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

Question

Contemporaneous Records

Answer 1

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).

Answer 2

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).

Answer 3

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.

Answer 4

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.

Answer 5

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).

Answer 6

* 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).

Answer 7

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.

Answer 8

* 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.

Answer 9

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.

Answer 10

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).

Answer 11

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.

Answer 12

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.

Answer 13

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).

Answer 14

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.

Answer 15

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.

Answer 16

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)).

Answer 17

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)).

Answer 18

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.

Answer 19

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.

Answer 20

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).

Answer 21

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.

Answer 22

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).

Answer 23

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.

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

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