Disclosure Obligations Flashcards
What is used material by the prosecution?
Used material is that which the prosecution rely on at trial to prove their case against the defendant
What is unused material by the prosecution?
Unused material is that which is not being relied on by the prosecution
What are the four stages of disclosure?
(1) investigation stage - duty to record and retain material during the investigation
(2) initial duty of disclosure on the prosecution
(3) defence disclosure
(4) continuing duty on prosecution to keep disclosure under review
What duty are the prosecution under at the investigation stage?
Duty to record and retain all material which may be relevant to the investigation
How long does the duty to record and retain all material which may be relevant to the investigation last for?
Lasts at least until decision is taken whether to institute proceedings against a suspect for a criminal offence
If proceedings are commenced, how long must material be retained for?
Until accused is acquitted, convicted or prosecutor drops case
If the defendant is convicted, how long must the material be retained for?
Until defendant is is released from custody,
- discharged from hospital or
- cases with no custodial sentence or hospital order, six months after conviction
If a defendant appeals, how long must material be retained for?
Until appeal is concluded
How is unused material disclosed in Crown Court cases?
Disclosure officer prepares a schedule known as MG6C which individually lists the items of unused material
How is unused material disclosed in Magistrates’ Court cases?
Unused material is listed in a streamlined disclosure certificate
What information must the prosecution disclose?
Material
- that has not been disclosed previously to the accused
- which might reasonably be considered capable of undermining the case for the prosecution against the accused
OR
- of assisting the case for the accused
eg evidence that will help the defence is to be disclosed
What further guidance does the Attorney General offer for what information should be disclosed?
- material that may be used in cross-examination
- material that may support submissions to exclude evidence, a stay in proceedings for abuse of process, a court or tribunal finding that any public authority had acted incompatibly with ECHR rights
- material that explains or partially explains accused’s actions
- material that will have a bearing on scientific or medical evidence in the case
Additionally, prosecution must think whether material viewed together may meet standard even if individually they do not
What guidance did the Court of Appeal give in relation to disclosure by the prosecution in complex cases with large a volume of material?
- prosecution must adopt consider and appropriately resourced approach to disclosure
- prosecution must encourage dialogue with defence - assist court in furthering the overriding objective
- law is prescriptive of result, not method of disclosure - prosecution should create own disclosure strategy and involve court and defence
- disclosure process should be subject to robust case management by the judge
- flexibility is critical - constant aim is to make progress
When must the prosecution serve initial details of their case?
No later than the first day of the first hearing
What must be included in the initial details of the prosecution case?
Must provide sufficient evidence for defendant and court to make informed view:
- on plea
- on venue for trial
- for purposes of case management
- for purposes of sentencing
What is the common law duty of disclosure?
Prosecution must still provide advance disclosure of material to the defence if it will assist their early preparation of the case or at bail hearing
When must the prosecution comply with initial disclosure duties?
As soon as reasonably practicable
For a summary trial at the magistrates’ court when should the prosecution serve initial disclosure?
- by date provided by court
- in any event, with sufficient time for trial date to be effective
For Crown Court trial, when should the prosecution serve initial disclosure?
Should serve sufficient evidence in advance of or at PTPH to enable court to case manage effectively without need for further case management
Unless murder or case involving children when further hearing required, then can be done later
Is there prosecution under a continuing duty of disclosure?
Yes - will have to disclose material information after initial disclosure if it comes to light
Are the defence under a duty of disclosure?
Yes - for proceedings in the Crown Court must disclose defence statement
What is the defence statement?
A written statement which sets out the nature of the accused’s defence, including any specific defences they are going to seek to rely on, the facts in issue, alibi and person supporting alibi if one
What are the time limits for a defence statement in the Crown Court?
Must be served within 28 days of date of prosecution complying with its initial duty of disclosure
Can the time limit be extended for defence statement being served in the Crown Court?
Yes - only if application is made within the time limit and if court is satisfied that it would be reasonable to require the defendant to give a defence statement within 28 days
What are the time limits for a defence statement being served in the magistrates’ court?
- defence statement not compulsory in magistrates’ court
- if being served must be served within 10 business days of the prosecution complying with the initial duty of disclosure
What must the defence do if it wishes to call witnesses in either the Crown Court or Magistrates’ Court?
Defendant must disclose to court and prosecution notice indicating:
- D intends to call witnesses at trial
- Name, address, DOB to locate and identify witness
What are the consequences of defence failing to disclose in Crown Court proceedings?
Jury may draw adverse inferences as appear proper against the defendant
Defendant cannot be convicted on adverse inferences alone
Prosecution or co-defendant may comment on such a failure without leave of the court, other than where it relates to point of law where leave is required
What are the consequences of defence failing to disclose in Magistrates’ court?
As no obligation to disclose, no adverse inferences can be drawn for failure
If defence statement is served though, adverse inferences can be drawn if served late or puts forward different defence to what is later relied upon in court
If defence fail to serve a defence statement in either Magistrates’ or Crown Court, what can they not do?
Cannot make application for specific disclosure
Cannot have the benefit of the prosecution reviewing their disclosure obligations in light of the issues set by the defence statement
What does the duty for prosecution to keep disclosure under review involve?
Prosecutors must review disclosure obligations throughout case and in particular after defence statement is served.
Material must be disclosed even if it is disclosed at a late stage in the proceedings
What is an application for specific disclosure?
Application by defence to court where it has reasonable cause to believe that there is prosecution material which should have been disclosed but has not
When can defendant make an application for specific disclosure?
- where they have served a defence statement
- the prosecutor must have either have provided further disclosure in light of defence statement or said no further disclosure is to be made
What must application for specific disclosure detail?
Must describe the material the defendant wants to be disclosed and explain why there is reasonable cause to believe:
- that the prosecutor has the material
- that the material should be disclosed under duty of disclosure
What is the process for the defendant making an application for specific application?
Defendant must make application to court and prosecution describing the material the defendant wants to be disclosed and explain why there is reasonable cause to believe:
- that the prosecution has it
- why material should be disclosed under duty to disclose
Defendant should ask for hearing if one is required and explain why it is needed
Prosecution has 10 business days to respond in writing to any such application
What are the consequences if the prosecution fails to disclose material it should have?
- defence could bring an application to stay the indictment on grounds of abuse of process
- conviction could be quashed as unsafe
- could result in wasted cost order if causes delay or refusal to extend custody time limits
- could potentially result in exclusion of evidence in the case due to unfairness
Are third parties under a duty to disclose material information?
No
If third parties have or might have material capable of undermining the prosecution case or assisting accused’s case, what should be done?
Prosecution must take appropriate steps to obtain it.
What steps should the prosecution take to obtain material capable of undermining the prosecution case or assisting accused’s case from third parties?
- third party should informed of investigation and material in question should be requested
- if request is refused then summons from court should be sought for production of material
What must there be for requests to be made to third parties?
Must be reason to believe that the third party holds relevant material
What is the only reason why material capable of undermining the prosecution case or assisting accused’s case may not be disclosed?
If it falls within the rule of public interest immunity
What must the prosecution do to have material fall within public interest immunity?
If there is a real risk of serious prejudice to an important public interest, prosecution must apply to judge for non-disclosure in public interest.
Court will consider material and may withhold disclosure of such material to the minimum extent necessary to protect public interest
