Disclosure - Prosecution Flashcards
Why is unused material (evidence not relied upon in court) important?
The material might throw doubt on the prosecution case.
What is full and proper disclosure?
Any material, which weakens its case or strengthens D’s case, should be disclosed to the defence fully.
What is disclosure referred to as?
The golden rule.
Where are main disclosure provisions found?
- Criminal Procedure and Investigations Act
- Code of Practice on Disclosure
- Criminal Procedure Rules
- Attorney General Guidelines on Disclosure
- Judicial Disclosure Protocol
What are the four stages of disclosure?
- Investigative stage – duty to record and retain material during investigation
- Initial duty of disclosure on the prosecution;
- Defence disclosure; and
- Continuing duty on prosecution to keep disclosure under review
Who are the main actors to the investigative stage?
- Officer in charge of investigation responsible for procedures
- Investigator who is conducting investigation
- Disclosure officer who is responsible for examining material and revealing material
What is investigator’s role?
Follow all reasonable lines of enquiry – be fair and objective
What is disclosure officer’s role?
Inspect, view, listen, search all material and provide personal declaration that is has been done
What if disclosure officer in doubt as to whether material is disclosable?
Must seek advice of prosecution
How long must relevant material be retained?
Until accused acquired / convicted (and then released from custody, or at least 6 months after conviction), or prosecutor decides not to continue
What happens where a D is convicted, and then new evidence is found which undermines the conviction?
This must be disclosed
How is provision of unused material presented to prosecutor in Crown Court case?
Disclosing officer prepares a schedule which individually lists out items of unused material
How is provision of unused material presented to prosecutor in Magistrates Court case?
Where not guilty plea, its listed on streamlined disclosure certificate
What is duty of Disclosure Officer?
They must certify they have complied with duties to best of knowledge
What is the prosecution disclosure test?
Capable of undermining case
What should prosecutor consider as per AG guidelines?
- Use of the material in cross-examination
- If it could lead to:
o Exclusion of evidence
o Stay of proceedings as to abuse of power
o Incompatibility with ECHR - Provides an explanation of accused’s actions
- Could have a bearing on specific or medical evidence in case (including intellectual capacity, mental health)
Do they consider evidence individually or as one?
A combination of both. It might not show anything on its, but it potentially could if paired with other evidence.
When is initial disclosure due?
No later than beginning of first day of first hearing
When does statutory duty for disclosure of unused material arise?
- Magistrates court – when D pleads not guilty and adjourned for summary trial
- Crown – when D sent to trial or where voluntary bill of indictment preferred against D
What happens where statutory duty of disclosure does not arise?
Reasonable prosecutor has common law duty of disclosure – to disclose in the interests of justice and fairness
