Disclosure of unused material and defence statements. Time limits for prosecution disclosure etc Flashcards
Time-limits for Disclosure
There are no statutory time-limits for disclosure of unused material in the Crown Court.
CPIA 1996, s. 13(1): disclosure must be made as soon as reasonably practicable after the happening of a particular event, such as service of the prosecution case.
In magistrates’ court cases, the CPIA Code stipulates that the schedule, i.e. the streamlined disclosure certificate must be disclosed to the accused either at the hearing at which a not guilty plea is entered, or as soon as possible following a formal indication from the accused or the accused’s representative that a not guilty plea will be entered at the hearing.
If there is a preliminary hearing, the judge should seize the opportunity to impose an early timetable for disclosure and to identify any likely problems including as regards third-party material and material that will require an application to the Family Court.
The court should keep the timetable for prosecution and defence disclosure under review from the first hearing.
Large and complex cases will require robust case management by the judiciary, and the courts should be provided with an up-to-date timetable for disclosure whenever there are material changes as a result of difficulties.
Continuing Duty to Review
A prosecutor remains under a continuing duty to review questions of disclosure, applying a test in the same terms as s. 3.
If, at any time before the accused is acquitted or convicted, the prosecutor forms the opinion that there is material which might undermine the prosecution case, or be reasonably expected to assist the accused’s defence, it must be disclosed to the accused as soon as reasonably practicable, provided that it is not prohibited under s. 7A(8) (public interest) or (9) (relating to the RIPA 2000).
Where the court has ruled against disclosure on public interest grounds, it must keep under review the question whether it is still in the public interest not to disclose the material affected by its order.
In practice, the duty of continuing disclosure is most likely to crystallise either on service of the defence case statement or during the trial itself as the issues develop.
After service of the defence case statement the CPIA Code requires, in effect, a repeat exercise of the process for initial disclosure. An investigator must again look at the material retained and draw the prosecutor’s attention to any material which might reasonably be considered capable of undermining the prosecution case or of assisting the defence if it were to be disclosed.
If the investigator comes into possession of any new material after complying with these duties, it must be revealed to the prosecutor.
This may trigger a requirement for disclosure by the prosecution.
The disclosure officer must also certify compliance with the duties imposed by the CPIA Code after consideration of the defence statement and whenever a schedule of material is otherwise given or material is revealed to the prosecutor.
The duty of continuing review may be triggered during the course of a trial where, for example, a prosecution witness gives evidence which is materially inconsistent with a statement made earlier to the police. If the defence are unaware of the statement, prosecuting counsel should disclose it so that it can be used by the defence in cross-examination to challenge the witness’s evidence.
Following conviction there is no general duty on the State (through the police or CPS) to continue to investigate.
The statutory duties of disclosure under the CPIA 1996 terminate with a conviction, acquittal or discontinuation of the proceedings.
However, between conviction and sentence, there is a common-law duty to disclose any material that is not known to the accused but which may be relevant to sentence, such as information which might assist in placing the accused’s role in the correct context vis-à-vis other offenders.
Once proceedings have concluded, the prosecution are still under a duty to disclose any material which might reasonably be considered capable of casting doubt on the safety of the conviction.
Pending an appeal, the prosecution are obliged to disclose any material not previously disclosed relevant to an identified ground of appeal.
As the Supreme Court observed in Nunn, ordinarily post-conviction disclosure will only arise in respect of material which has come into the prosecution’s possession after trial (otherwise it should have been disclosed previously).
In cases where a failure in disclosure comes to light, however, the common law requires that it be corrected to make available what should have been available at trial as well as material relevant to the grounds of appeal
Criminal Procedure and Investigations Act 1996, s. 7A
(1) This section applies at all times—
(a) after the prosecutor has complied with section 3 or purported to comply with it, and
(b) before the accused is acquitted or convicted or the prosecutor decides not to proceed with the case concerned.
(2) The prosecutor must keep under review the question whether at any given time (and, in particular, following the giving of a defence statement) there is prosecution material which—
(a) might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, and
(b) has not been disclosed to the accused.
(3) If at any time there is any such material as is mentioned in subsection (2) the prosecutor must disclose it to the accused as soon as is reasonably practicable (or within the period mentioned in subsection (5)(a), where that applies).
(4) In applying subsection (2) by reference to any given time the state of affairs at that time (including the case for the prosecution as it stands at that time) must be taken into account.
(5) Where the accused gives a defence statement under section 5, 6 or 6B—
(a) if as a result of that statement the prosecutor is required by this section to make any disclosure, or further disclosure, he must do so during the period which, by virtue of section 12, is the relevant period for this section;
(b) if the prosecutor considers that he is not so required, he must during that period give to the accused a written statement to that effect.
(6) 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 2, he has inspected in connection with the case for the prosecution against the accused.
(7) Subsections (3) to (5) of section 3 (method by which prosecutor discloses) apply for the purposes of this section as they apply for the purposes of that.
(8) 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.
(9) 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.
Defence Applications for Disclosure from the Prosecution
If an accused has served a defence statement and the prosecution have complied, purported to comply, or failed to comply, with the procedure for further disclosure, an accused may apply under the CPIA 1996, s. 8, for an order for disclosure of material which should have been disclosed under s. 7A, i.e. material which the prosecutor should have disclosed as material which might reasonably be considered capable of undermining the prosecution case or assisting the accused’s case.
Such an application may relate to material actually held or inspected by the prosecutor as well as to any material which the prosecutor would be entitled to hold or inspect if requested.
s. 8 procedure is not intended for blanket requests from the defence and that requests for specific disclosure of unused prosecution material which are not referable to any issue in the case identified by the defence case statement should be rejected.
An application for disclosure under s. 8 can only be made if the defence have provided an adequate defence statement. Any application must describe the material which is subject to the application and explain why there is reasonable cause to believe that the prosecutor is in possession of the material and why it meets the test for disclosure. Prosecutors must carefully review any application for disclosure and consider whether any items described in the application meet the test for disclosure.
Criminal Procedure and Investigations Act 1996, s. 8
(1) This section applies where the accused has given a defence statement under section 5, 6 or 6B and the prosecutor has complied with section 7A(5) or has purported to comply with it or has failed to comply with it.
(2) If the accused has at any time reasonable cause to believe that there is prosecution material which is required by section 7A to be disclosed to him and has not been, he may apply to the court for an order requiring the prosecutor to disclose it to him.
(3) 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,
(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, or
(c) which falls within subsection (4).
(4) Material falls within this subsection if in pursuance of a code operative under Part II the prosecutor must, if he asks for the material, be given a copy of it or be allowed to inspect it in connection with the case for the prosecution against the accused.
(5) 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.
(6) Material must not be disclosed under this section to the extent that it is material the disclosure of which is prohibited by section 17 of the Regulation of Investigatory Powers Act 2000.
