Disclosure of unused material and defence statements. Public Interest Immunity and third party disclosure. Flashcards
Public Interest Immunity
Circumstances may arise in a case in which material held by the prosecution and tending to undermine the prosecution or assist the defence cannot be disclosed to the defence, fully or even at all, without the risk of prejudice to an important public interest. In such circumstances the courts may be justified in ordering that the material is withheld from disclosure, but they must only allow this to the minimum extent necessary to protect the public interest in question and must never imperil the overall fairness of the trial.
Applications by the prosecution to the court to withhold material in these circumstances are known as public interest immunity applications.
Practice and Procedure of Investigators
Material which might in due course be made the subject of a public interest immunity application must be recorded by investigators in a ‘sensitive schedule’.
Investigators are to specify the reasons why the material is sensitive, the degree of sensitivity attaching to the material, the consequences of revealing it to the defence, the significance of the material to the issues in the trial, the involvement of third parties in bringing the material to the attention of the police, the implications for continuance of the prosecution if disclosure is ordered, and whether it is possible to disclose the material without compromising its sensitivity. In considering the material, prosecutors are to consider the possibility of prejudice to the public interest through direct harm or indirectly through incremental or cumulative harm.
Obligations of Prosecutors
Paragraph 3.5 of the CPIA Code of Practice and para. 17 of the A-G’s Guidelines require investigators to pursue all reasonable lines of inquiry, whether these point towards or away from the suspect. A fair investigation does not mean an endless investigation, however, and thought must be given to defining and articulating the scope of the investigation.
The obligation to make disclosure under the CPIA 1996 and the A-G’s Guidelines cannot be avoided by declining to make an inquiry which might produce disclosable material.
Where such investigation reveals the existence of material held by a third party which may be relevant to the investigation but such material is not obtained, the third party must be informed of the investigation and invited to retain the material in case a request for disclosure is made.
While speculative inquiries of third parties are not required, and there must be some reason to believe that they hold relevant material, the test of what are reasonable investigative steps in the circumstances is likely to start from the position of a persistent prosecutor who does not readily take ‘no’ for an answer.
Pre-Trial Disclosure of Third-Party Material
Another important area of pre-trial disclosure relates to material in the possession of third parties.
This will include records held by health and education authorities, or financial institutions. Although applications for such material may commonly be made on behalf of the accused.
Disclosure of information for criminal proceedings, the prosecution is placed under an obligation to obtain material in the hands of third parties which might be relevant to the prosecution case.
In either event, the mechanism for securing disclosure of third-party material, unless it is volunteered, is through the issuing of a witness summons for the production of documents
