Disclosure and Pre-Trial Matters Flashcards
What are the prosecution’s 3 duties of disclosure?
- Investigation stage
- Initial Duty
- Continuing duty
What is the prosecution’s duty of disclosure at the investigative stage?
All material relevant to the investigation must be recorded in a durable or retrievable form and retained until the latest of:
(a) a decision to institute proceedings;
(b) verdict / prosecutor drops case;
(c) where D convicted, at least 6 months or until D is released from custody or hospital;
(d) where conviction appealed, until the appeal is concluded.
Who is the disclosure officer and what is their role?
Every investigation has an officer in charge of the invesigation and a disclosure officer. The disclosure officer must inspect, view, listen to or search all of the relevant retained material and provide a personal declaration, seeking advice from the prosecutor where there is doubt. They exercise their judgment but ultimately are guided by the prosecutor as to what should be disclosed.
What is used material? When must it be served?
Used material is evidence which the prosecution will use to make its case against the defendant. It must be served alongside the initial details no later than the beginning of the day of the first hearing.
What is unused material?
Material which the prosecution are not using to prove its case against the defendant.
What is the prosecution’s duty of initial disclosure? When does it arise?
The prosecution must disclose to the defendant any material in the prosecution’s possession in connection with the case which might reasonably be capable of undermining the prosecution’s case or assisting the defendant’s case. Might be one item of evidence or cumulative.
Arises either:
1. When D pleads not guilty in the Mags;
2. When D is sent for trial in Crown Court.
Which factors should be considered when considering whether unused evidence might undermine / assist?
- Use of material in cross-examination
- Capacity to support submissions that could lead to exclusion of evidence, stay of proceedings for abuse of process or infringement of ECHR
- Capacity to explain / partially explain D’s actions
- Capacity to have bearing on medical / scientific evidence in case (i.e Ds mental, physical, intellectual capacity or treatment in custody).
What is the common law duty of disclosure?
The prosecutor may need to make advance disclosure of material to assist the defence with early preparation of their case or at the bail hearing.
What is the continuing duty of disclosure?
Owed by the prosecution. Duty of prosecutor to keep disclosure under review throughout the case and, in particular, where a defence statement is served.
What is the defence statement?
A written statement setting out the nature of the accused’s defence. Must include particular defences, disputed facts, points of law, alibi details and other information in D’s possession of material assistance in finding alibi witness.
When does the duty to serve a defence statement arise?
Not in the Magistrates court, although can only make an application for specific disclosure in the Mags if you have served a defence statement. If do choose to serve a defence statement, must be within 10 days of prosecution serving unused material.
In the Crown Court, there is a duty to serve a defence statement on the court and prosecution within 28 days of prosecution serving the unused material.
What happens if D fails to serve a defence statement in the Crown Court?
Sanctions also apply where D chose to serve defence statement in Mags.
- Under s.11 of the CPIA, the jury may draw adverse inferences.
- Prosecution / co-defendant may comment on the failure without leave of the court unless it relates to a point of law.
What is an application for specific disclosure?
A last resort and should liaise with prosecution first. Defence can apply to court where there is reasonable cause to believe that there is prosecution material which should have been disclosed (i.e unused). Can only do so after defence statement has been served and prosecution has 10 business days to respond in writing.
What happens if the prosecution fails to comply with their disclosure duties?
- D can bring application to stay indictment on the grounds of abuse of process.
- Conviction quashed on appeal due to being unsafe
- Delay and wasted costs
- Exclusion of evidence
What can be done to facilitate 3rd party disclosure?
No duty on 3rd parties to disclose information but prosecutors should inform them of the investigation and request material in question to be retained.
* Must be reason to believe that the 3rd party holds the relevant material
* If disclosure is refused, can seek summons.
