Disclosure Flashcards
what are the 4 stages of disclosure?
1)Investigation stage = prosecution has a duty to record and maintain all evidence gathered
- P must retain material until D is released from custody (custodial sentence) or until 6 months from conviction (non-custodial sentence)
2) Prosecution’s initial duty of disclosure
3) Defence disclosure
4) Continuing duty on prosecution to disclose = lasts until D is convicted/acquitted/P decides not to proceed
what is used material VS unused material?
- used material = relied on by prosecution in its case (statements of prosecution witnesses, the tape record of the defendant’s interview, and other documents and exhibits) ==> P MUST SERVE BEFORE FIRST HEARING
- unused material = not relied on by prosecution which undermines P’s case or could reasonably assist D’s case ==> P must serve as soon as reasonably practicable after the duty to do so it triggered
what is the prosecution’s initial duty of disclosure?
duty = prosecution must disclose all unused material which is capable of undermining the prosecution case or could reasonably assist the defence case as soon as reasonably practicable once the duty has been triggered
when is the prosecution’s initial duty of disclosure triggered?
- D enters a not guilty plea in Magistrates
- Matter is sent for trial to the Crown Court
if material comes into P’s possession after initial disclosure which assists D’s case or harms P’s case, does P have to disclose?
yes - P’s duty is an ongoing duty which lasts until D is acquitted or convicted
How does P comply with its duty of initial disclosure?
either by:
- disclosing information that is capable of harming its case or assisting D’s case, or
- giving D a written statement that there is no material that needs to be disclosed
what material must P disclose during its initial duty of disclosure?
- unused material = any material which UNDERMINES the prosecution case or could reasonably ASSIST the defence case should be disclosed to the defence (objective test)
- neutral material = does NOT need to be disclosed (does not help D or hurt P)
- P must only disclose unused material it actually inspected
what is sensitive information? does P have to disclose this?
- sensitive material = might involve info relating to intelligence or undercover officers
- prosecution can make an application for PUBLIC INTEREST IMMUNITY if P does not want to disclose
- test for public interest immunity = disclosing would give rise to a REAL RISK OF SERIOUS PREJUDICE to an important PUBLIC INTEREST
does D have a duty to disclose unused material to P?
- NO - only P has this duty
- D does not have to disclose material adverse to its case or material which helps P’s case (but be weary of duty to the court)
what is the defence’s duty of disclosure and when does it arise?
when P discharges their initial duty of disclosure, duty then shifts to D to serve:
- defence statement
- notice if D wants to call witnesses
when is a defence statement needed?
- Crown Court = ALWAYS needed
- Magistrates Court = optional - but if D does not make defence statement they cannot make an application for specific disclosure
what are the form and contents requirements of a defence statement? (9)
- in writing
- signed by D and D’s solicitor
- nature of defence
- disputed issues and why
- any particular issues D intends to rely on in their defence
- any points of law D intends to dispute (admissibility of evidence or abuse of process claim)
- alibis or alibi witness
- D can request specific disclosure of certain listed items in the defence statement
- BUT: D CANNOT GIVE A BARE DENIAL (otherwise duty of disclosure is not discharged)
are defence statements privileged?
NO - but the proof that D gives his solicitor is privileged
what is the notice to call witnesses?
- D must send notice indicating whether D wants to call any witnesses to trial and who the witnesses are
- this is in both Crown Court and Magistrates Court
- notices are only for witnesses not alibis because alibis are included in defence statement
what is the time limit for D to serve defence statements and notices to call witnesses - crown court vs magistrates court?
- Crown Court = 28 after prosecution complies with initial duty of disclosure - but D can apply to extend within the 28-day period
- Magistrates Court = 14 days / 10 business days after prosecution complies with initial duty of disclosure
