Disclosure - prosecution

Question 1

What is used material?

Answer 1

Material the prosecution will rely upon at trial to prove its case against a defendant.

Question 2

What are examples of used material?

Answer 2

*Statements from the prosecution witnesses

*The defendant’s record of taped interview

*Other documentary exhibits such as plans and diagrams that are relevant to proving the case.

Question 3

What is unused material?

Answer 3

Is material that is not being relied upon by the prosecution.

Question 4

What are examples of unused material?

Answer 4

*statements from witnesses that the prosecution is not relying upon at trial to prove its case

*records of previous convictions of prosecution witnesses

*disciplinary findings against police officers.

Question 5

What is the general rule in relation to the disclosure of unused material?

Answer 5

Fairness demands that material in the hands of the prosecution that might help a defendant is served on that defendant.

The defendant may choose to present that material in defence at trial.

Question 6

What are the four stages of disclosure?

Answer 6

1. The investigation stage - the duty to record and retain material during the investigation
2. The initial duty of disclosure on the prosecution
3. Defence disclosure; and
4. The continuing duty on the prosecution to keep disclosure under review.

Question 7

What is the duty to retain and record relevant information?

Answer 7

Under the Disclosure Code of Practice, during a criminal investigation all material which may be relevant to the investigation must be recorded in a durable or retrievable form and retained.

Question 8

What personnel will every investigation have?

Answer 8

*an officer in charge of the investigation who is responsible for directing the investigation and ensuring that proper procedures are in place for recording information and retaining records of information and other material;

*an investigator namely any police officer conducting the investigation. They must follow all reasonable lines of enquiry, whether they point towards or away from the suspect and the investigator must be “fair and objective”.

*a disclosure officer who is responsible for examining material retained and revealing material to the prosecutor and to the defence at the prosecutor’s request.

They must inspect, view, listen to or search all relevant material that has been retained by the investigator and must provide a personal declaration that this has been done. Where there is doubt if material is disclosable, the disclosure officer must seek the advice and assistance of the prosecutor.

Question 9

What are examples of material which may relevant to criminal investigation?

Answer 9

• crime reports
• records from tapes or telephone messages (such as 999 calls) containing the description of an alleged offender
• witness statements (and drafts if they differ from the final version)
• exhibits
• interview records
• experts’ reports and communications between the police and experts for the purposes of criminal proceedings
• records of first descriptions of suspects and any material casting doubt on the reliability of a witness.

In addition, the duty to retain relevant material includes information provided by an accused person which indicates an explanation for the offence charged and any material which casts doubt on the reliability of a confession.

Question 10

How long does the duty to retain material last for?

Answer 10

The duty to retain material lasts at least until a decision is taken whether to commence proceedings against a suspect for a criminal offence.

Once proceedings are commenced, all material must be retained until the accused is acquitted or convicted, or the prosecutor decides not to continue with the case.

Question 11

Where the defendant is convicted, how long does the duty to retain material last for?

Answer 11

Where the defendant is convicted, the material must be retained at least until the defendant is released from custody (or discharged from hospital) or, in cases which did not result in a custodial sentence or a hospital order, until six months from the date of conviction.

Question 12

Where an appeal against conviction is in progress, how long does the duty to retain material last for?

Answer 12

In cases where an appeal against conviction is in progress all material that may be relevant must be retained until the appeal is concluded. Where material comes to light after proceedings have concluded which throws doubt upon the safety of the conviction, the prosecutor must consider disclosure of the material.

Question 13

What is the procedure in relation to the provision of unused material to the prosecutor?

Answer 13

The Disclosure Code of Practice sets out a procedure for the Prosecutor to be notified by the disclosure officer of every item of Unused Material.

*In Crown Court cases the disclosure officer prepares a schedule known as an MG6C which individually lists the items of unused material.

*In magistrates’ court cases where a Not Guilty plea is anticipated the unused material is listed on a streamlined disclosure certificate.

Question 14

What happens in cases involving sensitive material?

Answer 14

In cases involving sensitive material (i.e. material the disclosure of which the disclosure officer believes would give rise to a real risk of serious prejudice to an important public interest) the sensitive material is listed in a separate schedule or, in exceptional circumstances where its existence is so sensitive that it cannot be listed, it is revealed to the prosecutor separately. This may form the subject of a Public Interest Immunity Application at a later stage.

Question 15

What is the disclosure test?

Answer 15

The `disclosure test’ is an objective test. In essence, where there is in existence prosecution material which might help the defence it should be disclosed.

Question 16

What are the A-G Guidelines?

Answer 16

When deciding what to disclose under the disclosure test, prosecutors should consider:

(a) the use that might be made of the material in cross-examination;
(b) its capacity to support submissions that could lead to:

i. the exclusion of evidence;

ii. a stay of proceedings as an abuse of process;

iii. a court or tribunal 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) the capacity of the material to have a bearing on scientific or medical evidence in the case (including relating to the defendant’s mental or physical health, intellectual capacity, or to any ill treatment which the accused may have suffered in custody).

Question 17

What are the additional A-G points of guidance?

Answer 17

• The A-G’s Guidelines go on to state that material should not be looked at in isolation.
• Material which is supportive of the prosecution case (and which the prosecution chooses not to rely upon) or which is neutral in its effect need not be disclosed as unused material because it does not satisfy the disclosure test.
• What is of paramount importance is that the prosecution fulfil its duty of considering all material in light of the disclosure test and acting in accordance with it.

Question 18

What is the time limits for initial disclosure `used material’?

Answer 18

The prosecution will serve initial details of the prosecution case no later than the beginning of the day of the first hearing.

Question 19

What should the initial details of disclosure allow the court to take an informed view on?

Answer 19

The details must include sufficient information to allow the defendant and the court at this first hearing to take an informed view:

a. on plea;

b. on venue for trial (for either-way offences);

c. for the purposes of case management;

d. for the purposes of sentencing (including committal for sentence for either-way offences).

Question 20

When does the disclosure of unused material arise?

Answer 20

UNUSED MATERIAL: Disclosure of unused material by the prosecution arises in the magistrates court ONLY when the defendant pleads not guilty and the case is adjourned for summary trial. The duty arises in the Crown Court when a defendant is sent for trial or where a Voluntary Bill of Indictment has been preferred against a defendant.

However, there is also a common law duty of disclosure which means even when the above has not arisen, a responsible prosecutor needs to think about advance disclosure of material to assist the defence with early preparation of their case or at a bail hearing.

The default position under is that the prosecutor must act ‘as soon as is reasonably practicable’ once the initial duty of disclosure arises.

Question 21

Practically, when is evidence disclosed in a summary trial?

Answer 21

In practical terms, at the first hearing in the magistrates’ court, where a defendant pleads not guilty and the case is adjourned for summary trial:

*if there is any further prosecution evidence still to be served the court will give a date by which this must be done.

*if the prosecution has not complied with its initial disclosure of unused material at this stage, a date will be given for this to be completed.

In any event, prosecutors should serve initial disclosure in sufficient time to ensure that the trial date is effective.

Question 22

Practically, when is evidence disclosed in a Crown Court trial?

Answer 22

*If the case is sent to the Crown Court for trial, a Plea and Trial Preparation Hearing (PTPH) will take place usually 28 days after sending.

*The prosecution should serve sufficient evidence in advance of or at the PTPH, unless the case falls within certain exceptional categories such as murder or cases involving children where a further hearing will be envisaged.

*At the PTPH, if there is more prosecution evidence still to serve and/or if initial disclosure has not been complied with, dates will be given by when this must be done.

*Once the prosecution has complied with its initial duty of disclosure, this does not bring to an end the prosecution’s duty in this regard because the prosecution is under a continuing duty to review disclosure throughout the criminal proceedings.