Disclosure of unused materials and defence statements - syllabus area 5

Question 1

what is the statutory test for disclosure

Answer 1

whether the material might reasonably be considered capable of undermining the case of the prosecution against the accused, or assisting the case for the accused - D9.16

Disclosure considers it will be in the interests of justice and fairness - D9.2

Question 2

what is disclosure?

Answer 2

the release of any material which adversely affects or assist the prosecution case

Question 3

does the CPIA code apply to all criminal investigations carried out by police officers?

Answer 3

yes

Question 4

definition of a criminal investigation:

Answer 4

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. D9.6

Question 5

Who is an investigator?

Answer 5

a police officer involved in the conduct of investigation

Question 6

who is the disclosure officer?

Answer 6

the person responsible for examining material retained by the police during the investigation and for revealing material to the prosecutor

Question 7

who is the officer in charge of the investigation?

Answer 7

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

Question 8

must clear records the identities of those performing the roles of investigation be retained?

Answer 8

Yes- the CPIA code emphasises the need for these to be retained - D9.8

Question 9

Under CPIA Code investigators must record, in durable or retrievable form, all material which may be relevant to the investigation and which is not already recorded. True or false?

Answer 9

True. - D9.10, the obligation includes recording negative information.

The investigator is also in charge of retaining material obtained in a criminal investigation that may be relevant to the investigation

Question 10

what amounts to material that is “relevant to an investigation”

Answer 10

any material that has some bearing on any offence under the investigation or any person being investigated, or on the surrounding circumstances of the case. They are relevant unless it is incapable of having any impact on the case. D9.10

Question 11

What is material?

Answer 11

anything gathered in the course of investigation and generated by the investigation i.e interview records

Question 12

the CPIA code expressly identifies the duty to retain material. true of false?

Answer 12

true, for example , draft witness statements, completed witness statements, crime reports, police officers notebooks, etc D9.10

Question 13

Material retained which may be relevant to an investigation but the disclosure officer believes will not form part of the prosecution case must be listed on a schedule. true or false?

Answer 13

True - D9.12

Question 14

in crown court cases the disclosure officer must prepare a schedule on a form known as the MG6C. true or false?

Answer 14

true D-.12. in magistrates court where the accused is likely to plead not guilty, a streamlined disclosure certificate is prepared

Question 15

where should sensitive material be listed?

Answer 15

on a separate schedule or exceptionally disclosed to the prosecutor separately.

Question 16

what is sensitive material?

Answer 16

any material the investigator believes will give rise to a real risk of serious prejudice to an important public interest if disclosed

Question 17

what does the A-G’s Guidelines regarding disclosure of non-sensitive material state?

Answer 17

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

Question 18

where defence statements are inadequate what do prosecutors do?

Answer 18

challenge this in writing - D9.13

Prosecutors should provide the investigator with a copy of the defence statement and advise disclosure officer on whether any 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

Question 19

under 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. true or false?

Answer 19

true

Question 20

benefit of pre-trial engagement

Answer 20

to facilitate earlier identification of lines of inquiry, narrowing of trial issues and resolution of cases.

It informs a prosecutor’s charging decision and might avoid a case being charged that would otherwise be stopped later in proceedings

Question 21

are pre-charge engagements voluntary?

Answer 21

Yes - D9.14

they are voluntary and may be terminated at any time. a decision not to engage would not be held against the defendant at a later stage in the proceedings.

Question 22

can adverse inferences be drawn from failure to answer a question at a Pre charge engagement?

Answer 22

No adverse inferences can be drawn at trial under s.34 CJPO 1994 where a suspect fails to mention a fact asked about a matter in the pre-charge engagements.

Question 23

where does pre charge engagement take place?

Answer 23

wherever it is agreed between the parties that it may assist the investigation

Question 24

If there is no disclosable material what must the prosecutor do?

Answer 24

provide the accused a written statement to that effect and inform the court officer at the same time - D9.16

Question 25

how may a prosecutor disclose material to the defence?

Answer 25

Either by providing a copy of the material or allowing inspection at a reasonable time and place- D9.20

Material should not be disclosed if it is not in the public interest and if prohibited by s56 of the Investigatory Powers Act 2016

Question 26

where a guilty plea is indicated in a summary or either way offence is a disclosure schedule (disclosure certificate for summary trial) required?

Answer 26

NO. it is not required unless a not guilty plea is subsequently entered or indicated - D9.23

Question 27

When should disclosure be made in the Crown court?

Answer 27

as soon as reasonably practicable after the happening of a particular event, such as service of the prosecution case

Question 28

when should disclosure be made in the magistrates’ court?

Answer 28

the streamlined disclosure certificate must be disclosed to the accused either at the hearing at which a NG plea is entered, or as soon as possible following a formal indication from the accused’s representation that a NG plea will be entered.

Question 29

the court should keep a timetable for prosecution and defence disclosure under review from the first hearing. true or false

Answer 29

true D9.24

Question 30

if there is a preliminary hearing, the judge should use the opportunity to impose an early timetable for disclosure and to identify likely problems, including as regards third party material and material that will require an application to the family court. True or false?

Answer 30

true - D9.24

Question 31

In practice when is the duty of continuing disclosure most likely to crystallise?

Answer 31

either on service of the defence case statement or during the trial itself as the issues develop. D9.25

Question 32

When does the statutory duty of disclosure terminate?

Answer 32

with a conviction, acquittal or discontinuation of the proceedings - D9.25

However, between conviction and sentence, there is a common law duty to disclose any material that is not known to the accused, but 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

Question 33

Once proceedings are complete are the prosecution under a duty at common law to consider disclosure?

Answer 33

yes. they are to consider disclosure of any material which might cast doubt on the safety of the conviction and to make disclosure of such material unless there is a good reason not to

Question 34

are prosecution obliged to make disclosure pending an appeal?

Answer 34

yes. they are obliged to disclose any material not previously disclosed relevant to the identified ground of appeal.

Question 35

if an accused has served a defence statement and the prosecution have complied or purported to comply, or failed to comply with the further disclosure, what may happen?

Answer 35

the accused may apply under the CPIA 1996, s8 for an order for disclosure of material which should have been disclosed

Question 36

any application for further disclosure can only be made when?

Answer 36

if an adequate defence statement has been provided. The application must describe the material 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 - D9.27

Question 37

What must the accused do once the case is sent to crown court and the prosecution case is served?

Answer 37

the accused must give a defence statement to the court and the prosecutor - D9.30

The duty of disclosure imposed on the defence is a duty to reveal the case which will be presented at trial

Question 37

What must the accused do once the case is sent to crown court and the prosecution case is served?

Answer 37

the accused must give a defence statement to the court and the prosecutor - D9.30

The duty of disclosure imposed on the defence is a duty to reveal the case which will be presented at trial

Question 38

what happens if the defence statement discloses an alibi?

Answer 38

particulars of the alibi must be given - D9.34

The names, address and date of birth of any alibi witness whom the accused intends to rely on must be contained in the defence statement. If the defence does not know any of these details, any information in the accused’s possession that might assist in identifying the witness must be given

Question 39

what is alibi evidence?

Answer 39

evidence to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been at the place where the offence is alleged to have been committed

Question 40

the defence are under a duty to notify the prosecutor, separately from the defence statement, of any witness they intend to call at trial, other than the defendant, and any alibi witnesses already notified. True or false?

Answer 40

true - D9.35

Notice of intention to call a witness must be given within 14 days (in summary proceedings) and 28 days (in the case of the crown court) from the date when the prosecutor complies, or purports to comply, with the duty to disclosure

Question 41

how must any change in plans to call witnesses (including a decision not to call a witness) be dealt with?

Answer 41

by way of an amended notice to the court and the prosecutor - D9.35

Question 42

Is there an obligation on the defence to provide a witness statement in cases tried summarily?

Answer 42

no. there is no obligation - D9.38

Once the prosecutor has complied, or purports to comply with the duty to disclose unused material, the accused MAY give the prosecutor and the court a defence statement

in the absence of a defence statement, application for specific disclosure under s.8 cannot be made. The court cannot also make any orders for disclosure of unused prosecution material

Question 43

where the accused chooses to serve a defence statement in a summary trial, when must it be done?

Answer 43

within 14 days from the date on which the prosecutor complies or purports to comply with the initial duty of disclosure - D9.38

The court may extend the time limit on the application of the accused

Question 44

who else must the accused give a defence statement to asides the prosecutor in a summary trial?

Answer 44

the court - D9.39

Question 45

When must the defence statement in the Crown Court be served?

Answer 45

within 28 days of prosecution’s compliance or purported compliance with the duty of initial disclosure - D9.41

Defence may apply for an extension, but the application must be made before the deadline expires

The application must not be granted unless the court is satisfied that it would not be reasonable to require the accused to give a defence statement within 28 days. There is no limit to the number of applications that may be made

Question 46

when does time begin to run for a defence statement to be served

Answer 46

from when the prosecution serves a statement - D9.41

NOT from the dare of service of schedule of unused material. Right to further disclosure is not lost if there is a delay in serving the defence statement

Question 47

what must the application to extend the application for defence statement contain?

Answer 47

the grounds which the application is made and the number of days the accused wishes the relevant period to be extended - D9.42

Question 48

where disclosure is required and there is risk of prejudice to an important public interest, what may the court do?

Answer 48

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. - D9.50

Question 49

what are applications by the prosecution to withhold material that risks to prejudice a public interest aspect called?

Answer 49

public interest immunity applications - D9.50

Question 50

Where must material at risk of prejudicing the public interest be recorded?

Answer 50

they must be recorded by investigators in a ‘sensitive schedule’ - D9.56

Question 51

What must investigators do in relation to sensitive material that risk public interest preudice?

Answer 51

They must specify 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 - D9.56

Question 52

How must prosecutors consider the possibility of prejudice to the public interest?

Answer 52

through direct harm or indirectly through incremental or cumulative harm - D9.56

Question 53

what should happen where an investigation reveals the existence of material held by a third party which may be relevant to the investigation but the material is not obtained?

Answer 53

The third party must be informed of the investigation and invited to retain the material in case a request for disclosure is made -D9.72

Question 54

Prosecution are not required to investigate matters or obtain evidence which may help the defence. True or false?

Answer 54

True - D9.72

Question 55

Who bears the obligation to obtain material in the hands of third parties which might be relevant to the prosecution case?

Answer 55

the prosecution - D15.79

Although applications for such material may commonly be made on behalf of the accused

Question 56

What is the mechanism for securing disclosure of third-party material?

Answer 56

Through a witness summons for the production of documents (unless it is volunteered) - D15.79

Question 57

There is a requirement that parties alert the crown court to related family proceedings and the Court has the power to request information from those proceedings. True or false?

Answer 57

True - D15.79