Disclosure of material and defence statements

Question 1

To who does the statutory regime (governing disclosure of unused material by P & D’s defence case) apply? (CPIA ‘96 Part I)

Answer 1

Applies to crim investigations on/after 1 April 1997

Compulsory re:
- cases sent to CC, beginning w/ arrival of case in CC & ending on conclusion of trial

May also apply to:
Summary Trials in Mags + summary Youth Courts proceedings

Question 2

The Statutory disclosure regime expressly displaces old common law rules except? (2)

Answer 2

(1) Rules re: disclosure in public interest

(2) P disclosure requirements outside scheme (e.g. in connection to bail at early stage, or following conclusion of proceedings)

Question 3

What’s the CPIA staged approached to disclosure?

Answer 3

(1) POs investigating offence required to record & retain all info + material gathered/generated that may be relevant to the investigation

(2) Material relevant to the investigation, but not expected to form part of P case should be provided by police to P for review

(3) P must disclose any unused material which meets statutory test (CPIA 1996, s 3), usually with a schedule of all other material recorded & retained

(4) D, in turn, have duty to inform P of case to be presented at trial

(5) P’s duty continues throughout proceedings & may prompt further disclosure

(6) Following service of defence statement (DS) + any further disclosure (/failure to disclose) from P = D may make further applications for disclosure

Question 4

What are the responsibilities of investigators and disclosure officers?

Answer 4

Investigator:
- any PO involved in conduct of a crim investigation

Officer in charge of the investigation (or officer in the case):
- PO directing investigation, ensuring proper procedure in place for recording info, & retaining records of info/other material

Disclosure officer:

PO responsible for examining material retained by the police during the investigation, prepping schedules & for revealing material to P

Question 5

What’s the duty to record & retain material?

Answer 5

All material which may be relevant to investigation must be recorded in durable/retrievable form & retained by investigator (incl. negative info: e.g. fact that a number of people present at particular place & time saw nothing unusual)

• ‘Relevant to investigation’ = has merely some bearing on offence under investigation / person being investigated / surrounding circumstances of case
• Includes both gathered (e.g. seized docs) & generated (e.g. interview records) material
• But not ancillary items w/ no independent significance (e.g. document duplicates)

Question 6

P has a duty to reveal unused material to P, such as prepared schedules. What are these and what materials is likely to meet the P test for disclosure?

Answer 6

• If case will be heard/likely to be heard in CC – schedule prepared on an MG6C form
• If in Mags & NG plea anticipated – on a streamlined disclosure certificate

Examples of material likely to meet test for P disclosure:
o Records of telephone messages
o Incident logs
o Contemporaneous records of incident
o Custody records
o Previous accounts of complainants/Ws
o Interview records
o Any material casting doubt on reliability of a W or confession
o Any info provided by A indicating an explanation for the offence

• Descriptions of material should be clear & accurate + contain sufficient detail to enable P to make informed decision on disclosure

Question 7

What the specific name of prepared schedule doc to be discoloured for CC and Mags?

Answer 7

CC – MG6C form

Mags & NG plea anticipated – streamlined disclosure certificate

Question 8

What can be classified as sensitive material as part of the disclosure exercise? What’s the procedure?

Answer 8

= where disclosure would give rise to a real risk of serious prejudice to an important public interest (e.g. national security, undercover POs, child W)

• Listed in a separate schedule (or, exceptionally, disclosed to P separately)
• Must contain sufficient info to enable P to decide whether material should be viewed, bearing in mind its confidential nature

Procedure:
1) P can tell Disclosure Officer what is most relevant/important

2) DO should draw P’s attention to any material which might satisfy test for P disclosure + explain why has come to this view (cf. list above)

3) DO must certify to P that to best of his knowledge he has complied w/ Code

NB ‘corporate knowledge’ re: info falling to be disclosed — P duty not made redundant if POs withhold info from counsel / each other (‘the Crown is unitary’): the info may still properly fall to be disclosed

• Thus responsibility ultimately on P to ensure that all material which ought to be disclosed is disclosed to D & thus to satisfy itself that has all relevant material & has been fully instructed as regards disclosure matters; & keep all disclosure decisions under review

Question 9

Does P has a responsibility to review material contained in the schedule(s)?

Answer 9

P duty = all they can to facilitate proper disclosure

• Incl. e.g. probing actions taken by DOs & reviewing/correcting schedules

Question 10

What’s ‘dip sampling’?

Answer 10

‘Dip sampling’ (random review of materials) material can be used to satisfy disclosure duty in practicable/effective manner, if quantity of material to be reviewed would be unmanageable otherwise (though, here, methodology must itself be disclosed)

Where in cases involving large quantities of digital material (e.g. fraud cases)

Question 11

Can P, investigators, suspects & their legal reps can also engage with each other pre-charge?

Answer 11

Any time after 1st PACE interview but before charge — if parties agree it would assist the investigation (‘pre-charge engagement’)]

• Even though statute not yet engaged, common law / A-G Guidelines / CPIA Code may impose additional disclosure requirements on P, in a larger window (i.e. from charge to sentence & post-conviction)

E.g. under CPIA Code, P must disclose, w/ the ‘initial details’, material that might assist D with early prep of case / at a bail hearing, regardless of anticipated plea

Question 12

Disclosure post-charge but prior to statutory obligation of unused material - when does that happen and what must be included?

Answer 12

Unused material as well, at an earlier stage than that required under statute, if (at common law) required by justice & fairness, incl.

(1) material to help D’s application to stay proceedings as abuse of process, or in making a bail app

(2) relevant previous convictions of P Ws

(3) other material to help A prepare for trial (e.g. eyewitnesses P won’t use, or WS that have been withdrawn by P witnesses)

Question 13

Under the statutory test of initial disclosure (s 3 CPIA) - what must P disclose to A?

Answer 13

P must disclose to A:

(1) any P material not already disclosed (NB: used material = already disclosed) which might reasonably be considered capable of:
(a) undermining P case against A, or
(b) assisting A case
*NB: objective test, or

(2) if no disclosable material = P must provide written statement to that effect to A + inform court officer

Question 14

A-G Guidelines expand on what statutory test of initial disclosure (s 3 CPIA) may include. What should P consider?

Answer 14

A-G Guidelines expand on what this may include → P should consider:

(a) use that may be made of material in XX
(b) capacity of material to support submissions that may lead to:
(1) excl. of evidence
(2) stay of proceedings [for abuse of process], or
· (3) finding that public authority has acted incompatibly w/ A’s ECHR rights

(c) capacity of material to suggest (partial) explanation of A’s actions

(d) capacity of material to undermine reliability/credibility of P W

(d) capacity of material to bear on scientific / medical evidence in the case
- incl. material relating to A’s mental/physical health, IQ or ill-treatment whilst in custody

Question 15

What’s not included in the the statutory test: initial disclosure (s 3 CPIA)?

Answer 15

(1) docs created/retained (but no longer held) by A, e.g. emails

(2) docs required for ‘memory refreshing’

Question 16

What is ‘P material’ under statutory test: initial disclosure (s 3 CPIA)?

Answer 16

(1) material coming into P’s possession in connection w/ case,

or

(2) material P has inspected in connection w/ case

Question 17

Once initial disclosure (s 3 CPIA) is satisfied, what’s the procedure for disclosure?

Answer 17

(1) Disclosure Management Document detailing P’s approach & methodology to disclosure required in all CC cases: should be served on court & D at an early stage

• D invited to submit own keywords that should also factor into the doc search that might assist it = balancing act
• In cases involving large amounts of digital material: investigators should also complete an Investigation Management Document which will inform the DMD

(2) How does P ‘disclose’ → either by
▪ (a) providing copy of the material, or
▪ (b) allowing inspection at a reasonable time + place

• NB material must not be disclosed if court has (on P’s application) concluded that disclosure = not in public interest

(3) When P makes disclosure, must also serve on A schedule of unused material given by DO

Question 18

When should the Disclosure Management Document be served?

Answer 18

• Required in all CC cases
• served on court & D at an early stage

Question 19

In what situation is the Investigation Management Document best used?

Answer 19

Used in cases involving large amounts of digital material

Question 20

What’s P’s obligations in summary trials (where NG plea anticipated)?

Answer 20

• Streamlined disclosure certificate (aka schedule) should be used
• Where A is charged with a summary/EW offence & a G plea is considered likely = SDC is not required unless a NG plea is subsequently entered/indicated

Question 21

What are the time limits for disclosure of unused material in CC and MAGS?

Answer 21

CC
- No statutory time limit
- But must be disclosed as soon as reasonably practicable after service of P case

Mags
- Streamlined disclosure certificate must be disclosed to

A either at:

(1) hearing at which NG plea entered, or
(2) ASAP following formal indication from A/legal rep that NG plea will be entered

• If there is a preliminary hearing = court should use as opportunity to impose early timetable for disclosure & keep under review
• Courts should be provided with an up-to-date timetable whenever material changes as a result of difficulties that emerge

Question 22

What’s the effect of P’s Continuing duty to review?

Answer 22

• P under a continuing duty to review & apply s 3 test – any material subsequently decided to meet test must be disclosed to D as soon as practicable

E.g. during trial, P witness gives evidence inconsistent w/ statement made to police: P should disclose statement to D to enable XX

Where court has ruled against disclosure on PI ground = under continuing duty to review whether still in public interest not to disclose

Question 23

Is there any statutory duties on P after service of defence case statement?

Answer 23

Code requires repeat of initial process (i.e. DO review, draw P’s attention to relevant material, reveal any new info, DO certify compliance w/ code)

Question 24

Is there any statutory duties on P after conviction (& before sentence)?

Answer 24

No further statutory duties; but P has common law duty to disclose material not known to D & may be relevant to sentence

Question 25

Is there any statutory duties on P once proceedings complete?

Answer 25

P still under CL duty to consider disclosure of any material that might cast doubt on safety of D’s conviction + make it unless good reason not to

Question 26

Is there any statutory duties on P whilst Pending appeal?

Answer 26

P obliged to disclose material not previously disclosed relevant to an identified ground of appeal

Question 27

Can the defence make application for specific disclosure from P?

Answer 27

NB only if D has served a DS & P has complied / purported to comply / failed to comply w/ procedure for further disclosure (see ‘continuing duty to review’)

• If D has reasonable cause to believe P has not disclosed material that should have been disclosed = may apply for an order for specific disclosure
• Cannot be a blanket request — application must be referable to issues identified in DS

Question 28

What’s classed as ‘P material’ under defence applications for specific disclosure from P?

Answer 28

‘P material’:
▪ (1) material coming into P’s possession in connection w/ case
▪ (2) material P has inspected in connection w/ case, or
▪ (3) material P would be entitled to hold/inspect if requested
▪ [not restricted to material appearing on the schedule provided by the DO]

Question 29

What’s the Defence disclosure duty?

Answer 29

defence duty = reveal case to be presented at trial

D not obliged to provide DS in STs (but if not = cannot make application for specific disclosure)

CC = duty to provide a defence statement following service of P case

Question 30

What’s the content of D’s written statement setting out basis of defence case?

Answer 30

(1) nature of defence

(2) matters of fact on which A takes issue & reasons

(3) particulars of matters of fact on which A intends to rely for defence,

and

(4) points of law which A wishes to take, w/ authorities relied upon

And

(5) particulars of any alibi able to assist (i.e. not necessary that W is able/willing actually to give evidence)
- Name, addresses + DoBs of alibi Ws so far as known
- If unknown, any info A has that might help to ID/locate
- Any change → dealt with through updated disclosure

Question 31

In D’s written statement, they must disclosure particulars of any alibis. What’s the content here?

Answer 31

Particulars of any alibi able to assist (i.e. not necessary that W is able/willing actually to give evidence)
o Name, addresses + DoBs of alibi Ws so far as known
o If unknown, any info A has that might help to ID/locate
o Any change → dealt with through updated disclosure

Question 32

DSs should not simply consist of a general denial of the counts in the indictment accompanied by a statement that D takes issue with any Ws - is this statement true?

Answer 32

Yes

+ where A raises no positive case & requires Crown to prove = still compliant so long as this position is made clear in DS

• LPP & privilege against self-incrimination unaffected

Question 33

What’s the time limit for Defence statement?

Answer 33

MUST be served on court + P within:
- 28 days of P initial disclosure, i.e. initial details (s 3)

Mags: 14 days

Question 34

When can a application for extension for defence statements be made?

Answer 34

Must be made before expiry of time-limit, & include an explanation

• Court will not grant unless not reasonable for A to give DS within 28 days (e.g. D need more time to review P’s initial disclosure)
• No limit to number of applications

Question 35

Separately from DS, D must notify court & P of any Ws they intend to call at trial (other than D & alibi witnesses already notified). What’s the timing and information must D provide? What happens where there’s change of plans to call Ws?

Answer 35

Information:

▪ Name, address, DoBs of Ws so far as known
▪ If unknown, any info that might help to ID/locate

Timing: notice of intention to call W must be given within
▪ Mags – 14 days
▪ CC – 28 days from date of P initial disclosure (s 3)

*Can apply to extend (subject to above requirements for app for extension)

Changes in plans to call Ws ?

• dealt with through amended notice to court & P

NB: These provisions override LP & LPP if such privileges inconsistent with their proper working

Question 36

What is the sanction for failure in providing defence materials available to the court?

Answer 36

Only sanctions available to court = to make adverse comment on the failure in Q, & for the court / jury to be able to draw such inferences as may be proper

Question 37

Where A fails to provide defence materials, can A be convicted solely on basis of such inferences?

Answer 37

No

P / co-A may also comment adversely on defect in disclosure, but leave of court required if involves:

(i) Failure [in DS] to mention point of law (incl. evidence admissibility or abuse of process) or authority to be relied on

(ii) Failure to give notice of / adequately ID a W, or to do so in time

NB:
- Court CANNOT in response exclude evidence or punish for contempt of court

• But if results in extra costs for P = wasted costs order may be appropriate

Question 38

In what situations will A be sanctioned for failure in providing defence materials?

Answer 38

Apply if A:
(1) fails to give DS in CC case
(2) gives DS after expiry of time limit in Mags / CC
(3) sets out inconsistent defences in the DS
(4) puts forward a defence at trial not mentioned in the DS
(5) relies on a matter that should have been mentioned in the DS but wasn’t
(6) gives evidence of alibi, or calls W in support of alibi, w/o inclusion of necessary details in DS
(7) calls a witness w/o inclusion in notice (i.e. w/o giving adequate notification)

Question 39

What’s public interest immunity?

Answer 39

= where material falls within P disclosure duty, but cannot (either fully / at all) be disclosed without risk of prejudice to an important public interest

Approach:
- P should make public interest immunity application to court
- Court may order the material is withheld from disclosure BUT:
· (1) only to min extent necessary to protect public interest in Q, and
· (2) must never imperil the overall fairness of the trial

Question 40

Re: public interest immunity - What’s the practice and procedure of investigators?

Answer 40

• Material which might be made subject of a PI immunity application must be recorded by investigators in a ‘sensitive schedule’

Investigators should specify:
(1) reason why material sensitive
(2) degree of sensitivity
(3) consequences of revealing it to D
(4) significance of material to issues in trial
(5) involvement of 3Ps in bringing material to police’s attention
(6) implications for continuance of P if disclosure ordered
(7) whether possible to disclose material without compromising sensitivity

• Ps should consider possibility of prejudice to PI through direct or indirect (though incremental/cumulative) harm

Question 41

What’s the effect of pre-trial disclosure of third party material?

Answer 41

Ps & investigators must pursue all reasonable lines of inquiry, whether they point towards or away from the suspect

So, P under obligation to obtain material from 3Ps which might be relevant to P case

• Incl. records held by health & education authorities or financial institutions
• If info not volunteered, P can seek witness summons for the production of documents

Question 42

What happens when investigation reveals possibility of relevant material to be held by 3P (but not obtained)?

Answer 42

= 3P must be informed of investigation + invited to retain material in case a request for disclosure is made

NB: there must be some reason to believe 3P holds relevant material

Question 43

What’s ‘Corporate knowledge’ ?

Answer 43

• ‘Corporate knowledge’ operates in respect of material that falls to be disclosed.
• It is sometimes said in this context that the Crown is unitary.
• The fact that the Met does not have the information does not mean that it is not disclosable.
• Material in the hands of any police force can become disclosable.

Question 44

The prosecutor has a duty to identify the material that is likely to be most relevant and important and to guide the disclosure officer towards that material - is this statement true?

Answer 44

Yes

In Olu [2010] EWCA Crim 2975, the Court of Appeal said that it is the task of the prosecutor to identify the issues and to direct the disclosure officer towards what is likely to be most relevant and important.

Question 45

What document should the Disclosure Officer provide at first hearing in Mags to a NG plea?

Answer 45

• The DO should prepare a simplified disclosure schedule of unused material.
• The simplified schedule should be served on A or A’s representative at the first hearing.
• Governed by CPIA s.3
• Must be served ASAP
• The streamlined disclosure certificate should be served at the hearing where NG plea is entered, or as soon as possible after the accused formally indicates that a NG plea will be entered at the hearing.
• Unused Material should be served on D as soon as practicably possible after NG plea.

Question 46

The prosecutor must serve on the defence all non-sensitive unused material that passes the test for disclosure as soon as is reasonably practicable after the PTPH - is this statement true?

Answer 46

S.13 of the CPIA 1996 requires that all non-sensitive unused material that passes the test for disclosure is served on the defence as soon as is practicably possible after copies of the documents containing the evidence on which the charge or charges are based are served on the accused.

• In this case that means as soon as is practicably possible after the PTPH. The schedule of non-sensitive unused material should be served at the same time as the disclosable unused material.

Question 47

Outside the scheme of disclosure set out in the CPIA 1996, there can be circumstances in which fairness requires that some unused material is served on the defence sooner than is required by the Act. What are these? (5)

Answer 47

1) Material that might assist the defence in making a bail application

2) Material that might assist the defence in making an application to stay the proceedings for abuse of process.

3) Relevant previous convictions of prosecution witnesses.

4) Witness statements that have been withdrawn by prosecution witnesses.

5) Witness statements from eye-witnesses on whose evidence the prosecution do not intend to rely.

Question 48

What is the prosecutor required to serve on the defence? (might reasonably be considered capable)

Answer 48

All previously undisclosed non-sensitive material that might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused.

Question 49

In considering whether a given piece of material passes the test in section 3, which of the following should a prosecutor take into account?

Answer 49

1) the use that might be made of the material in cross-examination

2) its capacity to support submissions that could lead to the exclusion of evidence

3) its capacity to support submissions that could lead to a stay of proceedings

4) its capacity to support submissions that could lead to a finding that any public authority had acted incompatibly with the accused’s rights under the ECHR.

5) its capacity to suggest an explanation or partial explanation of the accused’s actions

6) the capacity of the material to have a bearing on scientific or medical evidence in the case

7) whether the material relates to the physical or mental health of the accused

8) whether the material relates to any ill-treatment that the accused may have suffered in custody

Question 50

When does A’s ability to male a s.8 CPIA application arrises? (disclosure of not disclosured materials)

Answer 50

ONLY IF A has served a defence statement.

• This is the case in both CC & MC.
• The subject matter of the application need not be on the schedule. If there were a rule that only material on the schedule could be ordered to be disclosed, the prosecution would be able to avoid the effect of the legislation by simply leaving items off the schedule.