Disclosure of Material and Defence Statements Flashcards
What governs disclosure of unused material?
CPIA 1996 ss.1-21 and s.23
What spurred the creation of statute to supplement common law rules on disclosure?
Miscarriages of justice in case law such as in Ward [1993]
What is the relationship between CPIA and common law?
CPIA displaces the common law although that remains a reference point.
What does CPIA 1996 stand for?
Criminal Procedure and Investigations Act.
Outside of indictments where else does the CPIA apply?
CPIA also applies to summary trials including youth court where defendant pleads not guilty.
When is the CPIA framework compulsory?
In all trials on indictment at the crown court.
What is the essential consideration of disclosure for a prosecutor?
Whether or not disclosure of any material to the defence is required in accordance with the interests of justice and fairness.
H [2004]?
Prosecution disclosure is a requirement of basic fairness.
What is basic fairness in disclosure procedure?
Any material held that weakens the prosecution’s case or strengthens Ds - IF NOT RELIED UPON as part of the formal case - should be fully disclosed to the defence.
What should be noted about the rule of fairness throughout disclosure?
Fairness does not require the same level of material disclosure at each stage of trial.
What format does disclosure under CPIA take?
Disclosure under CPIA is broken into 6 stages.
What is the 1st stage of disclosure under CPIA?
A statutory duty for police to record and retain all info and material gathered or generated.
What is the 2nd stage of disclosure under CPIA?
Police provide material relevant to the investigation but not expected to form part of the case to the prosecution for review.
What is the 3rd stage of disclosure under CPIA?
Prosecution apply the s.3 CPIA test and must disclose all material the meets the test with a schedule of all other retained information
What is the 4th stage of disclosure under CPIA?
Defence have a duty to inform the prosecution of the case which they intend to present at trial.
What is the 5th stage of disclosure under CPIA?
Throughout proceedings, prosecution remain under a duty to disclose anything that meets the s.3 test
What is the 6th stage of disclosure under CPIA?
Following service of defence statement and any further disclosure, accused may make further applications for disclosure.
What are the three amendments of CJA 2003 not yet made to CPIA?
Defence disclosure to co-accused; updated disclosure by defence; notification of expert’s names instructed by defence.
What and who does the CPIA Code govern?
CPIA Code governs responsibilities of investigators or non-police officials conducting criminal investigations.
How does CPIA define a criminal investigation?
Criminal investigation is conducted by police officers… to ascertain whether a person should be charged with an offence or whether a person charged with an offence is guilty.
Define investigator per CPIA?
Any police officer involved in the conduct of a criminal investigation.
Define disclosure officer per CPIA?
The person responsible for examining material retained by police and giving material to the prosecutor.
Define officer in charge per CPIA?
The police officer responsible for directing a criminal investigation and all records of material etc.
Who is at the centre of disclosure obligations under CPIA?
Not a lawyer. The disclosure officer.
Where can you find the CPIA code of practice?
s. 23(1) CPIA 1996
CPIA Code para 4.1?
Investigators must record all material which may be relevant including negative information (e.g. absence from a scene).
CPIA Code para 2.1?
Material (gathered and generated) is relevant to an investigation when it has some bearing on any offence, person, or on the circumstances of the case.
What are examples of material that must be retained?
Crime reports, incident reports, police notebooks, final versions of witness statements and their drafts where they differ; interview records; expert reports; anything re: reliability of confession or witness.
CPIA Code para 6.2?
Retained material that may be relevant but the disclosure officer doesn’t believe will form part of Prosecution must be listed on a schedule.
What is form MG6C?
Unused material disclosure schedule for crown court cases.
Define sensitive material per CPIA?
Material which the investigator believes would give rise to a real risk of serious prejudice to an important public interest if it were to be disclosed.
What are examples of sensitive material that should be scheduled separately?
Anything related to national security; informants and under cover officers; policing methods; child witness material (e.g. social services documents).
What are examples of material that would be put on the unused schedule?
Records of communication; incident logs; police records of the incident; custody records; previous accounts complaints or witnesses; interview records; info on reliability of witnesses.
CPIA Code para.61?
Descriptions in non-sensitive schedules should be clear and accurate with sufficient detail to enable prosecutors to make informed decisions.
CPIA Code para.69?
Sensitive schedules must have information to help prosecutor decide whether any confidential material should be viewed by others.
What is the investigator’s duty for disclosure?
Investigators must draw the prosecution’s attention to any material which might satisfy the test for disclosure.
CPIA Code para 7.4?
Investigators should provide copies of material to prosecution when requested including anything related to accused’s or witnesses’ reliability.
Grant [2015]?
Prosecution duty to disclose does not become redundant if officers without info from counsel or one another.
What is a disclosure officer’s final duty?
To certify that to the best of their knowledge and belief the duties imposed under the code have been complied with.
How do prosecutors do their disclosure duty?
By applying the statutory test in s.3 to assess the need to disclose underlying material to defence.
What do AG guidelines say about prosecutor’s disclosure duties?
They must do all they can to facilitate disclosure. Raise concerns of inadequate inspection; reviewing info; providing investigator with defence statement; challenge inadequate defence statements.
Olu [2010]?
It is the task of the prosecutor to identify the issues in the case and for the disclosure officer to act under prosecutor’s guidance based on this.
R [2015]?
In long and complex fraud cases 5 rules for large quantities of digital material should be followed.
What is the 1st rule for large volumes of digital material (in fraud)?
Prosecution must be in driving seat at stage of primary disclosure.
What is the 2nd rule for large volumes of digital material (in fraud)?
Prosecution must encourage dialogue and prompt engagement with defence.
What is the 3rd rule for large volumes of digital material (in fraud)?
The law prescribes the result of disclosure, not the method by which the process should operate.
What is the 4th rule for large volumes of digital material (in fraud)?
The process of disclosure should be subject to robust case management by the judge
What is dip sampling?
A random review of a sample of materials to determine if police are following the correct procedures and taking an appropriate approach
What is the 5th rule for large volumes of digital material (in fraud)?
Flexibility is critical.
Alongside dip sampling, what other practice did the court endorse in R [2015]?
Use of search tools where the quantity of material to be reviewed would otherwise be unmanageable are permitted.
What must be noted about dip sampling and search tools?
Prosecution should always disclose the methodologies used for these practices.
CPIA Code para. 82?
Defence have a duty to engage with prosecutor at an early stage to aid understanding about defence case and any issues for trial.
What is the scheme of pre-charge engagement?
AG guidelines of how representatives and investigators may enter into discussions about an investigation at any time after first interview and before charge. This is to narrow issues and inquiry lines.
What are the rules of pre-charge engagement between parties?
Pre-charge engagement is voluntary and can be terminated at any time. It is not a replacement for further interviewing.
What might be discussed in a pre-charge engagement?
Giving suspect opportunity to comment; asking suspect if aware of digital material; agreeing on key word searches; consent to medical records; identification of potential witnesses; agreement on expert or forensic evidence.
CPIA Code para. 15?
pre-charge engagement should cease where prosecution or investigators believe it is being used to frustrate or delay an investigation.
What should be noted about disclosure at pre-charge engagement?
Since PCE takes place before any proceedings, statutory disclosure rules don’t apply. BUT disclosure of unused materials must be considered so the suspect is not misled about the strength of prosecution case.
What is the relationship between disclosure times and pleas?
Disclosure of initial details that might assist defence with preparation of case or bail hearing must occur regardless of plea.
ex Parte Lee [1999]?
There are circumstances where it’d be helpful for defence to know of unused material at an earlier stage.
e.g. convictions of alleged victim; material to help stay proceedings or aid the accused’s case e.g. unused witnesses.
Define ‘prosecution material’?
Material in the possession of prosecution in connection with the case or that they’ve inspected in connection with the case.
What is the s.3 test for disclosure?
Whether the unused material is reasonably considered capable of (a) undermining prosecution case (b) assisting accused’s case.
What sort of test is s.3?
s.3 test for disclosure is an impartial and objective test. The standard is met if either case is more likely to not/fail with material in question.
Barkshire [2011]?
s. 3 test extends to anything the prosecution has that might undermine confidence in their evidence or provide support to D. e.g. if it raises a new issue in case.
H [2004]?
s. 3 doesn’t require disclosure of unused material neutral in effect or adverse to the accused (either because it strengthens P or weakens D).
Why is proper disclosure processing so important?
Failure to disclose material to the defence remains the biggest single cause of miscarriage of justice.
How many factors must the prosecutor bear in mind when applying s.3?
5
What is the 1st factor prosecutors should consider when applying s.3?
What use might be made of the material in cross-examination.
What is the 2nd factor prosecutors should consider when applying s.3?
The material’s capacity to support submissions that could lead to exclusion of evidence, JR, or a stay of proceedings
What is the 3rd factor prosecutors should consider when applying s.3?
The material’s capacity as a full or partial explanation of the accused’s conduct.
What is the 4th factor prosecutors should consider when applying s.3?
The material’s capacity to undermine the reliability or credibility of a prosecution witness.
What is the 5th factor prosecutors should consider when applying s.3?
The capacity of the material to have a bearing on scientific or medical evidence in the case.
CPIA Code para. 89?
Material relating to accused’s mental or physical health, intellectual capacity or ill treatment almost always should be disclosed.
What is a Disclosure Management Document?
A document produced and updated throughout trial by prosecution. Served on D and court outlining strategy and approach (e.g. compliance, timescales, parties involved) to disclosure.
CPIA s.3(3)?
A prosecutor may disclose material to D by either providing a copy of material or allowing inspection at a reasonable time and place.
What disclosure documentation is required in summary trials?
Summary trials should use a streamlined disclosure certificate for not-guilty pleas.
When isn’t a disclosure document needed?
When accused is charged with a summary or either way offence and is likely to plead guilty … though if this changes one must be produced.
What summary or either way cases might be suitable for extra disclosure documents?
substantial or complex material, digital material, international inquiries, re-offending.
What shouldn’t be forgotten about disclosure in magistrates court?
A prosecutor still has common-law duties, and so they may still be required to disclose outside the s.3 test.
What is the time limit for disclosure of unused material at CC?
There’s no time limit, but disclosure must happen as soon as practicable after the happening of a particular event.
What is the time limit for disclosure of unused material at MC?
In magistrates the disclosure certificate must be given at plea before venue NG or as soon as possible following formal indication from accused that they will plead NG.
Should disclosure be discussed at first hearing?
Yes, if there’s a preliminary hearing the judge should impose a timetable for disclosure and keep P and D under review from then on.
CPIA s.7A?
Prosecutor remains under a continuing duty to review questions of disclosure applying essentially the s.3 test.
What is the exception to a prosecutor’s continuing duty to review?
If while still ongoing trial prosecution finds material that may assist D or hinder P but it is against the public interest to share it.
What should be immediately done after receiving defence statement?
After service of defence statement, the process of initial process of disclosure should be carried out again by prosecutor and investigators.
What is a common law disclosure obligation after conviction?
There is a common law duty between conviction and sentencing to disclose any material not known to D that may be relevant to sentence (e.g. context with co-offenders)
What is the duty of disclosure in regards to appeals?
Pending an appeal, the prosecution are obliged to disclose any material not previously disclosed relevant to an identified ground of appeal.
What provision governs any disclosure after initial application of s.3?
s.7A CPIA 1996
CPIA s.8?
After serving a defence statement and whether or not prosecution have shared, an accused may apply for an order for disclosure.
What is is the intent of CPIA s.8?
Applications for orders of disclosure should not be blanket. One can only be made if there’s an adequate defence statement.
What must an application for an order of disclosure entail?
The material subject to the application and why there’s reasonable cause to believe the prosecutor has it, and why it meets the test for disclosure.
CPIA 1996 s.5?
Once the prosecution case is served at CC defence statement must be given to court and prosecution.
What 4 things must be included in a defence statement at CC?
Nature of defence including any particular defences; facts in contention; facts relied upon; points of law relied upon.
How is the defence’s duty of disclosure different from prosecutions?
Defence only have a duty to reveal the case prevented at trial, not also any unused material.
How detailed should a defence statement be?
A general denial is inadequate, but not raising a positive case and simply rebuking the prosecution with a clear statement is enough.
Judicial Disclosure Protocol para. 17?
Judges expect a defence statement to contain a clear and detailed exposition of the issues of fact and law.
What is the rule with alibis in defence?
If defence statement contains an alibi, particulars (DOB, address, names) of witnesses, or whatever is known must be included in the statement.
Define alibi evidence?
evidence tending to show that … accused … was not or was unlikely to have been at the place where the offence is alleged to have been committed at time of its alleged commission.
What is the rule for defence use of witnesses?
Defence must notify court and prosecutor, separate from their statement, of any witnesses they intend to call.
By when must defence notify their intention to call a witness?
D must give notice about witnesses within 14 days (summary) and 28 days (indictable) from the date prosecution comply with s.3 CPIA. This can be extended where necessary.
What is the role of a defence statement in summary trials?
No obligation to provide statement in summary trials, but without one, accused can’t apply for order to disclose. If statement is provided it must be done within 14 days of prosecution’s initial disclosure.
When may the court extend defence notification and statement time limits?
On application by accused, where it would be unreasonable to require a statement or notification to be given within the stated time (14/28 days).
What should an application for extension of statement or notification include?
Application for extension should be made within the relevant period, specify the grounds its made on, state the number of days requested of extension.
How many circumstances regarding materials are there where D might get sanctioned?
s.11 CPIA lays down 9 scenarios for failure in defence disclosure which lead to sanctions.
What are circumstances where s.11 sanctions apply?
Failure to give defence statement; failure to do so in the time limit; failure to give an updated statement; to supply required documents; use of inconsistent defences; use of anything at trial not disclosed in statement (including witnesses points of law and fact).
What is a consequence of s.11 apart from sanction?
Under s.11, if there are deficiencies in defence disclosure the court and jury may draw inferences on guilt of accused, but cannot convict solely on this basis.
Rochford [2010]?
A failure to amend or provide a defence statement after direction to do so is not contempt of court.
R (Tinnon) [2009]?
Alibis cannot be ruled inadmissible because not included in a defence statement.
What is the appropriate sanction for non-compliance with s.11 CPIA?
Adverse comment and for the court or jury to be able to draw inferences as may be proper. Where appropriate, wasted cost order.
What is the public interest rule of disclosure?
Courts may rule material to be withheld from disclosure to the minimum extent necessary to protect public interest and not impede justice. The common law rules apply (CPIA s.21)
What is in a sensitive schedule?
Material that’s subject of a public interest immunity application, reasons why, degree of sensitivity and consequences of revealing, use of material at trial and involvement of 3rd parties.
Joof [2012]?
The obligation to make disclosure can’t be avoided by declining to make an inquiry that might produce disclosable material.
What records count as 3rd party material?
Health, education, and financial institution documents.
What must 3rd parties retaining relevant material be informed of?
3rd party must be informed of the investigation and invited to retain the material in case a request for disclosure is made.
How is 3rd party material disclosure obtained?
Unless volunteered, issue a witness summons for documents under CPA 1965 s.2A.
