Disclosure

Question 1

In what circumstances do the statutory obligations of disclosure arise

Answer 1

compulsory in Crown Court from point of sending to conviciton, acquittal, discontinuance
in Mags court where D has pleaded NG

Question 2

What is the process enivsaged by CPIA for prosecution and defence disclosure?

Answer 2

• police officers record and retain all material in investigation of a case
• all info to be provided to prosecution for review
• prosecution supply all material which meets stat test and schedule of all other info that exists to defence
• defence inform prosecution of their defence case
• ongoing duty on prosecution to disclose relevant info
• defence can make apps for disclosure

Question 3

to what cases does legislation around disclsoure apply

Answer 3

cases commenced after April 1997

Question 4

What amounts to a criminal investigation to give rise to police officers duty to retain and record?

Answer 4

• investigations into crimes that have been committed
• investigations to ascertain whether a crim ehas been committed (with a view to proceedings)
• investigations which begin in the belief a crime may be committed (with a view to proceedings)

Question 5

What three roles exist for police officers in relation to disclosure and what are they for?

Answer 5

investigator - any officer involved
disclosure officer - person responsible for examination and disclosure of material to prosecution (and defence when requested by prosecution)
- officer in charge of investigation - directs investigation and ensures procedure followed

Question 6

What are the key obligations within the AG guidelines

Answer 6

record, retian, review and reveal

Question 7

What is the duty to record and retain material?

Answer 7

record and preserve in a durable form - all material which may be relevant to an investigation - good or bad.
material found in the course of, and generated by.
must be retained until end of custodial sentence, acquittal or 6 months post non-custodial sentence, or appeal concluded.

Question 8

What is an MG6C

Answer 8

Crown Court disclosure document

Question 9

list a few things likely to be included in disclosure

Answer 9

telephone massages, incident logs, contemporaneous records of incident, custody records, previous accounts or complaints, interview records, mateial casting doubt on reliability of witness

Question 10

How should ‘sensitive’ material be handled?

Answer 10

anything invetsigator believes would be risk to public interest if disclosed should be listed separately

Question 11

Give examples of pre-charge engagement for disclosure purposes

Answer 11

giving suspect opportunity yo comment on proposed lines of enquiry and ID new ones
asking whether suspect may be aware o digital material
agreeing key word searched of digital material
obtianing suspect consent to access med records
suspect identifying a witness
clarifying whether expert or forensic evidence is agreed.

Question 12

what guidelines surround pre-charge engagement

Answer 12

suspect should be reminded of their right to legal advice, be wary of stalling on behalf of suspect, entirely voluntary and may be terminated any time, any time after first PACE interview

Question 13

what level of disclosure might be expected post charge but prior to stat obligation arising

Answer 13

ie common law obligation - assist parties with early preparation - not full blown but anything that might help defence with bail, abuse of process or prepare for trial

Question 14

What is the statutory test for disclosure

Answer 14

anything that might reasonably be considered capable of undermining the case for the prosecution against the accused or assisting the case of the accused
^objective test
defebce to be provided with written statement if there is nothing to disclose

Question 15

What factors must a prosecutor consider when considering statutory test for disclosure

Answer 15

use of material in XX
capacity to support submissions which could lead to exclusion of evidence/stay/breach of ECHR
capacity to suggest explanation or partial explanation of actions
capacity to undermine reliability of prosecution witness
capacity to have bearing on scientific or medical evidence in the case
ill treatment of accused in custody/mental health

Question 16

how is disclosure complied with as per the act?

Answer 16

material in prosecutions possession having come into possession in relation to investigation. if recorded in any form, copy must be made to provide to the accused. if not recorded, securing recording in form as sees fit and securing copy OR arranging inspection at reasonable time and place

Question 17

when should unused material schedule be disclosed?

Answer 17

schedule of unused material must be given at same time as disclosure under s3

Question 18

What are the time limits for disclosure?

Answer 18

no stat time limits - as soon as reasonably practicable after happening of event e.g serving of prosecution case in crown or formal indication of NGP in mags . judge should use prelim hearing to set time limit

Question 19

What is the effect of the duty of continuing review

Answer 19

if at any time before accused is convicted, acquitted any info arises which meets stat test must be disclosed asap (save if protected by public interest/RIPA)

Question 20

when does duty to review end?

Answer 20

statutory duty ends after acquittal, conviction or disocntinuance
between conviction and sentence - common law duty holds for any info which may effect sentence
once concluded - prosecution must still disclose any info which calls into question the safety of the conviction

Question 21

when should the defence make a part 8 application for disclosure

Answer 21

AFTER open communication between parties requiring specific evidence to be disclosed and if refused
where defence statement has been served (and is adequate) and prosecution have seemingly failed to comply with disclosure under stat test.

Question 22

What should be included in a defence statement?

Answer 22

nature of accused’s defence, inc particular defences upon which accused intends to rely
matters of fact on which the accused takes issue with prosecution, with the reasons why
particulars of the matters of fact on which the accused intends to rely
any points of law which the accused wishes to take with authorities

Question 23

what should defence statements NOT do

Answer 23

make general accusations to trigger wide disclosure
be ambiguous as to chosen defence
no confidential discussions/comms

Question 24

if the defence statement discloses an alibi - how must it do this?

Answer 24

give particulars of the alibi - the name, address, DOB of any witness who will be called to confirm, if not known identify a way to find that witness e.g works at this bar and description?

Question 25

When must intention to call witnessess be disclosed

Answer 25

14 days summary
28 days crown
from date of prosecution disclosure
any change can be dealt with by amendment

Question 26

What is consequence of failure to provide defenxe statement in summary proceedings

Answer 26

cannot make part 8 application for disclosure
(no advers inference etc as not required to serve one at all)
where they choose to do so it must be filed within 14 days from disclosure (can be extended by application)

Question 27

what is the time limit for service of defence statement in crown court?

Answer 27

28 days after prosecution comply with disclosure
can be extended by application before expiry of deadline
if court conisder it unreasonable to require compliance within time - application must state days required, grounds and be within time limit

Question 28

what are the consequences of failure to provide defence statement in the crown court

Answer 28

prosecution may comment on fault without leave of the court
jury may draw adverse inference from any inconsistency
wasted costs order

NOT contempt of court, refusal to allow witness etc…

Question 29

In what circumstances and how would information be withhold in public interest?

Answer 29

if revealing information would risk prejudice to public interest.
courts may order withholding of info only to the minimum extent necessary and never imperilling the overall fairness of trial
should be included in sensitive schedule giving reasons and consequences

Question 29

What is obligation of prosecutors in relation to info held by 3rd parties?

Answer 29

follow all reasonable lines of enquiry whether toward or away from suspect.
if reason to believe 3rd party holds relevant info - to make enquiries of that 3rd party - court has power to request these if refused