Disclosure Flashcards
Disclosure - prosecution?
During a criminal investigation the police or other prosecuting authority will often speak to a number of witnesses and take statements from them. As such a significant volume of material builds up, some of which will be relevant and some which will not
Used – relied upon at trail
- Statements from prosecutions witnesses
- Defendants record of taped interview
- Other documentary exhibits such as plans and diagrams that are relevant to proving the case
Unused – not relied upon at trial
- Statements from witnesses that the prosecution is not relying upon at trail to prove its case
- Records of previous convictions of prosecution witnesses
- Disciplinary findings against police officers
Importance of unused material?
- If prosecution having reviewed all material available considers that there is a realistic prospect of conviction and that it is in public interest to prosecute, it would clearly be wrong to only reveal info that supports the case.
- Fairness demands that material in the hands of the prosecution that might help a defendant is served on that defendant
- R v H and C [2004] ‘. Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure. The golden rule is that full disclosure of such material should be made.’
4 stages of disclosure? Investigation stage?
Investigation stage – duty to record and retain material during the investigation
- Duty to retain and record relevant material
- Under disclosure code of practice – must be recorded in a durable or retrievable form and retained
- There will be
- An officer in charge of the investigation: who is responsible for directing investigation and sneering proper procedures are in place for recording and retaining
- An investigator – must be fair and objective –
- A disclosure officer – responsible for examining material retained - must inspect, view, listed or search all relevant material has been retained by investigator and provide a personal deceleration that this has been done
- Includes:
- Crime reports
o Records from tapes
o Witness statements
o Exhibits
o Interview records
Provision of unused material to prosecutor
- In Crown Court cases the disclosure officer prepares a schedule known as an MG6C which individually lists the items of unused material.
- In magistrates’ court cases where a Not Guilty plea is anticipated the unused material is listed on a streamlined disclosure certificate.
- Sensitive material is listed in sperate schedule – where it is so sensitive it is revealed to prosecutor separately
4 STAGES OF DISLCLOSURE - INITIAL DUTY 2? on prosecution?
- CPIA s3 the prosecutor must:
- Disclose to accused any prosecution material which as not previously been disclosed to accused which might reasonable be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused
- Give accused a written statement that there is no material of description mentioned in paragraph 1.
Relates to prosecution material which is defined in s3(2) - Came into prosecutions possession
- He has inspected in connection with the case for the prosecution against the accused
Disclosure test under s3 CPIA is an objective 1
A-G guidelines add further detail to disclosure test. Prosecutors should consider - The use that might be made in cross-examination
- Its capacity to support submissions that could lead to
o Exclusion of evidence
o A stay in proceedings
o A court or tribunal finding that any public authority had acted incompatibility with ECHR - Its capacity to suggest an explanation on accused’s actions
- Capacity of material to have a bearing on scientific or medical evidence
One item on its own may not have that affect but several in conjunction may
In R [2016] - Prosecution is in driving seat at initial disclosure stage
- Must encourage a measured approach
- Encourage disclosure with defence
Time limits for initial disclosure - No later than beginning of the day of the first hearing in accordance with part 8 CrimPR
- Must include sufficient info to allow defendant and court at first hearing to take an informed view at:
- Plea
- On venue for trial
- For purposes of case management
The statutory duty under CPIA for unused material arises - In magistrates when a defendant pleads not guilty and case is adjourned for summary trial
o If there is any further prosecution evidence still to be serves the court will give a date by which this must be done
o If prosecution has not complied with its initial disclosure of unused material a date will be given for this to be completed
o Should do so trial date is effective - In crown court where a defendant is sent for trial where a voluntary bill of indictment has been preferred against a defendant
o If sent to crown court of PTPH will take place 28 days after sending. Prosecution should serve sufficient evidence in advance of or at PTPH to enable case management effectively without another case management hearing.
Disclosure stage 3 - Defence disclosure?
Defence statements
CPIA s5 imposes a duty to serve a defence statement on crown court, optional in magistrates court.
Contents
- A written statement
- Setting out nature of accused’s defence
- Indicating matters of fact which he takes issue with the prosecution
- Setting out why he takes issue
- Setting out particulars of the matters of fact on which he intends to rely for purpose of his defence.
Time limits:
Crown court
- Compulsory – MUST be served on prosecution and court within 28 days of date of when prosecution complies with its duty of initial disclosure
- Can be extended if application is made in time
Magistrates court
- Not compulsory 0 if decides to do so must do so in 10 business days of prosecution completing with initial duty of disclosure
Defence witnesses
- In both courts defendants has to disclose to both prosecution and court a notice indicating if D intends to call any witness at trial
- If so, identifying the witness by name, address and date of birth
- Alibi witnesses should be included
Disclosure failure by the defence
- Consequences of failure to do either on time, at all or insufficient done
- Under s11 CPIA – jury may draw such adverse inferences as appear proper against defendant
Disclosure stage 4 - continuing duty of disclosure?
- Duty to keep disclosure under review
- The A-G’s Guidelines para 39 advise that: ’Defence Statements are … intended to help focus the attention of the prosecutor, court and co-defendants on the relevant issues in order to identify exculpatory unused material.’
- Continuing duty means it should be disclosed even if found later
Applications for specific disclosure - Under s8 the defence can make an application to the court where it has reasonable cause to believe that there is prosecution material which should have been disclosed under s7A (5)
- Defence statements must set out issues clearly as a PREREQUISITE of reapplying under s8.
- Application must describe why they believe prosecutor
- Has the material
- And that it is material that it should be disclosed under CPIA
- Prosecution has 10 business days to respond to such application
Disclosure failure by prosecution - Consequences can be serious
- Defence can bring an application to stay the indictment on ground that to continue would be an abuse of process
- It could result in conviction being quashes on appeal due to being unsafe
- Could potentially result in exclusion of evidence in the case due to unfairness.
Third party disclosure - Sometimes it will become clear that material which is relevant may be held by third parties
- No duty of disclosure rests upon such third parties but if material might be considered capable of undermining the prosecution case or accused’s prosecutors should take appropriate steps to obtain it
- Third parties should be informed, and a request should be made for the material in question
Public interest immunity
- May not want to disclose because it would give a real risk of serious prejudice on important public interest
- Requires course of action is to apply for non-disclosure in public interest, called Public Interest immunity 0 court will consider and withhold of such material to the minimum extent necessary to protect public interest
Pre trial matters?
Magistrates’ court
In simple, summary only cases in the magistrates’ court, many if not all pre-trial matters can be
resolved at the first hearing. In more complex cases further pre-trial hearings may be required.
10.1.2 Crown Court
In cases to be dealt with at the Crown Court, there will be at least one hearing in the Crown
Court, the PTPH, to deal with pre-trial matters. In more complex Crown Court cases further pretrial hearings may be necessary in order to ensure parties are trial ready.
10.1.3 The Criminal Procedure Rules
The Criminal Procedure Rules have a clear aspiration running through them that the parties and
the court resolve all pre-trial matters before the day of trial where possible. The expectation is that
on the day of trial parties will be ready to start immediately unless something unexpected has
arisen.
10.2 Pre-trial
Pre trial matters in the magistartes court?
- Many if not all can be relived at first hearing
- Court will give directions for: at first hering
- Service of documents between parties
- Set out a timetable as to when matter so law will be resolved
- Set a trial date
How is evidence served on defence?
When magistartes send a case to crown court?
- Set a date for PTPH within 28 days
- Magistrates court will complete a sending sheet – a notice specifying offences for which the defendant is being sent
- Evidence must be served in 50 days if in custody or 70 if on bail
Pre-trial matters in crown court?
Where the case is sent forthwith to crown court under s51 , the magistrates’ court will make a series of standard directions for the
prosecution to serve its case on the defence and for a defendant to serve a defence statement in
response. The PTPH is scheduled shortly after this.
Where a trial is anticipated the parties are required to fill in a PTPH form in advance of the
hearing as the judge uses it when the hearing is conducted.
The PTPH consists of two parts:
* First ‘plea’; and
* Second either ‘sentence’ or ‘trial preparation’ stage.
First plea stage for cc?
Plea stage
- If defence wants to make an app to dismiss charges must do so before plea is taken
- At plea stage there is an arraignment a defendant pleads
Unfit to plead
- If judge has determined defendant unfit to plea – no plea is taken
- Court will have to hold a trial with jury and so trial prep stage will begin.
- If they are found to have committed act, can be made subject to:
- An absolute discharge
- Supervision order
- A hospital orders
Trial prep stage?
- These are all subject to questions on the PTPH form that advocates must complete before the hearing
- Trial date. If a trial date has not already been set, a trial date will be set at the PTPH taking
- into account the likely estimate of the length of the trial and witness availability.
- Prosecution evidence. The prosecution will have to confirm if it has served all of its evidence or,
- if not, what is still left and when it will be served.
- Expert evidence. If the prosecution or defence intend to rely on expert evidence, directions will
- be given for service and for seeking agreement between experts.
- Witness requirements. The defence must inform the prosecution and set out on the form those
- prosecution witnesses they require to attend court to give evidence, as well as estimating how
- long it will take to question each witness. The defence must also give details of any defence
- witnesses it intends to call.
Other applications?
Applications to exclude evidence or introduce otherwise inadmissible evidence
- May want to exclude using s78 of PACE
- Can be dealt with at PTPH but this is rare
- At a hearing on day or at some point between PTPH and trial
- On day of trial before trial starts – MOST COMMON
Special measure?
Some measures in place to help assist
Types
- Youth justice and criminal evidence act 1999
- Use of screens
- Live tv links
- Giving evidence in private
- Removing wigs and gowns by barristers and judges
- Video recording of evidence in chief
- Pre-recording cross-examination and re-examination
Eligibility
- All witnesses under 18 are automatically eligible
- Witness how have a mental disorder or significant impairments
- Who are in fear
- All adult complainants of sexual offences
- All adult complainants in certain offences under modern slavery act 2015
Special measures: additional types
- Witness anonymity orders
- Automatic anonymity of complainants in sex cases
- Prohibition of cross-examination by defendants in person of complainants in sex cases
- Restricting the reporting of witness’s identity
Vulnerable defendants
- To give evidence via a live link
- Court must be satisfied that it would be in interests of justice and the live link would improve quality of accused’s evidence because either
- Under 18
- Or unable to participate effectively
Witness summons and warrants?
The police are responsible for securing attendance of prosecution witnesses and defence solicitors are responsible for defence witnesses
SOMETIMES PEOPLE DON’T WANT TO BE WITNESSES.
Summons can either be for person to attend court or produce a document
Test for party seeking summons is
- Witness is likely able to give evidence and that evidence is likely to be material AND
- It’s in interest of justice to issue a summon
