Disclosure of Evidence Criminal Procedure and Investigations Act 1996 and Code of Practice

Question 1

Failure to Comply

Answer 1

Compliance with the rules of disclosure, by both the defence and prosecution, is essential if the 1996 Act is to have any real value. First, in cases where the defence are obliged to make disclosure to the prosecution, failure to do so may lead to the court or jury drawing such inferences as appear proper in deciding the guilt or innocence of the accused (s. 11(5) of the 1996 Act). Should the prosecution fail to comply with their obligations then an accused does not have to make defence disclosure and no such inference can be made. Secondly, failure by the prosecution to comply with the rules could lead to the court staying the proceedings on the grounds that there has been an abuse of process (s. 10). It could also lead to an action for damages or such other relief as the court sees fit under the Human Rights Act 1998, particularly in relation to Article 6 of the European Convention on Human Rights and the right to a fair trial. Additionally, where the prosecution have not made disclosure on time or fully, a stay on the proceedings or a further adjournment is possible. Even if there has been a failure to comply with disclosure the case will not automatically be stayed and therefore any failings should be brought to the attention of the CPS so that the matter can be considered. In R (On the Application of Ebrahim) v Feltham Magistrates’ Court [2001] EWHC Admin 130 the court stated that:

It must be remembered that it is commonplace in a criminal trial for the defendant to rely on holes in the prosecution case. If in such a case, there is sufficient credible evidence, apart from the missing evidence, which, if believed, would justify safe conviction then the trial should proceed, leaving the defendant to seek to persuade the jury or magistrates not to convict because evidence that might otherwise have been available was not before the court through no fault of the defendant.

Further guidance was provided in R v Brooks [2004] EWCA Crim 3537, a case where the prosecution failed to comply with the disclosure requirements. The Court of Appeal held that if the court was satisfied that the prosecution had deliberately withheld evidence from the court or frustrated the defence, the court did have the power to stay the prosecution. If the court was not so satisfied it would consider whether, despite all that had gone wrong, a fair trial was possible.

Failure to disclose may result in convictions being overturned; for instance in R v Poole [2003] EWCA Crim 1753, the Court of Appeal overturned convictions for murder because the non-disclosure of prosecution evidence influenced the jury’s assessment of the reliability of the evidence of a key eye-witness. In this case the witness gave an account that was false in a material particular. However, the police did not follow up those inconsistencies and they failed to inform the CPS that his evidence was unreliable.

The level of disclosure that is required will be a question of fact in each case. In Filmer v DPP [2006] EWHC 3450 (Admin) the court held that the extent of disclosure required from the prosecution depends on the evidence and issue in a particular case. The prosecution are required to provide sufficient disclosure to enable a defendant to present his/her case. The court went on to say that this has to be the approach otherwise the prosecution would have to second guess every question the defence may want to ask (this is where the defence disclosure becomes relevant, see para. 1.11.11.1).

Question 2

Disclosing Initial Details of the Prosecution Case

Answer 2

This refers to the material that the defence are entitled to have in order to consider whether to plead guilty or not guilty. In some cases, it is not a question of whether the defendant committed the crime but whether the prosecution are in a position to prove the offence and, in order to consider this, the defence are unlikely to agree to plead or decide on the mode of trial without knowing the strength of the prosecution case. It is clearly in the public interest that guilty pleas are entered or indicated as soon as possible (R v Calderdale p. 303↵Magistrates’ Court, ex parte Donahue [2001] Crim LR 141) and often this cannot be achieved unless advanced information has been provided. The need to know as early as possible whether a defendant is going to plead not guilty can be particularly important as there are time limits by which the courts have to set trials and committals. Often these can be delayed because the prosecution have not complied with their disclosure duties.

Ensuring that all defendants receive copies of any initial details of the prosecution case (or any later disclosure) is also important. In R v Tompkins [2005] EWCA Crim 3035 the court held that where there has been non-disclosure at the time a plea had been entered, a defendant who had pleaded guilty should not in any way be in a worse position than a defendant who had pleaded not guilty.

Question 3

Obligations on Prosecution Regarding Disclosing the Initial Details of the Prosecution Case

Answer 3

In the magistrates’ court, Part 8 of the Criminal Procedure Rules 2020 provides that where the offence is one that can be tried in a magistrates’ court the prosecutor must provide initial details of the prosecution case to the court and the defendant as soon as practicable, and in any event no later than the beginning of the day of the first hearing.

For trials at the Crown Court, the defence will receive the majority of the prosecution case through the disclosure of witness statements or depositions. If the prosecution wish to use any additional evidence after committal they must serve this on the defence.

It is suggested that Article 6 of the European Convention on Human Rights supports the need to provide initial details of the prosecution case to the defence in all cases and that this should be done as soon as possible. Article 6(3)(a) states that a person is:

. . . to be informed promptly . . . and in detail, of the nature and cause of the accusation against him;

Article 6(3)(b) states that an accused is entitled to:

. . . have adequate time . . . for the preparation of his defence.

However, the point concerning initial information in summary cases was considered in R v Stratford Justices, ex parte Imbert [1999] 2 Cr App R 276, where the court gave its opinion that Article 6 does not give an absolute right to pre-trial disclosure; it will be a question of whether the defendant can have a fair trial. Clearly, it will be easier to satisfy this test where initial information has been provided to the defence.

This information might also include the following and so consideration should be had to providing this material to the prosecutor so that he/she can forward it to the defence where appropriate (ensuring that the addresses and other details of witnesses and victims are protected):

• a copy of the custody record;
• copies of any interview tape(s);
• a copy of any first descriptions where relevant;
• significant information that might affect a bail decision or enable the defence to contest the allocation hearing (A-G’s Guidelines, para. 78 and CPIA Code, para. 6.5);
• any material which is relevant to sentence (e.g. information which might mitigate the seriousness of the offence or assist the accused to lay blame in whole or in part upon a co-accused or another person);
• statements and/or a summary of the prosecution cases;
• a copy of any video evidence.
  (For the actual disclosure that must be provided to the prosecutor in order to allow the defence to prepare their case, see para. 1.11.9.)

Where a person has made several statements but all the relevant evidence for the prosecution case is contained in one statement, it is only that one statement which needs to be disclosed. In order to comply with disclosing the initial details of the prosecution case the defence need to be either given a copy of the document or allowed to inspect the document (or a copy of it). In R v Lane and Lane [2011] EWCA Crim 2745 one of the witnesses refused to put incriminating evidence into his statement due to fear of repercussions. The police had notified the prosecution of the witness’s increased knowledge, but the prosecution failed to notify the defence that the statement had been a partial account. The Court of Appeal held that the statement was untruthful as it did not disclose all the information that it should have done. The witness should have been told to make a full statement or he should have been abandoned as a witness, but he should never have been allowed to make a partial statement.

The following sections set out the Disclosure Code of Practice issued under the Criminal Procedure and Investigations Act 1996; the latest Code came into effect on 31 December 2020.

Question 4

Aims of the 1996 Act

Answer 4

The aim of the disclosure rules within the Criminal Procedure and Investigations Act 1996 is to make sure that a defendant gets a fair trial and speeds up the whole trial process. This was confirmed by R v Stratford Justices, ex parte Imbert [1999] 2 Cr App R 276, where the court said that the legislation was to try to ensure that nothing which might assist the defence was kept from the accused.

The Act creates an initial duty on the prosecution to disclose with a continuing duty to disclose until the accused is acquitted or convicted or the prosecutor decides not to proceed with the case.

The prosecution must, from the start, consider any material that might undermine the prosecution case or assist the defence (s. 3 of the 1996 Act). It is submitted that this requires the prosecution to consider in more detail the types of defence that might be used at trial. Once the prosecution have provided their initial disclosure the defence in some cases are obliged to provide a defence statement and in other cases this is optional (see para. 1.11.11.1). Once the defence have provided their defence statement it may provide greater focus to the prosecution as to what other unused material may need to be disclosed.

While the duty of disclosure is placed on the prosecutor, the police have a responsibility to assist in this process. It is therefore vital that police officers understand, not only the statutory requirements made of them, but also the extent of their role within the whole disclosure process.

The HMIC report found that police are routinely failing to comply with guidance and requirements when completing and recording data, such as the non-sensitive disclosure schedule (known as MG6C). Many officers submitted schedules that had missing or deficient data and were often ignorant of processes behind sensitive material, such as information for warrants. The inspection found that in 33% of cases the disclosure officer’s report, the MG6E, was either not supplied at all or was wholly inadequate. It is the responsibility of the disclosure officer to comply with the disclosure rules, but it is suggested there is also a supervisory responsibility as well.

Question 5

A criminal investigation is an investigation conducted by police officers with a view to it being ascertained whether a person should be charged with an offence, or whether a person charged with an offence is guilty of it. This will include:

Answer 5

• investigations into crimes that have been committed;
• investigations whose purpose is to ascertain whether a crime has been committed, with a view to the possible institution of criminal proceedings; and
• investigations which begin in the belief that a crime may be committed, for example when the police keep premises or individuals under observation for a period of time, with a view to the possible institution of criminal proceedings;
• p. 306charging a person with an offence includes prosecution by way of summons or postal requisition;
• an investigator is any police officer involved in the conduct of a criminal investigation. All investigators have a responsibility for carrying out the duties imposed on them under this Code, including in particular recording information, and retaining records of information and other material;
• the officer in charge of an investigation is the police officer responsible for directing a criminal investigation. They are also responsible for ensuring that proper procedures are in place for recording information, and retaining records of information and other material, in the investigation;
• the disclosure officer is the person responsible for examining material retained by the police during the investigation; revealing material to the prosecutor during the investigation and any criminal proceedings resulting from it, and certifying that they have done this; and disclosing material to the accused at the request of the prosecutor;
• the prosecutor is the authority responsible for the conduct, on behalf of the Crown, of criminal proceedings resulting from a specific criminal investigation;
• material is material of any kind, including information and objects, which is obtained or inspected in the course of a criminal investigation and which may be relevant to the investigation. This includes not only material coming into the possession of the investigator (such as documents seized in the course of searching premises) but also material generated by them (such as interview records);
• sensitive material is material, the disclosure of which, the disclosure officer believes, would give rise to a real risk of serious prejudice to an important public interest;
• references to prosecution disclosure are to the duty of the prosecutor under sections 3 and 7A of the Act to disclose material which is in their possession or which they have inspected in pursuance of this Code, and which might reasonably be considered capable of undermining the case against the accused, or of assisting the case for the accused;
• references to the disclosure of material to a person accused of an offence include references to the disclosure of material to his legal representative;
• references to police officers and to the chief officer of police include those employed in a police force as defined in section 3(3) of the Prosecution of Offences Act 1985.

Question 6

Criminal Investigation

Answer 6

Section 1 of the Criminal Procedure and Investigations Act 1996 defines in which type of cases the disclosure provisions apply. In reality, this applies to all cases other than those where the defendant pleads guilty at the magistrates’ court. These rules only apply where no criminal investigation into the alleged offence took place before 1 April 1997. If an investigation began before 1 April 1997, then it will be necessary to refer to the common law rules; however, NPCC has stated that the 1996 Act should be followed in all cases when considering disclosure. For those investigations that started after 4 April 2005, the amendments introduced by the Criminal Justice Act 2003 will apply.

Some guidance is given by the case of R v Uxbridge Magistrates’ Court, ex parte Patel (2000) 164 JP 209, as to the time an investigation begins. There it was said that the phrase ‘criminal investigation’ in s. 1(3) of the 1996 Act means that a criminal investigation could begin into an offence before it was committed. This could be so in a surveillance case or where a series of offences was committed, some before and some after the appointed day. Whether in any given case that was the correct view would be a question of fact for the court to determine.

Consequently, this part of the Act also applies to other people, besides the police, who carry out investigations where they have a duty to ascertain whether criminal offences have been committed (e.g. National Crime Agency, HM Revenue and Customs, Department of Work and Pensions investigators). It does not apply to those whose primary responsibility does not relate to criminal offences (e.g. local authorities and schools).

Question 7

Section 1 defines a criminal investigation and states:

Answer 7

(4) For the purposes of this section a criminal investigation is an investigation which police officers or other persons have a duty to conduct with a view to it being ascertained—
(a) whether a person should be charged with an offence, or
(b) whether a person charged with an offence is guilty of it.

Question 8

Disclosure Officer

Answer 8

A disclosure officer can be a police officer or civilian. If not appointed at the start of an investigation, a disclosure officer must be appointed in sufficient time to be able to prepare the unused material schedules for inclusion in the full file submitted to the CPS (CPS Disclosure Manual, chapter 3).

Question 9

Prosecutor

Answer 9

This role is defined by s. 2(3) of the 1996 Act as being ‘any person acting as prosecutor whether an individual or a body’. In other words, the person who will be taking the case to court. On most occasions, this will be the CPS. It would also apply to the Serious Fraud Office or the Data Protection Registrar. In the case of private prosecutions, the prosecutor is obliged to comply with the disclosure provisions of the 1996 Act but does not have to comply with the Code of Practice. The prosecutor is responsible for ensuring that initial disclosure is made to the defence as well as any further disclosure as required under the continuing duty to disclose. The prosecutor should also be available to advise the OIC, disclosure officer and investigators on matters relating to the relevance of material recorded and retained by police, sensitive material and any other disclosure issues that might arise.

Should there need to be an application to the court to withhold material because of public interest (see para. 1.11.9.3), this will be done through the prosecutor.

A more detailed explanation of the roles and responsibilities of the prosecutor are set out in the CPS Disclosure Manual.

Question 10

Relevant Material

Answer 10

The material will be relevant whether or not it is beneficial to the prosecution case, weakens the prosecution case or assists the defence case. It is not only material that will become ‘evidence’ in the case that should be considered; any information, record or thing which may have a bearing on the case can be material for the purposes of disclosure. The way in which evidence has been obtained may in itself be relevant.

As restated in the 2017 HMIC inspection, disclosure of unused material is a key component of the investigative and prosecution process. It should be considered at the point where a criminal investigation commences, continue at the point of charge, and be at the forefront as the case progresses and at every subsequent court hearing. Every unused item that is retained by police and considered relevant to an investigation should be reviewed to ascertain whether its existence is capable of undermining the prosecution or assisting the defence case. If either factor applies, unless certain restrictions apply, it must be disclosed to the defence.

What is relevant to the offence is once again a question of fact, and will not include everything. In DPP v Metten (1999) 22 January, unreported, it was claimed that the constables who had arrested the defendant had known the identities of potential witnesses to the arrest and these had not been disclosed. The court said that this was not relevant to the case as it did not fall within the definition of an investigation in s. 2(1) of the 1996 Act in that it concerned the time of arrest, and not what happened at the time the offence was committed. Paragraphs 5.4 and 5.5 of the Code give guidance on items that might be considered to be relevant material in a case.

Relevant material may relate to the credibility of witnesses, such as previous convictions, the fact that they have a grudge against the defendant, or where a witness is subsequently shown to be unreliable (R v Dunn [2016] EWCA Crim 1392). It might even include the weather conditions for the day if relevant to the issue of identification. It may include information that house-to-house inquiries were made and that no one witnessed anything.

Particularly at the early stages of an investigation (sometimes not until the defence statement is provided outlining the defence case), it may not be possible to know whether material is relevant. If in doubt, it should be recorded and placed on the appropriate schedule of unused material. Throughout the case, investigators and all others involved should continually review the material in the light of the investigation.

Material includes information given orally. Where relevant material is not recorded in any way, it will need to be reduced into a suitable form (CPS Disclosure Manual, chapter 4).

Question 11

General Responsibility of the Disclosure Officer

Answer 11

The disclosure officer creates the link between the investigation team and the prosecutor (CPS) and is therefore very important to the disclosure process. For investigations carried out by the police, generally speaking there is no restriction on who performs this role; however, they must be suitably trained and experienced.

As stated at the start of this keynote the disclosure officer has a responsibility to communicate effectively with the prosecutor ensuring that all the schedules are completed properly and all material is examined to satisfy themselves that there is no further material that should be brought to the attention of the prosecutor.

Question 12

The role and responsibility of the disclosure officer is set out in the CPS Disclosure Manual, chapter 3:

Answer 12

• examine, inspect, view or listen to all relevant material that has been retained by the investigator and that does not form part of the prosecution case;
  
  • create schedules that fully describe the material;
  • identify all material which satisfies the disclosure test using the MG6E;
  • submit the schedules and copies of disclosable material to the prosecutor;
  • at the same time, supply to the prosecutor a copy of material falling into any of the categories described in para. 7.3 of the Code and copies of all documents required to be routinely revealed and which have not previously been revealed to the prosecutor;
  • consult with and allow the prosecutor to inspect the retained material;
  • review the schedules and the retained material continually, particularly after the defence statement has been received, identify to the prosecutor material that satisfies the disclosure test using the MG6E and supply a copy of any such material not already provided;
  • schedule and reveal to the prosecutor any relevant additional unused material pursuant to the continuing duty of disclosure;
  • certify that all retained material has been revealed to the prosecutor in accordance with the Code;
    where the prosecutor requests the disclosure officer to disclose any material to the accused, give the accused a copy of the material or allow the accused to inspect it.

Question 13

Reasonable Lines of Inquiry

Answer 13

An officer who is classed as an investigator must pursue all reasonable lines of inquiry (Code, para. 3.5) and having done so retain all material which is relevant to the case (see para. 1.11.8.1), whether or not it is helpful to the prosecution (Code, para. 5.1). Failure to do so could lead to a miscarriage of justice. In R v Poole [2003] EWCA Crim 1753, Y provided a statement to police in a murder case. It transpired that N had been with Y at the relevant time and this cast doubt over Y’s evidence. The police did not follow up the inconsistencies. The Court of Appeal held that the failure to disclose N’s evidence was a material irregularity which in part led to a successful appeal by the defendant. The investigator also has a responsibility to identify material that could be sensitive and bring this to the attention of the CPS. This need to be proactive was reinforced in R v Joof [2012] EWCA Crim 1475 where the court held that the responsibilities imposed by the Criminal Procedure and Investigations Act 1996 and the A-G’s Guidelines could not be circumvented by not making inquiries. An officer who believed that a person might have information which might undermine the prosecution case or assist the defence could not decline to make inquiries in order to avoid the need to disclose what might be said. Where material is identified steps must be taken to record and retain the material. For information recorded on computers, see ‘Digital Guidance’, chapter 30 of the CPS Disclosure Manual and Annex A to the A-G’s Guidelines.

Question 14

Pre charge Engagement with Suspects or their Legal Advisors

Answer 14

In some investigations it may be appropriate for the officer in charge of the investigation to seek engagement with the defence at the pre-charge stage. This is likely to be where it is possible that such engagement will lead to the defence volunteering additional information which may assist in identifying new lines of inquiry. Pre-charge engagement in these circumstances refers to voluntary engagement between the parties to an investigation after the first PACE interview, and before any suspect has been formally charged. Pre-charge engagement is a voluntary process and it may be terminated at any time. It does not refer to engagement between the parties to an investigation by way of further PACE interviews (A-G’s Guidelines, paras 26 and B3). Annex B of the A-G’s Guideline sets out the process for any such pre-charge engagement.

Pre-charge engagement may take place whenever it is agreed between the parties that it may assist the investigation. The engagement should not, however, be considered a replacement to a further interview with a suspect. Investigators and prosecutors should be conscious that adverse inferences under s. 34 of the Criminal Justice and Public Order Act 1994 are not available at trial where a suspect failed to mention a fact when asked about a matter in pre-charge engagement.

Depending on the circumstances, it may be appropriate for an investigator, the prosecutor, the suspect’s representative or an unrepresented suspect to initiate pre-charge engagement. Where a suspect is not yet represented, an investigator should take care to ensure that the suspect understands their right to legal advice before the pre-charge engagement process commences. Sufficient time should be given to enable a suspect to access this advice if they wish to do so.

When referring a case to a prosecutor, the investigator should inform the prosecutor if any pre-charge engagement has already taken place and should indicate if they believe pre-charge engagement would benefit the case. It should also be noted that the prosecutor may advise the investigator to initiate and carry out pre-charge engagement, or do so themselves (A-G’s Guidelines, Appendix B).

Question 15

This engagement may, among other things, involve:

Answer 15

a. Giving the suspect the opportunity to comment on any proposed further lines of inquiry.
b. Ascertaining whether the suspect can identify any other lines of inquiry.
c. Asking whether the suspect is aware of, or can provide access to, digital material that has a bearing on the allegation.
d. Discussing ways to overcome barriers to obtaining potential evidence, such as revealing encryption keys.
e. Agreeing any key word searches of digital material that the suspect would like carried out.
f. Obtaining a suspect’s consent to access medical records.
g. The suspect identifying and providing contact details of any potential witnesses.
Clarifying whether any expert or forensic evidence is agreed and, if not, whether the suspect’s representatives intend to instruct their own expert, including timescales for this.

Question 16

Material that Undermines the Prosecution Case

Answer 16

Material that undermines the prosecution test will consist mainly of material which raises question marks over the strength of the prosecution case, the value of evidence given by witnesses and issues relating to identification. If officers feel that the material is not relevant to the prosecution case but may be useful to the defence in cross-examination, it may well come within the category of material which undermines the prosecution case. In Tucker v CPS [2008] EWCA Crim 3063, the prosecution did not reveal to the defence a record containing important information as to a possible motive for a witness lying about the defendant’s involvement in the offence. This led to the conviction being overturned. It was clearly material that undermined the prosecution case as it raised questions over the value of the witness’s evidence.

Disclosure of previous convictions and other matters that might affect the credibility of a witness may ‘undermine the prosecution case’ as it may limit the value of the witness’s testimony. This factor may not be apparent at the time but may come to light after the initial disclosure, such as where it becomes known that the witness has a grudge against the defendant. This is one reason why the 1996 Act requires the decision as to whether material undermines the prosecution case to be continuously monitored throughout the case.

Paragraph 5.16 of the CPS Disclosure Manual makes important observations concerning negative results: when making inquiries, ‘negative results can sometimes be as significant to an investigation as positive ones’. It is impossible to define precisely when a negative result may be significant, as every case is different. However, it will include the result of any inquiry that differs from what might be expected, given the prevailing circumstances. Not only must material or information which points towards a fact or an individual be retained, but also that which casts doubt on the suspect’s guilt, or implicates another person.

Question 17

R (On the Application of Ebrahim) v Feltham Magistrates’ Court [2001]

Answer 17

The court stated that the extent of the investigation should be proportionate to the seriousness of the matter being investigated. What is reasonable in a case may well depend on such factors as the staff and resources available, the seriousness of the case, the strength of evidence against the suspect and the nature of the line of inquiry to be pursued. If in doubt it is suggested that the CPS is contacted for guidance.

Question 18

Examples of negative information include:

Answer 18

• a CCTV camera that did not record the crime/location/suspect in a manner which is consistent with the prosecution case (the fact that a CCTV camera did not function or have videotape loaded will not usually be considered relevant negative information);
• where a number of people present at a particular location at the particular time that an offence is alleged to have taken place state that they saw nothing unusual;
• where a finger-mark from a crime scene cannot be identified as belonging to a known suspect;
• any other failure to match a crime scene sample with one taken from the accused.

Question 19

Complaints against Police Officers Involved in a Case

Answer 19

Not only might the credibility of witnesses undermine the prosecution case, but so too might complaints against officers involved in the case, together with any occasions where officers have not been believed in court in the past. In these cases, it will be necessary to decide whether this information should be disclosed to the defence and, if disclosed, in how much detail.

This question is probably best answered by the following extract from advice given to prosecutors by the DPP:

It is, of course, necessary in the first instance for the police to bring such matters to the notice of the prosecutor, but it is submitted that the prosecutor should have a greater element of discretion than with the disclosure of previous convictions. With convictions against prosecution witnesses, disclosure normally follows, whereas in relation to disciplinary findings regard should be had to the nature of the finding and its likely relevance to the matters in issue. Findings which involve some element of dishonesty should invariably be disclosed, while matters such as disobedience to orders, neglect of duty and discreditable conduct will often have no relevance to the officer’s veracity or the guilt or otherwise of a defendant. Certainly, there should be no duty on the prosecution to disclose details of unsubstantiated complaints even though this is a popular type of inquiry from some defence representatives. The imposition of such a duty would only encourage the making of false complaints in the hope that they might be used to discredit an officer in the future.

Professional Standards Departments (PSDs) have final responsibility for the value judgement on whether information relating to misconduct of police officers should be revealed to the prosecutor. This decision must be made on a case-by-case basis; guidance may be sought from the prosecutor. Responsibility to reveal relevant misconduct findings, or criminal convictions or cautions, rests with the police officer concerned. The officer, assisted by the PSD, should ensure that there is a sufficient level of detail on the MG6B to enable the CPS to make an informed decision about disclosure of the information in the proceedings in question (CPS Disclosure Manual, chapter 18).

Some guidance is given by the courts. In R v Edwards [1991] 1 WLR 207 the court held that a disciplinary finding and reprimand of a DCI for countersigning interview notes which had been wrongly re-written in another case should have been disclosed to the defence. R v Guney [1998] 2 Cr App R 242 followed Edwards. In Guney six police officers went to the defendant’s home with a warrant to search for drugs. Three of the officers had formerly been members of a squad which had been subject to ‘considerable internal police interest’. The court held that the defence were not entitled to be informed of every occasion when any officer had given evidence ‘unsuccessfully’ or whenever allegations were made against him/her. In this case, the information should have been disclosed. The court went on to say that the records available to the CPS should include transcripts of any decisions of the Court of Appeal Criminal Division where convictions were quashed because of the misconduct or lack of veracity of identified police officers as well as cases stopped by the trial judge or discontinued on the same basis. The systematic collection of such material was preferable to the existing haphazard arrangement.

If in doubt advice should be sought from the CPS.

Question 20

Third party material can be considered in two categories:

Answer 20

(a) that which is or has been in the possession of the police or which has been inspected by the police;
(b) all other material not falling under (a).

Material which falls into the first category is covered by the same rules of disclosure as any other material the police have. Where police do not have material that they believe may be relevant to the case, para. 3.6 of the Code provides direction.

Question 21

Third Party Material

Answer 21

In the vast majority of cases the third party will make the material available to the investigating officer. However, there may be occasions where the third party refuses to hand over the material and/or allow it to be examined.

If the OIC, the investigator or the disclosure officer believes that a third party holds material that may be relevant to the investigation, that person or body should be told of the investigation. They should be alerted to the need to preserve relevant material. Consideration should be given as to whether it is appropriate to seek access to the material and, if so, steps should be taken to obtain such material. It will be important to do so if the material or information is likely to undermine the prosecution case, or to assist a known defence. A letter should be sent to the third party together with the explanatory leaflet provided in the CPS Disclosure Manual at Annex B.

Where access to the material is declined or refused by the third party and it is believed that it is reasonable to seek production of the material before a suspect is charged, the investigator should consider making an application under sch. 1 to the Police and Criminal Evidence Act 1984 (special procedure material) (CPS Disclosure Manual, chapter 5).

Where the suspect has been charged and the third party refuses to produce the material, application will have to be made to the court for a witness summons. In the magistrates’ court this is covered by s. 97 of the Magistrates’ Courts Act 1980 and in the Crown Court it is covered by ss. 2(2) and 2A to 2D of the Criminal Procedure (Attendance of Witnesses) Act 1965. The third party may still wish to resist the requirement to produce the material and the point was considered in R v Brushett [2001] Crim LR 471 (this was a case that concerned Social Services Department files relating to a children’s home).

The A-G’s Guidelines also deal with materials held by third parties (including government agencies) in paras 26–53.

The CPIA Code and A-G’s Guidelines make clear the obligation on the investigator to pursue all reasonable lines of inquiry in relation to material held by third parties within the UK. Paragraphs 31–33 deal with cases where a government department or another Crown body has material that may be relevant to an issue in the case. Paragraphs 38–44 deal with other domestic bodies that have material or information which might be relevant to the case, such as a local authority, social services department, hospital, doctor, school, provider of forensic services or CCTV operator.

Crown servants have a duty to support the administration of justice and should take reasonable steps to identify and consider such material. If access is denied to relevant material, the investigator or prosecutor should consider the reasons given by the government department or Crown body and what, if any, further steps might be taken to obtain the material. The final decision on further steps rests with the prosecutor. However, other third parties have no obligation under the CPIA 1996 to reveal material to investigators or prosecutors. There is also no duty on the third party to retain material which may be relevant to the investigation and, in some circumstances, the third party may not be aware of the investigation or prosecution. If access to the material is refused and, despite the reasons given for refusal of access, it is still believed that it is reasonable to seek production of the material or information and that the requirements of a witness summons are satisfied (or any other relevant power), then the prosecutor or investigator should apply for the summons causing a representative of the third party to produce the material to court (A-G’s Guidelines, paras 40 and 41).

The obligations under the CPIA Code to pursue all reasonable lines of inquiry apply to material held overseas. Where it appears that there is relevant material, the prosecutor must take reasonable steps to obtain it, either informally or making use of the powers contained in the Crime (International Co-operation) Act 2003 and any international conventions. There is no absolute duty on the prosecutor to disclose relevant material held overseas by entities not subject to the jurisdiction of the courts in England and Wales. However, consideration should be given to whether the type of material believed to be held can be provided to the defence (A-G’s Guidelines, paras 45–53).

In all cases of material held by third parties, where appropriate the defence should be informed of the steps taken to obtain material and the results of the line of inquiry (A-G’s Guidelines, paras 37, 44 and 53).

Question 22

The court considered a number of earlier cases and established some central principles as follows:

Answer 22

• To be material evidence documents must be not only relevant to the issues arising in the criminal proceedings, but also documents admissible as such in evidence.
• Documents which are desired merely for the purpose of possible cross-examination are not admissible in evidence and, thus, are not material for the purposes of s. 97.
• Whoever seeks production of documents must satisfy the justices with some evidence that the documents are ‘likely to be material’ in the sense indicated, likelihood for this purpose involving a real possibility, although not necessarily a probability.
• It is not sufficient that the applicant merely wants to find out whether or not the third party has such material documents. This procedure must not be used as a disguised attempt to obtain discovery.
• Where social services documents are supplied to the prosecution, the prosecution should retain control of such material as part of the disclosure regime. That is envisaged by the rules. It cannot be acceptable to return material to social services to avoid the obligations arising under the rules. In any event, the obligation would arise in relation to the notes taken and retained.
• The obligation laid on the prosecution by statute and rules cannot be avoided by a third party making an agreement with the prosecution that the prosecution will abrogate any duties laid upon it by either common law or statute.
• If circumstances arise where it would be unjust not to allow disclosure of certain other material, so a defendant would not receive a fair trial in the sense that he/she could not establish his innocence where he/she might otherwise do so, then that material must be disclosed.
• The fact that the prosecution have knowledge of the third party material may be a relevant factor to allow the defence access.
• Material concerning false allegations in the past may be relevant material (R v Bourimech [2002] EWCA Crim 2089).
• If the disputed material might prove the defendant’s innocence or avoid a miscarriage of justice, the weight came down resoundingly in favour of disclosing it (R v Reading Justices, ex parte Berkshire County Council (1996) 1 Cr App R 239).

Question 23

R v Alibhai [2004]

Answer 23

the Court of Appeal held that under the Criminal Procedure and Investigations Act 1996 the prosecutor was only under a duty to disclose material in the hands of third parties if that material had come into the prosecutor’s hands and the prosecutor was of the opinion that such material undermined the case. However, the A-G’s Guidelines went further by requiring a prosecutor to take steps pursuing third party disclosure if there was a suspicion that documents would be detrimental to the prosecution or of assistance to the defence. However, in such circumstances, the prosecutor enjoyed a margin of consideration as to what steps were appropriate. The provisions for disclosure are not intended to create duties for third parties to follow. The disclosure duties under the 1996 Act were created in respect of material that the prosecution or the police had and which the prosecution had inspected. Material was not prosecution material unless it was held by the investigator or by the disclosure officer (DPP v Wood and McGillicuddy [2006] EWHC 32 (Admin)).

Question 24

R v Alibhai [2004]

Answer 24

the Court of Appeal held that under the Criminal Procedure and Investigations Act 1996 the prosecutor was only under a duty to disclose material in the hands of third parties if that material had come into the prosecutor’s hands and the prosecutor was of the opinion that such material undermined the case. However, the A-G’s Guidelines went further by requiring a prosecutor to take steps pursuing third party disclosure if there was a suspicion that documents would be detrimental to the prosecution or of assistance to the defence. However, in such circumstances, the prosecutor enjoyed a margin of consideration as to what steps were appropriate. The provisions for disclosure are not intended to create duties for third parties to follow. The disclosure duties under the 1996 Act were created in respect of material that the prosecution or the police had and which the prosecution had inspected. Material was not prosecution material unless it was held by the investigator or by the disclosure officer (DPP v Wood and McGillicuddy [2006] EWHC 32 (Admin)).

Question 25

Contemporaneous Records

Answer 25

The need for contemporaneous records is also required under the Police and Criminal Evidence Act 1984 and if not complied with could affect the admissibility of important evidence (s. 78 of the 1984 Act).

Question 26

Retention of Material

Answer 26

In order to disclose material to the defence, there is a need first to find it and secondly to retain it. Retention of material applies to documents and other evidence, including digital media. Failure to retain material could lead to the prosecution losing the case, particularly where the court considers that its absence will lead to the defendant not being able to receive a fair trial (Article 6 of the European Convention on Human Rights). In Mouat v DPP [2001] EWHC Admin 130 the defendant had been charged with speeding. Police officers had recorded a video of the defendant driving at speed and had shown the video to the defendant prior to charge but had later recorded over it. The defendant contended that he had been intimidated by the unmarked police car being driven only inches from his rear bumper. The policy of the force was to keep videos for 28 days, unless they recorded an offence, in which case they were kept for 12 months. The court held that the police were under a duty to retain the video tapes at least until the end of the suspended enforcement period, during which time the defendant was entitled to consider whether he wished to contest his liability in court.

In deciding what material should be retained in an investigation, consideration should be given to any force orders, what powers there are to seize and retain the said material, as well as the Disclosure Code and the A-G’s Guidelines. Where an investigator discovers material that is relevant to the case, he/she must record that information or retain the material (Code, para. 5.1).

When deciding if the material should be retained the A-G’s Guidelines provide that:

The investigator should also exercise considerable caution in reaching that conclusion. The investigator should be particularly mindful of the fact that some investigations continue over some time. Material that is incapable of impact may change over time and it may not be possible to foresee what the issues in the case will be.
(A-G’s Guidelines, para. 23)

It is important to note that the material itself does not have to be admissible in court for it to undermine the prosecution case. This point was made in R v Preston [1994] 2 AC 130, where it was said that:

In the first place, the fact that an item of information cannot be put in evidence by a party does not mean that it is worthless. Often, the train of inquiry which leads to the discovery of evidence which is admissible at a trial may include an item which is not admissible, and this may apply, although less frequently, to the defence as well as the prosecution.

If, during the lifetime of a case, the OIC becomes aware that material which has been examined during the course of an investigation, but not retained, becomes relevant as a result of new developments, para. 5.3 of the Code will apply. That officer should take steps to recover the material wherever practicable, or ensure that it is preserved by the person in possession of it (CPS Disclosure Manual, chapter 5).

In some of these cases the investigation may well have started some time before the defendant became a suspect. In such cases all the material from the investigation/operation would have to be reviewed to see if it is relevant to the defence case. In cases where there is a surveillance operation or observation point, it may be that the details of the observation point and the surveillance techniques would not be revealed but it would be necessary to retain material generating from it (see para. 1.11.9.3).

Question 27

CCTV

Answer 27

The likelihood of an incident being caught on CCTV can be quite strong, which raises the question as to the responsibility of the police to investigate the possibility of there being a recording and retaining the recording tape. This point was considered in R (On the Application of Ebrahim) v Feltham Magistrates’ Court [2001] EWHC Admin 130. These cases related to the obliteration of video evidence. In coming to its judgment, the court considered a number of previous decisions where the police were not required to retain CCTV evidence. The general question for the court was whether the prosecution had been under a duty to obtain or retain video evidence. If there was no such duty, the prosecution could not have abused the process of the court simply because the material was no longer available, i.e. it was a reasonable line of inquiry (as to whether they were under a duty to obtain the evidence, see para. 1.11.6.2). Ebrahim shows that CCTV footage does not necessarily have to be retained in all cases. R v Dobson [2001] EWCA Crim 1606 followed Ebrahim. Dobson had been convicted of arson with intent to endanger life, his defence being that he was elsewhere at the time. There had been a strong possibility that the route that Dobson claimed to have taken would have been covered by CCTV but it would have depended on which side of the road he had been using and which way the cameras were pointing at the time. Dobson’s solicitors had not asked for the tapes to be preserved at interview and the police confirmed that the possibility of investigating the tapes had been overlooked. The tapes had been overwritten after 31 days. In following the principles set down in Ebrahim, the police, by their own admissions, had failed in their duty to obtain and retain the relevant footage. While there was plainly a degree of prejudice in Dobson being deprived of the opportunity of checking the footage in the hope that it supported his case, that prejudice was held not to have seriously prejudiced his case given the uncertainty of the likelihood that it would assist and the fact that Dobson had equally been in a position to appreciate the possible existence and significance of the tapes. The fact that there was no suggestion of malice or intentional omission by the police was also an important consideration for the court.

Question 28

Initial Disclosure

Answer 28

Under s. 3 of the 1996 Act, all previously undisclosed material that might undermine the prosecution case must be disclosed to the defence. If there is no such material, then the accused must be given a written statement to that effect. This applies to all material in possession of the police or that has been inspected under the provisions of the Disclosure Code of Practice. This therefore requires the disclosure officer to know what material exists and what material has already been made available to the defence. The court in Grant [2015] EWCA Crim 1815 stated that there is corporate knowledge implied by the possession of the relevant information that falls to be disclosed by any arm of the prosecution; the courts will expect the disclosure officer to be aware of any material held or inspected by other officers in the case.

In magistrates’ courts there is now a streamlined procedure in summary cases that are expected to end in a guilty plea, so that a schedule of unused material need not be served in such cases, but that the prosecution should perform its obligations at common law (as set out in R v DPP, ex parte Lee, see para. 1.11.10.2) and provide written confirmation that it has been done.

The prosecution only have to disclose material relevant to the prosecution in question. For instance, surveillance logs concerning another matter would not need to be disclosed (R v Dennis (2000) 13 April, unreported). It is up to the prosecutor to decide on the format in which material is disclosed to the accused. If material is to be copied, s. 3(3) of the 1996 Act leaves open the question of whether this should be done by the prosecutor or by the police. The prosecutor must also provide the defence with a schedule of all non-sensitive material (s. 4(2) of the 1996 Act). This includes all other information in police possession, or material that has been examined by the police other than ‘sensitive material’ (this is disclosed to the prosecutor separately). ‘Sensitive material’ is material which it is not in the public interest to disclose. At this stage, the defence are not entitled to inspect items on the schedule that have not been disclosed (s. 3(6) and (7)).

Material must not be disclosed to the extent that the court concludes that it is not in the public interest to disclose it and orders accordingly or it is material whose disclosure is prohibited by s. 17 of the Regulation of Investigatory Powers Act 2000 unless it falls within the exception provided by s. 18 of the Act.

Question 29

Completing the Schedules

Answer 29

It is important that the schedules themselves are completed fully. Guidance is given by paras 6.8 to 6.11 of the Code and in detail in the CPS Disclosure Manual, chapters 6 to 8. Where appropriate, use should be made of the block listing provisions in para. 6.10 of the Code. It may not be practicable to list each item of material separately. If so, these may be listed in a block and described by quantity and generic title (A-G’s Guidelines, para. A50). The disclosure officer should keep a copy of the schedules sent to the prosecutor, in case there are any queries that need to be resolved and to assist in keeping track of the items listed should the schedules need to be updated (CPS Disclosure Manual, chapter 6).

The disclosure officer should be mindful of the need to demonstrate that he/she has taken all reasonable steps should it transpire that full disclosure had not been made.

The prosecutor is required to advise the disclosure officer of any items on the MG6C that should properly be on the MG6D and vice versa; any apparent omissions or amendments required; insufficient or unclear descriptions of items or where there is a failure to provide schedules at all. In circumstances where the schedules are inadequate, the prosecutor will return them with a target date for resubmission. The disclosure officer must take all necessary remedial action and provide properly completed schedules to the prosecutor. Failure to do so may result in the matter being raised with a senior officer. There may be occasions where schedules need to be edited; the Codes place responsibility for keeping them accurate and up to date on the disclosure officer.

The disclosure officer must provide different certifications in the course of the disclosure process, to cover:

• revelation of all relevant retained material;
• whether material satisfies the disclosure test; and
• whether material satisfies the disclosure test following a defence statement as part of the continuing duty.

The case against each accused must be considered and certified separately (CPS Disclosure Manual, chapter 10).

Question 30

The following items should also be considered when deciding on initial disclosure in cases where the disclosure is in the public interest (that is where they are not ‘sensitive material’):

Answer 30

• records of previous convictions and cautions for prosecution witnesses;
• any other information which casts doubt on the reliability of a prosecution witness or on the accuracy of any prosecution evidence;
• any motives for the making of false allegations by a prosecution witness;
• any material which may have a bearing on the admissibility of any prosecution evidence;
• the fact that a witness has sought, been offered or received a reward;
• any material that might go to the credibility of a prosecution witness;
• any information which may cast doubt on the reliability of a confession. Any item which relates to the accused’s mental or physical health, his intellectual capacity, or to any ill-treatment which the accused may have suffered when in the investigator’s custody is likely to have the potential for casting doubt on the reliability of a purported confession;
  information that a person other than the accused was or might have been responsible or which points to another person whether charged or not (including a co-accused) having involvement in the commission of the offence (CPS Disclosure Manual, chapter 10).

Question 31

Sensitive Material

Answer 31

This is material which the disclosure officer believes it is not in the public interest to disclose. While the general principle that governs the 1996 Act and Article 6 of the European Convention is that material should not be withheld from the defence, sensitive material is an exception to this. In Van Mechelen v Netherlands (1998) 25 EHRR 647, the court stated that in some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6. It should be noted that the court did recognise that the entitlement of disclosure of relevant evidence was not an absolute right but could only be restricted as was strictly necessary. In R v Keane [1994] 1 WLR 746 Lord Taylor CJ stated that ‘the judge should carry out a balancing exercise, having regard both to the weight of the public interest in non-disclosure and to the importance of the documents to the issues of interest, present and potential, to the defence, and if the disputed material might prove a defendant’s innocence or avoid a miscarriage of justice, the balance came down resoundingly in favour of disclosure’.

Decisions as to what should be withheld from the defence are a matter for the court and, where necessary, an application to withhold the material must be made to the court (R v Ward [1993] 1 WLR 619). The application of public interest immunity was considered by the House of Lords in R v H [2004] UKHL 3. In this case, the defendants were charged with conspiracy to supply a Class A drug following a covert police investigation, and sought disclosure of material held by the prosecution relating to the investigation. The prosecution resisted the disclosure on grounds of public interest immunity. The court held that if the material did not weaken the prosecution case or strengthen the defence, there would be no requirement to disclose it. Once material is considered to be sensitive then it should be disclosed only if the public interest application fails (unless abandoning the case is considered more appropriate); before such action is taken there must be consultation between the CPS (Unit Head or above) and police (ACC or above). Such material is not as wide as it seems; for instance it does not mean evidence which might harm the prosecution case. This category is limited and the Code of Practice, at para. 6.12, gives a number of examples of such material. It will be for the disclosure officer to decide what material, if any, falls into this category; guidance is provided in chapters 13 and 34 of the CPS Disclosure Manual.

Paragraph 6.14 of the Code provides examples of sensitive material. Many of these items are included within the common law principles of public interest immunity. The case law in this area will still apply to decisions regarding the disclosure of such material. These groups are not exclusive and the areas most likely to apply will be those concerning the protection of intelligence and intelligence methods. In any consideration as to what should be withheld, the provisions of part II of the Regulation of Investigatory Powers Act 2000 should be referred to. Part II of the Act will make provision, not only for the gathering and recording of intelligence, but also disclosure of any material gained and methods used. Claims to withhold material may be made by parties other than the prosecutor (who would do so on behalf of the police). In some cases, the relevant minister or the Attorney-General may intervene to claim immunity. Alternatively, the claim to immunity may be made by the party seeking to withhold the evidence, either on its own initiative or at the request of the relevant government department.

Guidance is also provided in para. 115 of the A-G’s Guidelines: even where an application is made to the court to withhold material a prosecutor should aim to disclose as much of the material as he/she properly can (by giving the defence redacted or edited copies of summaries).

In deciding whether material attracts public interest immunity the court will have to be satisfied that the material in no way helps the defence or undermines the prosecution case. Where the material related to secret or confidential systems it should not be revealed as this would aid serious criminal enterprise in the future (R v Templar [2003] EWCA Crim 3186).

In applications for public interest immunity, the CPS has an obligation to ensure that all such material is in its possession and the police have a duty to pass the material on (R v Menga and Marshalleck [1998] Crim LR 58).

Care must be taken to safeguard material that is sensitive and keep it separate from other material because if the material subject to a public interest immunity order for non-disclosure is inadvertently disclosed by the prosecution to lawyers for the defendants, those lawyers cannot be ordered not to further disseminate that material to any third party, including their own clients (R v G [2004] EWCA Crim 1368).

The investigator also has a responsibility to identify material that could be sensitive and bring this to the attention of the CPS. Where material is identified steps must be taken to record and retain the material. For information recorded on computers, see ‘Digital guidance’, chapter 30 of the CPS Disclosure Manual and Annex A to the A-G’s Guidelines.

Question 32

Where police consider that material should not be disclosed due to its sensitive nature, the CPS Disclosure Manual chapter 10 should be followed. This states that in order to assist the prosecutor to decide how to deal with sensitive material which the investigator believes may meet the disclosure test, he/she should provide detailed information dealing with the following issues:

Answer 32

• the reasons why the material is said to be sensitive;
• the degree of sensitivity said to attach to the material, i.e. why it is considered that disclosure will create a real risk of serious prejudice to an important public interest;
• the consequences of revealing to the defence:
• the material itself,
• the category of the material,
• the fact that an application is being made;
• the apparent significance of the material to the issues in the trial;
• the involvement of any third parties in bringing the material to the attention of the police;
• where the material is likely to be the subject of an order for disclosure, what police views are regarding continuance of the prosecution;
• whether it is possible to disclose the material without compromising its sensitivity.

Question 33

Informants

Answer 33

The courts recognise the need to protect the identity of informants to ensure that the supply of information about criminal activities does not dry up and to ensure the informants’ own safety. However, there may be occasions where if the case is to continue the identity of an informant will have to be disclosed.

This is particularly so where there is a suggestion that an informant has participated in the events constituting, surrounding or following the crime; the judge must consider whether this role so impinges on an issue of interest to the defence, present or potential, as to make disclosure necessary (R v Turner [1995] 1 WLR 264).

The need to disclose details of informants has been considered by the Court of Appeal in two cases. The first case, R v Denton [2002] EWCA Crim 272, concerned a defendant who was a police informer. The defendant was charged with murder and alleged that he had been told by his police handlers not to tell his lawyers about his status. The court held that there was no duty for the Crown to disclose to the defence, or to seek a ruling from the judge, as to any information regarding an accused being a police informer. On any common sense view, the material had already been disclosed to the defendant, and the Crown had no duty to supply the defendant with information with which he was already familiar. This last point may also be relevant to other situations. The second case, R v Dervish [2001] EWCA Crim 2789, concerned an undercover operation that was commenced after an informant gave information. The court held in this case that the public interest in protecting the identification of an informant had to be balanced against the right of the defendant to a fair trial; if there was material that might assist the defence, the necessity for the defendant to have a fair trial would outweigh the other interests in the case and the material would have to be disclosed or the prosecution discontinued. There had been no such material in this case. In R v Edwards (formerly Steadman) [2012] EWCA Crim 5, a murder case, the prosecution failed to disclose the fact that they were seeking one of the witness’s registration as an informant, and that this witness was willing to give information if he did not receive any additional custodial sentence in respect of the offences with which he had been charged. The court stated that these were factors which should have been made available to the jury in deciding the credibility of the witness. However, in the circumstances of the case, even with full and proper disclosure, the task of assessing this witness’s reliability would have changed neither the landscape of the trial nor the jury’s deliberations upon the evidence. The circumstantial case was compelling, and the verdict was safe.

Where an informant who has participated in the crime is called to give evidence at the trial there would have to be very strong reasons for this fact not to be disclosed (R v Patel [2001] EWCA Crim 2505).

There are strong links between the principles of informants and undercover police officers. In R v Barkshire [2011] EWCA Crim 1885, the Court of Appeal, upholding the appeal, held that recordings and the statement of an undercover police officer contained information which assisted the defence. They showed that the undercover officer had been involved in activities which went much further than the authorisation that he had been given. They appeared to show him as an enthusiastic supporter of criminal activity, arguably, as an agent provocateur. Further, the recordings supported the defendant’s contentions that their intended activities were directed to the saving of life and avoidance of injury, and that they proposed to conduct the occupation in a careful and proportionate manner. This material was pertinent to a potential submission of abuse of process by way of entrapment and in any event had the capacity to support B’s defence.

Question 34

Observation Points and the Johnson Ruling

Answer 34

R v Rankine [1986] 2 WLR 1075, considering previous cases, stated that it was the rule that police officers should not be required to disclose sources of their information, whether those sources were paid informers or public-spirited citizens, subject to a discretion to admit to avoid a miscarriage of justice and that observation posts were included in this rule.

In R v Johnson [1988] 1 WLR 1377, the appellant was convicted of supplying drugs. The only evidence against him was given by police officers, who testified that, while stationed in private premises in a known drug-dealing locality, they had observed him selling drugs. The defence applied to cross-examine the officers on the exact location of the observation posts, in order to test what they could see, having regard to the layout of the street and the objects in it. In the jury’s absence, the prosecution called evidence as to the difficulty of obtaining assistance from the public, and the desire of the occupiers, who were also occupiers at the time of the offence, that their names and addresses should not be disclosed because they feared for their safety.

The judge ruled that the exact location of the premises need not be revealed. The appeal was dismissed; although the conduct of the defence was to some extent affected by the restraints placed on it, this led to no injustice. The jury were well aware of the restraints, and were most carefully directed about the very special care they had to give to any disadvantage they may have brought to the defence. Johnson was applied and approved in R v Hewitt (1992) 95 Cr App R 81 (see also R v Grimes [1994] Crim LR 213).

In Johnson, Watkins LJ at pp. 1385–6 gave the following guidance as to the minimum evidential requirements needed if disclosure is to be protected:

a) The police officer in charge of the observations to be conducted, no one of lower rank than a sergeant should usually be acceptable for this purpose, must be able to testify that beforehand he visited all observation places to be used and ascertained the attitude of occupiers of premises, not only to the use to be made of them, but to the possible disclosure thereafter of the use made and facts which could lead to the identification of the premises thereafter and of the occupiers. He may of course in addition inform the court of difficulties, if any, usually encountered in the particular locality of obtaining assistance from the public.
b) A police officer of no lower rank than a chief inspector must be able to testify that immediately prior to the trial he visited the places used for observations, the results of which it is proposed to give in evidence, and ascertained whether the occupiers are the same as when the observations took place and whether they are or are not, what the attitude of those occupiers is to the possible disclosure of the use previously made of the premises and of facts which could lead at the trial to identification of premises and occupiers.

Such evidence will of course be given in the absence of the jury when the application to exclude the material evidence is made. The judge should explain to the jury, as this judge did, when summing up or at some appropriate time before that, the effect of his ruling to exclude, if he so rules.

The guidelines in Johnson do not require a threat of violence before protection can be afforded to the occupier of an observation post; it suffices that the occupier is in fear of harassment (Blake v DPP (1993) 97 Cr App R 169).

This extended the rules established in R v Rankine [1986] QB 861 and is based on the protection of the owner or occupier of the premises, and not on the identity of the observation post. Thus, where officers have witnessed the commission of an offence as part of a surveillance operation conducted from an unmarked police vehicle, information relating to the surveillance and the colour, make and model of the vehicle should not be withheld (R v Brown and Daley (1988) 87 Cr App R 52).

Question 35

What Satisfies the Test for Prosecution Disclosure

Answer 35

Paragraphs 7.3 to 7.4 of the Code create a catch-all provision and presumably require the disclosure officer to make inquiries of the other investigating officers who have been involved in the case to ensure that all material is included.

However, what needs to be disclosed should be balanced by the A-G’s Guidelines:

The statutory disclosure regime does not require the prosecutor to make available to the accused either neutral material or material which is adverse to the accused….prosecutors should not disclose material which they are not required to, as this would overburden the participants in the trial process, divert attention away from the relevant issues and may lead to unjustifiable delays. Disclosure should be completed in a thinking manner, in light of the issues in the case, and not simply as a schedule completing exercise.

Defence statements are an integral part of the statutory disclosure regime. A defence statement should help to focus the attention of the prosecutor, court and co-defendants on the relevant issues in order to identify material which may meet the test for disclosure.

(A-G’s Guidelines, paras 3, 4 and 121)

There will occasionally be cases where the police investigation has been intelligence-led; there may be a deputy disclosure officer appointed just to deal with intelligence material which, by its very nature, is likely to be sensitive (see para. 1.11.9.3). Where there are a number of disclosure officers assigned to a case, there should be a lead disclosure officer who is the focus for inquiries and whose responsibility it is to ensure that the investigator’s disclosure obligations are complied with. Where appropriate, regular case conferences and other meetings should be held to ensure prosecutors are apprised of all relevant developments in investigations. Full records should be kept of such meetings (A-G’s Guidelines, para. 10).

It should be noted that where material is available to police from a particular source, e.g. local authority records, a decision that some of the material is relevant does not mean that it all has to be disclosed. This point was reinforced by the case of R v Abbott [2003] EWCA Crim 350, where the Court of Appeal held that the defendant was not entitled to blanket disclosure of all the files.

Question 36

Time Period for Initial Disclosure

Answer 36

While there are provisions to set specific time periods by which initial disclosure must be met, none currently exist. Until such time, disclosure at this stage must be made as soon as practicable after the duty arises.

In R v Bourimech [2002] EWCA Crim 2089, the defendant sought disclosure following the service of his defence statement of a previous crime report made by the victim. One day before the trial was scheduled to begin, the crime report relating to that incident was served among other papers on the defence. This report escaped the notice of the defence until the final day of the trial. The court held that the defect in disclosure amounted to unfairness in the proceedings and the court could not be confident that if the victim had been cross-examined in relation to the previous allegation the jury might have been influenced by the credit and credibility of the witness.

In most cases prosecution disclosure can wait until after this time without jeopardising the defendant’s right to a fair trial. However, the prosecutor must always be alive to the need to make disclosure of material that should be disclosed at an earlier stage (R v DPP, ex parte Lee [1999] 1 WLR 1950). Examples include:

• previous convictions of a complainant or a deceased if that information could reasonably be expected to assist the defence when applying for bail;
• material that might enable a defendant to make an application to stay the proceedings as an abuse of process;
• material that might enable a defendant to submit that he/she should only be sent for trial on a lesser charge, or perhaps that he/she should not be sent for trial at all;
• depending on what the defendant chooses to reveal about his/her case at this early stage, material that would enable the defendant and his/her legal advisers to make preparations for trial that would be significantly less effective if disclosure were delayed; for example, names of eye-witnesses whom the prosecution did not intend to use.

It should be noted that any disclosure by the prosecution prior to the application hearing would not normally exceed that required by s. 3 of the 1996 Act.

Question 37

Disclosure by the Defence

Answer 37

The duty on the defence to make disclosure only arises after the prosecution has made the initial disclosure (s. 5(1) of the 1996 Act). This duty falls into two categories: compulsory and voluntary. The disclosure required by the defence is limited to material that they intend to use at trial.

The defence statement should set out the nature of the defendant’s defence, including any particular defences on which he/she intends to rely and particulars of the matters of fact on which the defendant intends to rely; this means the defence will need to disclose a factual narrative of their case. In addition, those issues, relevant to the case, which the accused disputes with the prosecution must be set out with reasons. The defence statement must indicate any point of law (including any point as to the admissibility of evidence or an abuse of process) which the defendant wishes to raise, and any authority on which he/she intends to rely for that purpose (s. 6A of the 1996 Act). This requirement to give reasons is intended to stop the defence going on a ‘fishing expedition’ to speculatively look at material in order to find some kind of defence.

Where the defence case involves an alibi, the statement must give details of the alibi, including the name and address of any alibi witness. In cases where there are co-accused, there is no duty to disclose this information to the other defendants, although this could be done voluntarily.

An alibi for the purposes of the defence statement is defined as evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time, he/she was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission. Where this applies, the defence must provide details including the name, address and date of birth of any witness the accused believes is able to give evidence in support of the alibi, or as many of those details as are known to the accused when the statement is given. Where such details are not known, the statement must include any information in the accused’s possession which might be of material assistance in identifying or finding any such witness (s. 6A(2) of the 1996 Act).

The defence must also give to the court and the prosecutor notice of any other witnesses other than the defendant who will be called to give evidence. If any other witness is to be called then the name, address and date of birth of each such proposed witness, or as many of those details as are known to the accused must be provided. If any of this information is not available the defence must provide any information in their possession which might be of material assistance in identifying or finding any such proposed witness (s. 6C of the 1996 Act), see para. 1.11.11.7.

There may be occasions where the defence statement is allowed to be used in cross-examination when it is alleged that the defendant has changed his/her defence or in re-examination to rebut a suggestion of recent invention (R v Lowe [2003] EWCA Crim 3182).

Question 38

Compulsory Disclosure by Defence (s. 5)

Answer 38

In proceedings before the Crown Court, where the prosecutor has provided initial disclosure, or purported to, the accused must serve a defence statement on the prosecutor and the court. The accused must also provide details of any witnesses he/she intends to call at the trial. Where there are other accused in the proceedings and the court so orders, the accused must also give a defence statement to each of the other accused specified by the court, and a request for a copy of the defence statement may be made by any co-accused.

Once a defence statement has been provided (whether compulsorily or voluntarily), the prosecution must disclose any prosecution material that:

• might be reasonably expected to assist the accused’s defence; and
• has not already been disclosed.

It will be a question of fact whether material in police possession might be reasonably expected to assist the defence case. If the court feels that material that was not disclosed would to any reasonable person have been expected to help the defence case, the case may fail.

The defence statement is likely to point the prosecution to other lines of inquiry. The disclosure officer should share the information with any deputy disclosure officer and the officer in charge of the investigation. Further investigation in these circumstances should be considered and reasonable lines of inquiry followed (CPS Disclosure Manual, chapter 15).
If there is no additional material to be disclosed then the prosecutor must give a written statement to this effect. It is not the responsibility of the prosecutor or the police to examine material held by third parties which the defence have stated they wish to examine (the defence can request this from the third party or apply for a witness summons).

However, there may be occasions where matters disclosed in the defence statement lead investigators to look at material held by third parties as it might impact on the prosecution case. This stage of the disclosure process may require further inquiries prompted by the defence statement. The result of those inquiries may then have to be disclosed because it either undermines the prosecution case or it assists the accused’s defence.

Question 39

Voluntary Disclosure by Accused (s. 6)

Answer 39

In the magistrates’ court, the accused is not obliged to serve a defence statement but may choose to do so, in which case the statutory provisions apply. However, it is a mandatory requirement for the accused to provide details of his or her witnesses. The purpose of s. 6 of the 1996 Act is to allow the defence, in cases where the case is being tried summarily as a not guilty plea, to obtain further disclosure from the prosecution after the initial disclosure. This is only likely to happen where:

• the defence are not satisfied with the material disclosed at the initial disclosure stage or where they wish to examine items listed in the schedule of non-sensitive material;
• the defence wish to show the strength of their case in order to persuade the prosecution not to proceed.

If the defence decide to make a defence statement they must comply with the same conditions imposed on compulsory defence disclosure.

Question 40

Time Period for the Defence Statement

Answer 40

Once the prosecution provides the initial disclosure, the defence have 14 days in respect of summary proceedings, or 28 days in respect of Crown Court proceedings within which the accused in criminal proceedings must give: a compulsory defence statement under s. 5 of the Act; a voluntary defence statement under s. 6 of the Act; or a notice of his/her intention to call any person, other than him/herself, as a witness at trial under s. 6C of the Act (Alibi witness). The court can only grant an extension if satisfied that the accused could not reasonably have given a defence statement or given notification within the relevant period. There is no limit on the number of days by which the relevant period may be extended or the number of applications for extensions that may be made (Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011 (SI 2011/209)).

Question 41

Effect of Failure in Defence Disclosure

Answer 41

If the defence fail to give a defence statement under s. 5 or, where a defence statement is provided, they:

• are outside the time limits;
• set out inconsistent defences in a defence statement or at trial put forward a different defence; or
• at trial adduce evidence in support of an alibi without having given particulars of the alibi in a defence statement, or call a witness in support of an alibi without providing details of the witness or information that might help trace the witness;
  then the following sanctions may apply:
• the court or, with the leave of the court, any other party may make such comment as appears appropriate;
• the court or jury may draw such inferences as appear proper in deciding whether the accused is guilty of the offence concerned (but there must also be other evidence to convict the defendant);
• even if the defence serve the defence statement outside the time limits, the prosecution must still consider the impact of the statement in terms of the need for any further disclosure (Murphy v DPP [2006] EWHC 1753 (Admin)).

Question 42

Continuing Duty of Prosecutor to Disclose (s. 7A)

Answer 42

Section 7A places a continuing duty on the prosecutor at any time between the initial disclosure and the accused being acquitted or convicted or the prosecutor deciding not to proceed with the case concerned, to keep under review the question of further disclosure. In considering the need for further disclosure the prosecutor must consider whether material might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused. If there is any such material, it must be disclosed to the accused as soon as is reasonably practicable. Consideration of what might need to be disclosed could change depending on the state of affairs at that time (including the case for the prosecution as it then stands) and so should be reviewed on a continuing basis (s. 7A(4)).

Material must not be disclosed to the extent that the court concludes that it is not in the public interest to disclose it and orders accordingly or it is material whose disclosure is prohibited by s. 17 of the Regulation of Investigatory Powers Act 2000.

There is a duty on the prosecution to continue to review the disclosure of prosecution material right up until the case is completed (acquittal, conviction or discontinuance of the case).

If the defence are not satisfied that the prosecution have disclosed all they should have, s. 8 of the 1996 Act allows for the defence to apply to the court for further disclosure.

Question 43

R v Tyrell [2004]

Answer 43

In R v Tyrell [2004] EWCA Crim 3279 this responsibility was clearly outlined. The court held that there was an obligation to consider whether there was any material in the hands of the prosecution which might undermine the case against the applicants or might reasonably be expected to assist the disclosed defences. In addition, the Crown had to consider whether there was any material which might be relevant to an issue which might feature in the trial; this clearly required a continuing duty. In this case, the court found that disclosure had been considered many times as the case progressed in relation to a variety of issues as they arose and ensured a fair trial.

Question 44

R (Nunn) v CC of Suffolk Police [2015]

Answer 44

In R (Nunn) v CC of Suffolk Police [2015] AC 225 the court stated that there can be no doubt that if the police or prosecution come into possession, after the appellate process is exhausted, of something new which might afford arguable grounds for contending that the conviction was unsafe, it is their duty to disclose it to the convicted defendant. Simple examples might include a new (and credible) confession by someone else, or the discovery, incidentally to a different investigation, of a pattern, or of evidence, which throws doubt on the original conviction. Sometimes such material may appear unexpectedly and adventitiously; in other cases it may be the result of a re-opening by the police of the inquiry. In either case, the new material is likely to be unknown to the convicted defendant unless disclosed to him. In all such cases, there is a clear obligation to disclose it (para. 138 of the A-G’s Guidelines). The court also considered the A-G’s Guidelines at para. 137 that prosecutors must consider disclosing in the interests of justice any material relevant to sentence, such as information not known to the defendant which might assist him in placing his role in the offence in the correct context vis-à-vis other offenders. There is also a common law duty post-conviction and pending appeal ‘. . . to disclose to the defendant any material which comes to light and might cast doubt on the safety of the conviction’ (R v Gohil and Preko [2018] EWCA Crim 140).

Question 45

Disclosing Material to the Defence

Answer 45

The court can order disclosure of material which the prosecution contend is sensitive. In such cases it may be appropriate to seek guidance on whether to disclose the material or offer no evidence, thereby protecting the sensitive material or the source of that material (e.g. where informants or surveillance techniques are involved).

Forces may have instructions as to providing further copies when requested by the defence in relation to procedures and costs. It is suggested that where copies are provided, some proof of delivery should be obtained.

Question 46

Disclosure of Statements in Cases of Complaints against the Police

Answer 46

Statements made by witnesses during an investigation of a complaint against a police officer are disclosable; however, the timing of the disclosure may be controlled. In R v Police Complaints Authority, ex parte Green [2002] EWCA Civ 389, the Court of Appeal stated that there is no requirement to disclose witness statements to eye-witness complainants during the course of an investigation. The evidence of such complainants could be contaminated and, therefore, disclosure would risk hindering or frustrating the very purpose of the investigation. A complainant’s legitimate interests were appropriately and adequately safeguarded by his/her right to a thorough and independent investigation, to contribute to the evidence, to be kept informed of the progress of the investigation and to be given reasoned conclusions on completion of the investigation. However, a complainant had no right to participate in the investigation as though he/she were supervising it. The general rule was that complainants, whether victims or next of kin, were not entitled to the disclosure of witness statements used in the course of a police investigation until its conclusion at the earliest.

Police complaints and disciplinary files may also fall within sensitive material that does not have to be disclosed (Halford v Sharples [1992] 1 WLR 736). This would not apply to written complaints against the police prompting investigations or the actual statements obtained during the investigations, although immunity may be claimed in the case of a particular document by reason of its contents (R v Chief Constable of the West Midlands Police, ex parte Wiley [1995] 1 AC 274). However, the working papers and reports prepared by the investigating officers do form a class which is entitled to immunity and therefore production of such material should be ordered only where the public interest in disclosure of their contents outweighs the public interest in preserving confidentiality (Taylor v Anderton [1995] 1 WLR 447).

Question 47

Confidentiality

Answer 47

The defence may only use material disclosed to them under the 1996 Act for purposes related to the defence case; any other use will be a contempt of court. Once evidence has been given in open court, however, the material is available for other purposes.