Disclosure (Criminal Week 2)

Question 1

Investigator’s duty

Answer 1

Police officers have statutory duty to record and retain all relevant material (gathered or generated; includes negative information and e.g. old versions of witness statements, but not ancillary material such as duplicates of documents)

Question 2

Where Part 1 CPIA provisions apply (disclosure of unused material by the prosecution and disclosure of the defence case).

Answer 2

Compulsory in relation to cases sent to CC to be tried on indictment. Statutory duties begin with arrival of case in CC and end with conclusion of trial (but outside of this there are common law duties in relation to sentence and appeal). The regime may also apply in relation to a summary trial (e.g. s.3 duty of disclosure applies).

Question 3

Initial details of prosecution case

Answer 3

[IN BOTH MAGS AND CC - Because not Part 1] P must serve initial details on D no later than the beginning of the day of the first hearing. If D is in custody, this includes a summary of the circumstances of the offence and D’s criminal record. If D is on bail, this also includes any account given by D in an interview, any written witness statement they consider relevant to plea, allocation, or sentence, and any available statement addressing the effect of the offence on the victim or others.

Question 4

Failure to comply with duty to give initial details of prosecution case

Answer 4

Court must allow P to introduce that information unless D is first allowed sufficient time to consider it.

Question 5

Statements of prosecution witnesses

Answer 5

In CC cases they must be served on D when case is sent to CC for trial, assuming they haven’t been served already. In Mags trials, it is regarded as good practice that D should receive copies of witness statements before trial, so they are immediately served on the defence even though there is no statutory duty to do so.

Question 6

Material that does not form part of the prosecution case

Answer 6

Part 1 Criminal Procedure and Investigations Act 1996 requires P to disclose to D any unused material which might reasonably be considered capable of either undermining the prosecution case or assisting the case for the defence (Section 3). If there is no disclosable material, the accused must be given a written statement to that effect and the court officer must be informed by the prosecutor at the same time. P under a continuing duty to review disclosure obligations. If new material comes to light, it must be reviewed to see if it has to be disclosed to the defence. Prosecution’s s.3 duty of disclosure applies when D pleads NG and there is a summary trial.

Question 7

Schedule of material

Answer 7

Material meeting s.3 test requirements should be disclosed to D usually together with a full schedule of all the other material recorded and retained. Any ’sensitive material’ should be listed in a separate schedule or, exceptionally, disclosed to the prosecutor separately.

Question 8

Application to order further disclosure

Answer 8

After prosecution have purported to comply with their disclosure duty, the defence can apply under s.8 to the court to order further disclosure so long as a defence statement has been served.

Question 9

Third party disclosure

Answer 9

If not possessed by P, falls outside the disclosure obligations in the 1996 Act. Achievable by seeking a Witness Order. Has to be shown that likely to be relevant and that it is in the interests of justice for an order to be made.

Question 10

Public interest disclosure

Answer 10

Court must ask:

1. Is statutory disclosure test satisfied?
2. Is there a risk of serious prejudice to an important public interest if full disclosure is ordered? If not, full disclosure should be ordered.

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