally, disclosed to the prosecutor separately.

Question 25

STAGE 1 of disclosure

Duty to Reveal Material to the Prosecutor

Sensitive material is defined

Answer 25

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

Question 26

STAGE 1 of disclosure

Duty to Reveal Material to the Prosecutor

Example of sensitive material

Answer 26

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).

Question 27

What information about the sensitive material should be mentioned in the ‘sensitive schedule’?

Answer 27

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.

Question 28

STAGE 1 of disclosure

Duty to Reveal Material to the Prosecutor

Descriptions by disclosure officers in non-sensitive schedules

Answer 28

should be clear and accurate and must contain sufficient detail to enable the prosecutor to make an informed decision on disclosure

Question 29

STAGE 1 of disclosure

Duty to Reveal Material to the Prosecutor

What about documents which might satisfy the test for prosecution disclosure?

Answer 29

might satisfy the test for prosecution disclosure

Question 30

STAGE 1 of disclosure

Duty to Reveal Material to the Prosecutor

Disclosure officer’s certification

Answer 30

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

Question 31

STAGE 2

The prosecution must apply the statutory test in the CPIA 1996, s. 3

THE TEST

Answer 31

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.

Question 32

STAGE 2

The prosecution’s disclosure

If there are is no disclosable material?

Answer 32

The accused must be given a written statement to that effect.

+ The court officer must be informed by the prosecutor at the same time

Question 33

The prosecution’s disclosure

• objective test
• ongoing duty

Answer 33

• 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

Question 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 =

Answer 34

remains the biggest single cause of miscarriages of justice.

Question 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):

Answer 35

(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

Question 36

The duty relates to ‘Prosecution Material’, defined in s3(2) = material which the
prosecutor

Answer 36

(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.

Question 37

5 Preumsptions Re Disclosure Regime (R (2016), CA)

Answer 37

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

Question 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

Answer 38

• 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

Question 39

Prosecution disclosure:

Disclosure Management Documents

Answer 39

• 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.

Question 40

Prosecution disclosure:

The content of Disclosure Management Documents may include

Answer 40

• 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.

Question 41

Prosecution disclosure:

In cases involving large amounts of digital material, investigators should complete an Investigation Management Document

Answer 41

• 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

Question 42

Prosecution disclosure:

Prosecutor may disclose to defence, either by:

Answer 42

1. Providing a copy of the material to defence;

OR

2. Allowing inspection by defence at a reasonable time & place

Question 43

Prosecution disclosure:

Material MUST NOT be Disclosed

Answer 43

If:

a) Court has concluded disclosure not
in public interest;

b) If prohibited by s17 RIPA 2000

[[Regulation of Investigatory Powers
Act]]

Question 44

Prosecution disclosure:

There is schedule of unused material by a police officer which was served on P

Answer 44

This schedule must be served on the accused when the prosecutor makes disclosure of unused material under s.3

Question 45

Summary trials – Nature of Prosecution’s Obligations

NG plea

Answer 45

• 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

Question 46

Summary trials – Nature of Prosecution’s Obligations

G plea - is a schedule required?

Answer 46

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

Question 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:

Answer 47

• 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

Question 48

Time-limits for Disclosure

USED MATERIAL

Answer 48

• Prosecution will serve ‘INITIAL DETAILS’ of
  the prosecution case (used material) no later
  than beginning of day of first hearing.

Question 49

Time-limits for Disclosure

Magistrates’ court cases - the streamlined disclosure certificate

Answer 49

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

Question 50

Time-limits for Disclosure

CC cases - the streamlined disclosure certificate

Answer 50

• 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

Question 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

Question 52

STAGE 3 - The defence disclosure

MC

Answer 52

No duty on D to serve defence statement

Question 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.

Answer 53

14 days!

Question 54

STAGE 3 - The defence disclosure

CC Duty of Disclosure by the Defence

Answer 54

It is a duty to REVEAL THE CASE which
will be presented at trial (rather than disclosure of unused material).

Question 55

STAGE 3 - The defence disclosure

What is the defence statement?

Answer 55

written statement setting out the basis on which the case will be defended

Question 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:

Answer 56

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.

Question 57

Alibi evidence is defined as…

Answer 57

‘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’

Question 58

STAGE 3 - The defence disclosure

Defence statement

If DS contains an ALIBI it must give particulars of alibi witness, including:

Answer 58

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.

Question 59

STAGE 3 - The defence disclosure

Defence statement

How does D deal with changes in relation to alibi witnesses?

Answer 59

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.

Question 60

STAGE 3 - The defence disclosure

CC - A defence statement must be served on
prosecution & the court within

Answer 60

28 DAYS!

of the date when prosecution complies (or purports to comply) with duty of primary disclosure.

Question 61

Degree of detail within the defence statement

Answer 61

• 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’.

Question 62

Defence Statement and legal professional privilege & accused’s privilege

Answer 62

• 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.

Question 63

Notification of Details of Defence Witnesses

Answer 63

• 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.

Question 64

Notification of Details of Defence Witnesses

The Notice of Intention

Answer 64

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

Question 65

Notification of Details of Defence Witnesses

The Notice of Intention - can you get an extension of time for this period?

Answer 65

NO!

• There is provision for applications for extensions of this period and for treatment of weekends and bank holidays

Question 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

Answer 66

This must be dealt with by way of an amended notice to the court and the prosecutor

Question 67

Defence statement - extension

Answer 67

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

Question 68

Calculating Time to Serve Defence Statement

Answer 68

• 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

Question 69

What happens if D fails to serve a defence statement?

Answer 69

ADVERSE INFERENCES!

Question 70

Disclosure failure by D examples:

Answer 70

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)

Question 71

Adverse inferences by disclosure failure by D

Answer 71

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.

Question 72

Disclosure failure by D - comment

Answer 72

In the event that any of the issues under s11, the court may comment upon the failure in question

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:

Answer 73

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

Question 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)).

Answer 74

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,

Question 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;

Answer 75

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.

Question 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.

Question 77

STAGE 4

Prosecution’s continuing duty to keep disclosure under review

Answer 77

A prosecutor remains under a continuing duty to review questions of disclosure, applying a test in the same terms as s. 3

Question 78

Prosecution’s continuing duty to keep disclosure under review - before the accused is acquitted or convicted

Answer 78

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).

Question 79

Prosecution’s continuing duty to keep disclosure under review - before the accused is acquitted or convicted

Answer 79

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).

Question 80

Prosecution’s continuing duty to keep disclosure under review- when does this normally start?

Answer 80

• 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.

Question 81

Prosecution’s continuing duty to keep disclosure under review

After the service of defence statement, is there a need to review disclosure?

Answer 81

• 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

Question 82

Prosecution’s continuing duty to keep disclosure under review - other responsibilities of the prosecutor:

Question 83

Prosecution’s continuing duty to keep disclosure under review- between conviction and sentence

Answer 83

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

Question 84

Prosecution’s continuing duty to keep disclosure under review - following conviction (statutory duty)

Answer 84

• 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

Question 85

Prosecution’s disclosure duty - Once proceedings have concluded

Answer 85

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

Question 86

Prosecution’s continuing duty to keep disclosure under review- pending appeal

Answer 86

Pending an appeal, the prosecution are obliged to disclose any material not previously disclosed relevant to an identified ground of appeal

Question 87

WHEN MAY A PUBLIC INTEREST IMMUNITY ARISE?

Answer 87

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

Question 88

A PUBLIC INTEREST IMMUNITY - Who has the final say?

Answer 88

It is for court, rather than prosecution, to be final arbiter re whether prosecution can avoid disclosure on basis of public interest immunity.

Question 89

What happens if court deems disclosure to be a public interest immunity?

Answer 89

Court may withhold material from disclosure, but only to minimum extent necessary to protect the public interest, must never imperil overall
fairness of trial.

Question 90

When considering whether the document sis sensitive, the prosecution must consider…

Answer 90

possibility of prejudice to public interest through direct harm or indirectly through incremental/cumulative harm.

Question 91

Third Party Disclosure

Answer 91

This will include records held by health and education authorities, or financial institutions

Question 92

Whose duty is it to obtain the Third Party Disclosure?

Answer 92

if the material might be considered capable of undermining prosecution case/assisting defence case = the prosecutors should take appropriate steps to obtain it.

Question 93

Where it is believed the 3rd party holds relevant information, but such material is
not obtained = The 3rd party must be

Answer 93

(1) informed of the investigation and
(2) requested to retain the material in case a request for disclosure is made.

Question 93

Where it is believed the 3rd party holds relevant information, but such material is
not obtained = The 3rd party must be

Answer 93

(1) informed of the investigation and
(2) requested to retain the material in case a request for disclosure is made.

Question 94

Third-party disclosure: where material is requested but access/disclosure is refused?

Answer 94

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.