Disclosure of unused material and defence statements Flashcards
When do disclosure obligations apply to the prosecution?
When an issue is sent for trial on indictment.
When summary trial progresses following a guilty plea
What principals underpin disclosure schemes and duties?
Fairness
Broadly that the prosecution should disclose any material which weakens its case or strengthens the defence case if not relied upon by P.
What is the obligation the disclosure code puts on investigators?
To record all material which may be relevant to the investigation
This is a wide definition. The only things not caught are those which are incapable of having an impact on the case
What must the disclosure officer produce for the prosecutor?
A schedule of material of all retained material which the officer has but believes will not form part of the prosecution case
What should the disclosure officer do with sensitive information?
Should be listed on a separate schedule
This is information that could prejudice a an important public interest if disclosed
What is the prosecutor’s responsibility?
To review schedule and apply statutory test under s.3 CPIA
This is a continuing duty and disclosure should be kept under review
What is the test under s.3
Any material which might reasonably be considered capable of
Undermining the prosecution case
or
assisting the defence
must be disclosed.
This is an objective test
What is pre-charge engagement?
A voluntary process by which counsel for the defence and the accused, and the prosecution can engage with the investigators to help narrow lines of enquiry and help to facilitate effective disclosure.
It is not obligatory and is entirely discretionary
It can happen any time between the first PACE interview and charge
What is the prosecutions disclosure duty after charge but before statutory disclosure?
An effective prosecution will disclose information with the initial details of the case which will help the defence prepare a case and with bail applications
Must the prosecution disclose material which is neutral or which weakens the defence case?
No - no such obligation.
Does not fit under s.3
What are disclosure management documents?
Prepped by prosecutor and detail how the disclosure process has been managed.
Must be served on defence and court 7 days before PTPH in crown court.
How can disclosure be affected?
By P providing a copy or allowing inspection at a reasonable time and place
Is there a public interest exemption to s.3 disclosure?
Yes - but it is on the decision of the court, on the application of the prosecutor
What must be served by the prosecutor on the defence alongside the material disclosed under s.3?
The investigator’s schedule of unused material
What is the time-limit for disclosure in the crown court?
No Strict time limit.
It should be done as soon as reasonably practicable
This is usually as soon as possible after the indictment is laid down or after a guilty plea is entered
What is the continuing duty to review?
P remains under a continuing duty to review disclosure, and must continue to apply the s.3 test.
If at any time before trial ends (by acquittal or conviction) the situation changes as to a piece of evidence, it should be disclosed as soon as reasonably practicable.
P must also continually review any public interest exceptions to see if it is still in the public interest not to disclose
What should happen after the service of the defence statement?
Another review of the undisclosed evidence, to see if any now needs to be disclosed after applying the s.3 test
Does the duty continue after conviction but before sentence?
No - statutory duty ends on conviction.
But common law duty to disclose anything which may be relevant to sentence
What is P’s duty if a conviction is under appeal?
A duty to disclose anything whcih may be relevant to a ground of appeal.
Also continuing duty to disclose any information which might reasonably be considered capable of casting doubt on the safety of the conviction.
What rights do the Defence have under the statutory disclosure scheme?
Right to apply to the court for an order for disclosure if they believe that some material should have been disclosed under the statutory test.
This application can apply to material actually held by the prosecutor, and material the prosecutor has a right to hold
When should a defence statement be served in the crown court?
After the prosecution case is served.
What should a defence statement contain?
The nature of the defence, including any specific defences intended to be relied upon
Matters of fact which defence takes issue with
Matters of fact on which D intends to rely
Points of law D wishes to take and any authorities relied upon
How much detail should the defence statement give?
It should provide detail if a positive defence is being run - a bare denial is insufficient.
But if the position of D is that the case must be proven, this is sufficient
What do Bar Standards Board guidance require barristers obtain before drafting a defence statement?
Instructions.
Should be a signed proof of evidence or note of instruction from conference
Does an alibi need to be disclosed in a defence statement
Yes - should give details and should give information about relevant alibi witnesses as well.
This must be all witnesses who may be able to assist. It does not necessary for the witness be willing to give evidence or not
Should the details of witnesses (other than alibi witnesses) be included on the defence statement?
No
But, there is a separate duty to disclose this information to the court and to the prosecution.
Should include names, addresses and date of birth if known
When should the notice of intention to call witnesses be given?
They must be given within:
14 days - summary
28 days - crown
of when the prosecutor complies with their duty of disclosure.
Does a defence statement have to be provided in a summary trial?
No
It is discretionary. D may provide one.
Can an order for specific disclosure be given in the absence of a defence statement?
No
Can the court extend the time-limit for the serving of the defence statement?
Yes - but the application must be made before the time-limit expires.
There can be repeated applications.
What is the sanction for a failure to provide an adequate defence statement?
The court can comment on the failure in question
Prosecution and co-accused can also comment, but may need the leave of the court (where its a failure to mention a point of law or authority to be relied upon, failure to give notice or adequately identify a witness or failure to give notice in time).
Can the tribunal of fact draw inferences from inadequacies of a defence statement?
Yes - but they cannot form the basis of a conviction.
When can material be withheld under public interest immunity?
Where the materials disclosure could risk prejudice to an important public interest.
It can only be withheld to the minimum extent necessary to protect public interests.
Prosecutors should consider harm to public interests through direct harm and through indirect harm through incremental or cumulative harm
What obligations are there for investigators in terms of investigating?
They must follow all reasonable lines of inquiry, whether they point towards or away from the suspect.
The failure to do so does not defeat the obligation to disclose information.
What should an investigator do where third parties are discovered to hold material which may be relevant?
Should inform the third party of the investigation and be invited to retain the material in case it is requested for disclosure.
No need to make speculative inquiries.
Can the court order a stay to pursue third party disclosure
Only if it goes to the heart of a key issue in the trial and the prosecutor had failed to act in line with guidelines.
What is the procedure for securing disclosure of third party material?
A witness summons is issued for the production of documents
