Disclosure of unused material and defence statements. Investigators duty to retain unused material etc Flashcards
The Statutory Regime and the Common Law
The regime is compulsory in relation to cases sent to the Crown Court to be tried on indictment. The statutory duties begin with the arrival of the case (by whatever route) in the Crown Court (s. 1(2)) and end with the conclusion of the trial, whether by conviction, acquittal, or the discontinuation of proceedings (s. 7A(1)(b)).
The regime also applies to any summary trial, including those in the youth court, where the defendant has pleaded not guilty (s. 1(1)). Disclosure obligations also now exist in relation to cases expected to be suitable for summary trial in which a not guilty plea is anticipated.
That the position at common law remains relevant and that circumstances may arise in which a prosecutor may be required to disclose material to the defence outside the scheme of the CPIA 1996.
The right of a defendant to have adequate time and facilities to prepare the defence is also expressly protected by the ECHR.
The essential consideration for a prosecutor is whether disclosure of any material to the defence is required in accordance with the interests of justice and fairness.
Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence. Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure. The golden rule is that full disclosure of such material should be made.
It is important to note that while the principle of fairness informs the duty of disclosure at all stages of proceedings, it does not follow that fairness requires the same level of disclosure at each stage.
The legislative regime under the CPIA 1996 envisages a staged approach to the disclosure of unused prosecution material and the defence case:
(a) A statutory duty obliges police officers investigating an offence to record and retain all information and material, gathered or generated, that may be relevant to the investigation.
(b) Material which is relevant to the investigation but is not expected to form part of the prosecution case should be provided by the police to the prosecutor for review
(c) The prosecution must apply the statutory test in the CPIA 1996, s. 3, to that material and must disclose any material meeting that test, usually together with a schedule of all the other material recorded and retained (separate obligations apply as regards material which is intended to be used).
(d) The defence, in turn, have a duty to inform the prosecution of the case which they intend to present at trial.
(e) The prosecution are, throughout proceedings, under a duty to disclose material which meets the statutory test for disclosure.
(f) Following service of the defence statement and any further disclosure (or a failure to make further disclosure), an accused may make further applications for disclosure.
The CPIA 1996 provides for applications to be made to the court in circumstances where there is a dispute about whether the prosecution should disclose certain unused material and there are sanctions laid down for a defendant who fails to provide details of the case on a timely basis and/or provides false or inconsistent information
Commencement Dates
The disclosure provisions of Part I of the CPIA 1996 apply to any alleged offence for which a criminal investigation began on or after 1 April 1997.
Investigation Stage
The CPIA Code applies to all criminal investigations carried out by police officers and, under s. 26, persons other than police officers charged with the duty of conducting criminal investigations.
definition of a criminal investigation:
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:
— 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.
Responsibilities of Investigators and Disclosure Officers
The CPIA Code sets out the functions of individuals within a criminal investigation and their responsibilities in the disclosure process (albeit that different functions may be performed by the same individual).
certain key roles are notable, namely:
an ‘investigator’ — any police officer involved in the conduct of a criminal investigation;
a ‘disclosure officer’ — the person responsible for examining material retained by the police during the investigation and for revealing material to the prosecutor;
‘officer in charge of an investigation’ — the police officer responsible for directing a criminal investigation, including ensuring that proper procedures are in place for recording information, retaining records of information and other material in the investigation
The CPIA Code emphasises the need to retain clear records of the identities of the persons performing these roles; that they are carried out by suitably experienced individuals, independent of the investigation; and that the investigative process is tailored to the circumstances of each case.
Notably, the CPIA Code puts a police officer (the disclosure officer) at the centre of the disclosure process, as opposed to a qualified lawyer.
Duty to Record and Retain Material
Investigators must record, in a durable or retrievable form, all material which may be relevant to the investigation and which is not already recorded. This obligation to record includes negative information, e.g., the fact that a number of people present at a particular place and time saw nothing unusual.
The investigator is also responsible for retaining all material obtained in a criminal investigation that may be relevant to the investigation.
What amounts to material that is ‘relevant to an investigation’ is widely drawn. That material will fall within this category if it appears to an investigator or disclosure officer that it has merely some bearing on any offence under investigation or any person being investigated, or on the surrounding circumstances of the case. Thus, material is to be considered potentially relevant unless it is incapable of having any impact on the case.
‘Material’ includes material gathered in the course of the investigation (e.g., documents seized in the course of searching premises) and generated by the investigation (e.g., interview records).
The duty to retain material will include, for example, the following categories of material: crime reports, including crime report forms, relevant parts of incident report books and police officers’ notebooks; final versions of witness statements; draft versions of witness statements where their content differs from the final version; interview records (written or taped); expert reports and schedules; any material casting doubt upon the reliability of a confession; and any material casting doubt on the reliability of a witness.
The duty to retain material does not extend to items purely ancillary to the above categories which possess no independent significance, such as duplicates of documents.
Duty to Reveal Material to the Prosecutor
There is a procedure whereby retained material which may be relevant to an investigation, but which the disclosure officer believes will not form part of the prosecution case, must be listed on a schedule. The obligation to prepare a schedule arises in all cases that will be heard, or are likely to be heard, in the Crown Court and all cases in the magistrates’ court where the accused is likely to plead not guilty.
In Crown Court cases, the disclosure officer must prepare a schedule on a form which lists such retained material.
In magistrates’ court cases where the accused is likely to plead not guilty, a streamlined disclosure certificate is prepared.
It is these schedules which the prosecutor will review when making decisions as to whether material is to be disclosed to the defence, applying the relevant statutory test.
A list of material identified as likely to include information which meets the test for prosecution disclosure Such material includes: records of telephone messages, incident logs, contemporaneous records of the incident (such as crime reports and crime report forms, police notebook entries, records of actions carried out by officers and CCTV footage), custody records, previous accounts of complainants or witnesses, interview records (written or taped) and any material casting doubt on the reliability of a witness.
Any ‘sensitive material’ should be listed in a separate schedule or, exceptionally, disclosed to the prosecutor separately. Sensitive material is defined as 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.
Examples of such material, ranging from material relating to national security to material given in confidence, and includes material relating to informants, undercover police officers, premises used for police surveillance, techniques used in the detection of crime, and material relating to child witnesses (e.g., material generated by a local authority social services department).
Descriptions by disclosure officers in non-sensitive schedules should be clear and accurate and must contain sufficient detail to enable the prosecutor to make an informed decision on disclosure.
Sensitive schedules must contain sufficient information to enable the prosecutor to decide whether the material should be viewed, bearing in mind its confidential nature.
An investigator should draw the prosecutor’s attention to any material which might satisfy the test for prosecution disclosure and must give the prosecutor a copy of any material falling within certain categories in the CPIA, including information provided by an accused which indicates an explanation for the offence and any material relating to the reliability of a confession or a prosecution witness.
The Court of Appeal has observed that the prosecution duty to disclose is not rendered redundant if officers withhold information from counsel, or if officers withhold information from one another.
At the conclusion of a process a disclosure officer must certify to the prosecutor that to the best of the officer’s knowledge and belief the duties imposed under the Code have been complied with.
Prosecution Disclosure
Responsibilities of Prosecutor to Review Material
It is the prosecutor’s task to review the schedule(s) provided by the disclosure officer and to assess the need to make disclosure of the underlying material to the defence.
That task is undertaken applying the statutory test for disclosure.
The duty on a prosecutor to review material and, where necessary, direct the disclosure of that material is a continuing one and the disclosure should be kept under review throughout proceedings.
Prosecutors must do all that they can to facilitate proper disclosure. This includes bringing concerns about inadequate inspection of relevant material to the attention of disclosure officers, probing actions taken by investigators, reviewing schedules (taking action to ensure they are complete and adequate where necessary), and considering defence statements thoroughly.
Where defence statements are inadequate, prosecutors should challenge this in writing.
Prosecutors should provide the investigator with a copy of the defence statement and advise the disclosure officer on whether any further reasonable lines of inquiry need to be pursued, what to look for when reviewing unused material and what further material may need to be disclosed.
Prosecution advocates must ensure that all material which ought to be disclosed is disclosed to the defence, satisfy themselves that they are in possession of all relevant material and that they have been fully instructed as regards disclosure matters, and keep all disclosure decisions under review.
It is the task of the prosecutor to identify the issues in the case and for the disclosure officer to act under the prosecutor’s guidance; the disclosure regime will not work in practice unless the disclosure officer is directed by the prosecutor as to what is likely to be most relevant and important so that the officer approaches the matter through the exercise of judgement, not simply as a schedule-completing exercise.
Five broad propositions may be identified which are of particular relevance to cases involving large quantities of digital material:
(a) The prosecution must be in the driving seat at the stage of primary disclosure.
(b) The prosecution must encourage dialogue and prompt engagement with the defence.
(c) The law is prescriptive of the result of disclosure, not the method by which the process should operate.
(d) The process should be subject to robust case management by the judge, utilising the full range of case management powers.
(e) Flexibility is critical.
‘dip sampling’ material and the use of search tools by the prosecution to satisfy the disclosure obligation in a practicable and effective manner where the quantity of material to be reviewed would be unmanageable otherwise (though it noted that disclosure of the methodology of such sampling or searching would be important).
Prosecutors must analyse the case for the prosecution, the defence case and the likely trial issues and must encourage dialogue and prompt engagement with the defence.
The defence are under a corresponding duty to engage with the prosecutor at an early stage in order to aid understanding about the defence case and the likely issues for trial.
Pre-charge Engagement
Prosecutors, investigators, suspects and suspects’ legal representatives may enter into discussions about an investigation at any time after the first PACE interview and before charge.
The scheme is intended to facilitate earlier identification of lines of inquiry, narrowing of trial issues and resolution of cases.
Pre-charge engagement can help inform a prosecutor’s charging decision and might avoid a case being charged that would otherwise be stopped later in proceedings.
This is intended to reduce both costs to the criminal justice system and undue anxiety for suspects and complainants.
Such engagement is entirely voluntary and may be terminated at any time.
A decision not to engage at the pre-charge stage should not be held against a defendant at a later stage in the proceedings.
No adverse inferences can be drawn at trial where a suspect fails to mention a fact when asked about a matter in pre-charge engagement.
Pre-charge engagement guidelines not applicable to discussions regarding pleas to an allegation of serious or complex fraud, nor to formal agreements relating to the provision of information or evidence about the criminal activities of others.
pre-charge engagement does not refer to
engagement between the parties to an investigation by way of further PACE interviews,
should not be considered a replacement to a further interview with a suspect and
should not be sought in respect of matters where it is likely that the prosecution will seek to rely on the contents of the suspect’s answers as evidence at trial.
A non-exhaustive list of examples of what pre-charge engagement may entail:
(a) giving the suspect the opportunity to comment on any proposed further lines of inquiry and to identify new ones (although only lines of inquiry reasonable in the circumstance of the case should be followed)
(b) asking whether the suspect is aware of, or can provide access to, relevant digital material;
(c) agreeing key word searches of digital material with the suspect;
(d) obtaining a suspect’s consent to access medical records;
(e) the suspect identifying potential witnesses; and
(f) clarifying whether expert or forensic evidence is agreed.
Pre-charge engagement may take place whenever it is agreed between the parties that it may assist the investigation. Care should be taken to ensure that unrepresented suspects understand their right to legal advice and are given an opportunity to obtain representation before the pre-charge engagement process commences
The pre-charge engagement process may be initiated and conducted by investigators, prosecutors, suspects’ representatives or unrepresented suspects depending on what is appropriate and practical in the circumstances.
Prosecutors and investigators should be alert to the use of pre-charge engagement as a means to frustrate or delay the investigation unnecessarily. Engagement should not be initiated or continued where this is apparent.
Since pre-charge engagement takes place prior to the institution of any proceedings, the statutory disclosure rules will not apply. However, disclosure of unused material must be considered as part of the pre-charge engagement process, to ensure that the discussions are fair and that the suspect is not misled as to the strength of the prosecution case.
Pre-charge engagement discussions should be recorded in full and the record signed.
Disclosure Post-charge but Prior to Statutory Obligation
Prosecutors’ duties apply at all stages of a case, from charge to sentence and post-conviction and regardless of anticipated or actual plea.
the CPIA Code requires disclosure with the initial details of the case of material that might assist the defence with the early preparation of its case or at a bail hearing, irrespective of the anticipated plea.
Examples of such material cited in the Code are relevant previous convictions of key prosecution witnesses and statements that have been withdrawn by witnesses.
The Court found that there might well be circumstances in which it would be helpful to the defence to know of unused material at an earlier stage. For example:
(a) the previous convictions of the alleged victim when they might be expected to help the defence in a bail application;
(b) material to help an application to stay proceedings as an abuse of process;
(c) material to help the accused prepare for trial, e.g., eye-witnesses whom the prosecution did not intend to use.
A responsible prosecutor should consider whether fairness required that some of this material might be disclosed. The question was: what immediate disclosure (if any) did justice and fairness require in the circumstances of the case? The Court found that the extent of the disclosure required at this stage was not the ‘full blown’ extent required.
Statutory Test: Initial Disclosure
CPIA 1996, s. 3.
Section 3 requires a prosecutor to disclose previously undisclosed material to the accused if it ‘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 no disclosable material, the accused must be given a written statement to that effect. The court officer must be informed by the prosecutor at the same time.
Prosecution material is defined in s. 3(2) and includes material which the prosecutor possesses or has been allowed to inspect under the provisions of the CPIA Code.
In determining whether unused material should be revealed to the defence as part of the disclosure process, as noted above, the statutory test is whether it might reasonably be considered capable of:
(a) undermining the case for the prosecution against the accused; or
(b) assisting the case for the accused.
The test is an objective one and is to be approached impartially. Something can be said to be undermined if it becomes more likely to fall (or fail) as a result.
The prosecution case will be more likely to fail if material points to a defect, discrepancy or inconsistency in that case.
The prosecution case might also be undermined as a result of a particular defence which the accused may or may not run. Clearly it is not possible to say with certainty, at the stage of initial disclosure, precisely what course the defence will take. That will come into focus after the service of a defence statement, though it will only be known for sure at trial.
However, it is submitted that the fact that material in the possession of the prosecution raises a new issue in the case which might reasonably be considered capable of assisting the defence is likely to meet the statutory test for its disclosure.
s. 3 does not require disclosure of material which is either neutral in effect or which is adverse to the accused, whether because it strengthens the prosecution or weakens the defence.
The ‘overarching principle is that unused prosecution material will fall to be disclosed if, and only if, it satisfies the test for disclosure applicable to the proceedings in question, subject to any overriding public interest considerations’
Factors for a prosecutor to consider in deciding whether the s. 3 test is met for the purposes of initial disclosure in relation to any piece of material, including
(a) the use that might be made of the material in cross-examination;
(b) its capacity to support submissions that could lead to the exclusion of evidence, a stay of proceedings or a finding that any public authority had acted incompatibly with the accused’s rights under the ECHR;
(c) its capacity to suggest an explanation or partial explanation of the accused’s actions;
(d) its capacity to undermine the reliability or credibility of a prosecution witness;
(e) the capacity of the material to have a bearing on scientific or medical evidence in the case.
In addition, material relating to the accused’s mental or physical health, intellectual capacity, or to any ill-treatment which the accused may have suffered in custody is said to be likely to fall within the test for disclosure.
Prosecutors should start their review of such material with a presumption that it should be disclosed to the defence. However, the list of material is not intended to trigger automatic disclosure, and the disclosure test should always be applied in a thinking manner.
Disclosure Management Documents should be carefully prepared by the prosecutor on the basis of information provided by the investigator. They should be tailored to the individual case and kept up to date as the case progresses. The content of Disclosure Management Documents may include, for example: an explanation as to how disclosure responsibilities have been managed, a summary of the prosecution case, a statement outlining how the prosecutor’s approach will comply with the CPIA 1996 regime, and the prosecutor’s understanding of the defence case.
Detail relating to the following may also be set out: lines of inquiry pursued, timescales for disclosure, the method and extent of examination of digital material, any potential video footage, steps taken to obtain any third party or international material and the credibility of prosecution witnesses.
In cases involving large amounts of digital material, investigators should complete an Investigation Management Document which will inform the Disclosure Management Document that prosecutors should complete.
Ideally, the investigator should consult the prosecutor before the digital material is seized, and in turn they may consider seeking advice from a digital forensic specialist on the strategy for the identification and review of digital material.
The defence must also play their part in identifying the real issues in the case, including by defining the scope of any reasonable searches that may locate digital material that meets the disclosure test.
A prosecutor may disclose material to the defence either by providing a copy of the material or allowing inspection at a reasonable time and place.
However, material must not be disclosed under s. 3 if a court has concluded that it is not in the public interest that it be disclosed.
Criminal Procedure and Investigations Act 1996, s. 3
(1) The prosecutor must—
(a) disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused, or
(b) give to the accused a written statement that there is no material of a description mentioned in paragraph (a).
(2) For the purposes of this section prosecution material is material—
(a) which is in the prosecutor’s possession, and came into his possession in connection with the case for the prosecution against the accused, or
(b) which, in pursuance of a code operative under Part II, he has inspected in connection with the case for the prosecution against the accused.
(3) Where material consists of information which has been recorded in any form the prosecutor discloses it for the purposes of this section—
(a) by securing that a copy is made of it and that the copy is given to the accused, or
(b) if in the prosecutor’s opinion that is not practicable or not desirable, by allowing the accused to inspect it at a reasonable time and a reasonable place or by taking steps to secure that he is allowed to do so;
and a copy may be in such form as the prosecutor thinks fit and need not be in the same form as that in which the information has already been recorded.
(4) Where material consists of information which has not been recorded the prosecutor discloses it for the purposes of this section by securing that it is recorded in such form as he thinks fit and—
(a) by securing that a copy is made of it and that the copy is given to the accused, or
(b) if in the prosecutor’s opinion that is not practicable or not desirable, by allowing the accused to inspect it at a reasonable time and a reasonable place or by taking steps to secure that he is allowed to do so.
(5) Where material does not consist of information the prosecutor discloses it for the purposes of this section by allowing the accused to inspect it at a reasonable time and a reasonable place or by taking steps to secure that he is allowed to do so.
(6) Material must not be disclosed under this section to the extent that the court, on an application by the prosecutor, concludes it is not in the public interest to disclose it and orders accordingly.
(7) Material must not be disclosed under this section to the extent that it is material the disclosure of which is prohibited by section 56 of the Investigatory Powers Act 2016.
(8) The prosecutor must act under this section during the period which, by virtue of section 12, is the relevant period for this section.
Service of Schedule
In addition to providing material under s. 3, under s. 4 of the CPIA 1996, where the prosecutor has been given a schedule of unused material by a police officer under the CPIA Code that schedule must be served on the accused when the prosecutor makes disclosure of unused material under s. 3.
Criminal Procedure and Investigations Act 1996, s. 4
(1) This section applies where—
(a) the prosecutor acts under section 3, and
(b) before so doing he was given a document in pursuance of provision included, by virtue of section 24(3), in a code operative under Part II.
(2) In such a case the prosecutor must give the document to the accused at the same time as the prosecutor acts under section 3.
Summary Trials — Nature of Prosecution’s Obligations
A streamlined disclosure certificate should be used in all cases in which a not guilty plea is anticipated, and which is reasonably expected to be suitable for summary trial.
Where, however, the accused is charged with a summary offence or an either way offence and a guilty plea is considered likely, a schedule is not required unless a not guilty plea is subsequently entered or indicated.
In cases heard in the magistrates’ court and the youth court, prosecutors should always consider whether a Disclosure Management Document would be beneficial. They are most likely to be beneficial in cases involving: substantial or complex third party material, digital material in which parameters of search, examination or analysis have been set, international inquiries, linked operations, non-recent offending and material held or sought by the investigation that is susceptible to a claim of legal professional privilege.
The Judicial Disclosure Protocol states that the principles relating to disclosure apply equally in the magistrates’ courts. It follows that, while disclosure of unused material is undoubtedly essential in order to achieve justice, misconceived applications for disclosure, or inappropriate disclosure, must be avoided.
Prosecutors are required to take into account information provided as to the defence case in the case management forms when conducting any review of material.
A prosecutor’s common-law duties may require the disclosure of material to the accused outside the statutory scheme in accordance with the interests of justice and fairness.
