Disclosure (W6)

Question 1

Definition of used material

Answer 1

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

Question 2

Definition of unused material

Answer 2

Material that is not being relied upon by the prosecution.

Question 3

D9.2 - Principal consideration for a prosecutor in terms of disclosure

Answer 3

• Whether disclosure of any material to the defence is required in accordance with the interests of justice and fairness.
• Lord Bingham, R v H: ‘Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence.’

Question 4

D9.2 - Staged approach of disclosure envisaged under the CPIA 1996

Answer 4

(1) Statutory duty obliges police officers investigating an offence to record and retain all information and material that may be relevant to the investigation.
(2) Material which is relevant to the investigation but is not expected to form part of the prosecution case should be provided by the police to the prosecutor for review
(3) Prosecution must apply statutory test in CPIA 1996 s.3 to that material and must disclose any material meeting that test, usually together with a schedule of all the other material recorded and retained.
(4) The defence have a duty to inform the prosecution of the case which they intend to present at trial.
(5) The prosecution are, throughout proceedings, under a duty to disclose material which meets the statutory test for disclosure, which may prompt further disclosure (e.g. following the defence statement)
(6) Following service of the defence statement and any further disclosure (or a failure to make further disclosure), an accused may make further applications for disclosure.

Question 5

To what alleged offences do the disclosure provisions of Part I of the CPIA 1996 apply?

Answer 5

They apply to any alleged offence for which a criminal investigation began on or after 1 April 1997.

Question 6

D9.6 - Unused material disclosure at the investigation stage

Answer 6

• The responsibilities of investigations in relation to unused material is chiefly set out in the CPIA Code.
• The CPIA Code applies to all criminal investigations carried out by police officers and persons other than police officers charged with the duty of conducting criminal investigations
• Definition of criminal investigation: 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.

Question 7

D9.8 - Responsibilities of investigators and disclosure officers: Definitions

Answer 7

• Investigator: any police officer involved in the conduct of a criminal investigation
• Disclosure officer: Police officer responsible for examining material retained by the police during investigation and for revealing material to the prosecutor
• Officer in charge of an investigation: police officer responsible for directing a criminal investigation, including ensuring proper procedures are in place for recording information, retaining records of information and other material in the investigation.

Question 8

D9.8 - Responsibilities of investigators and disclosure officers: CPIA Code

Answer 8

• need to retain clear records of the identities of persons performing roles of investigator, disclosure officer and officer in charge
• they must be carried out by suitably experienced individuals, independent of the investigation

Question 9

D9.10 - Duty to record and retain material

Answer 9

• CPIA Code: investigators must record, in a durable or retrievable form, all material which may be relevant to the investigation and which is not already recorded.
• The investigator is also responsible for retaining all material obtained in a criminal investigation that may be relevant to the investigation.
• Material will fall into this category if it appears to an investigator or disclosure officer that it has merely some bearing on any offence under investigation or any person being investigated, or on the surrounding circumstances of the offence.
• It includes material gathered in the course of investigation (e.g. documents seized when searching premises) as well as generated by the investigation (e.g. interview records)

Question 10

D9.12 - Duty to reveal material to the prosecutor

Answer 10

• CPIA Code, para 6: Retained material which may be relevant to an investigation, but which the disclosure officer believes will not form part of the investigation, must be listed on a schedule.
• The obligation to prepare a schedule arises in all cases likely to be heard in the Crown Court and all cases in the mags where the accused is likely to plead NG

Question 11

D9.12 - Schedule

Answer 11

• In the Crown Court, disclosure officer must prepare a schedule on the MG6C form which lists retained material.
• In the mags, where the accused is likely to plead NG, a streamlined disclosure certificate is prepared.
• It is these schedules which the prosecutor will review when making decisions as to whether material is to be disclosed to the defence, applying the statutory test.

Question 12

D9.12 - Sensitive material

Answer 12

• Any sensitive material should be listed in a separate schedule or, exceptionally, disclosed to the prosecutor separately.
• Sensitive material = material which the investigator believes would give rise to a real risk of serious prejudice to an important public interest if it were to be disclosed.
• e.g. material relating to informants, undercover police officers, premises used for police surveillance, material related to child witnesses

Question 13

D9.12 - Information contained in schedules

Answer 13

• Descriptions by 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 information to enable the prosecutor to decided whether the material should be viewed, bearing in mind its confidential nature.

Question 14

D9.12 - What investigators should draw the prosecutor’s attention to

Answer 14

• Any material which might satisfy the test for prosecution disclosure
• The investigator must give the prosecutor a copy of any material which falls within certain categories of the CPIA Code, including information provided by an accused which indicates an explanation for the offence and any material relating to the reliability of a confession or a prosecution witness.
• The prosecution duty to disclose is not rendered redundant if officers withhold material from counsel, or if officers withhold information from one another.
• A disclosure officer must certify to the prosecutor that to the best of the officer’s knowledge and belief, the duties imposed under the code have been complied with.

Question 15

D9.13 - Task of the prosecutor with regard to disclosure

Answer 15

• The prosecutor’s task is to review the schedule(s) provided by the disclosure officer and to assess the need to make disclosure to the defence.
• This task is undertaken by applying the statutory test for disclosure contained in the CPIA 1996, s.3
• The duty on a prosecutor to review material and, where necessary, direct the disclosure of that material is a continuing one and the disclosure should be kept under review throughout proceedings.

Question 16

D9.13 - Responsibilities of the prosecutor when reviewing material for disclosure

Answer 16

• A-G’s guidelines require prosecutors to do all that they can do to facilitate proper disclosure, e.g. probing actions taken by disclosure officers, reviewing schedules and if necessary, taking action to correct or improve them.
• They must consider any defence statement thoroughly. They should advise the investigator if any such lines of inquiry should be pursued and challenge the lack of, or inadequate, defence statements in writing.
• They must ensure all material which ought to be disclosed is disclosed to the defence, satisfy themselves that they are in possession of all relevant material and that they have been fully instructed as regards disclosure matters, and keep all disclosure decisions under review.
• Disclosure regime will not work in practice unless the disclosure officer is directed by the prosecutor as to what is likely to be most relevant and important (Olu)

Question 17

D9.13 - Broad propositions which are of particular relevance to cases involving large quantities of digital material

Answer 17

(a) The prosecution are, and must be, in the driving seat at the stage of primary disclosure
(b) The prosecution must encourage dialogue and prompt engagement with the defence
(c) The law is prescriptive of the result of disclosure, not the method by which the process should operate
(d) The process should be subject to robust case management by the judge, utilising the full range of case management powers.
(e) Flexibility is critical.

Question 18

D9.13 - Court approved practices where there is a large volume of unused material

Answer 18

‘Dip sampling’ material and the use of search tools by the prosecution in a practicable and effective manner where the quantity of material to be reviewed would be unmanageable otherwise.

Question 19

D9.14 - Disclosure post-charge but prior to statutory obligation

Answer 19

• At common law and under the A-G’s guidelines, investigators and prosecutors must recognise that the interests of justice and fairness in the particular circumstances of any case may require disclosure of material after the commencement of proceedings but before the statutory duty arises.
• the CPIA Code also requires disclosure with the initial details of the case of material that might assist the defence with the early preparation of its case or at a bail hearing, irrespective of the anticipated plea.
• Examples of such material cited in the code are relevant previous convictions of key prosecution witnesses and statements that have been withdrawn by witnesses.

Question 20

D9.14 - Material which the prosecution might be expected to disclosure on an indictable only offence prior to committal

Answer 20

DPP, ex parte Lee:

(a) Previous convictions of the alleged victim when they might be expected to help the defence in a bail application;
(b) Material to help an application to stay proceedings as an abuse of process;
(c) Material to help the accused prepare for trial, e.g. eye witnesses whom the prosecution do not intend to use.
- A responsible prosecutor should consider whether fairness required that some of this material might be disclosed. The question is: what immediate disclosure did justice and fairness require in the circumstances of the case?
- The extent of disclosure required at this stage is not the ‘full blown’ extent required under the CPIA 1996.

Question 21

D9.15 - The statutory test for initial disclosure

Answer 21

• The main duty of the prosecution to make disclosure of material other than its case arises under s.3 CPIA 1996.
• Section 3 requires a prosecutor to disclose previously undisclosed material to the accused if it ‘might reasonably be considered capable of undermining the case for the prosecution against the accused, or assisting the case for the accused.’
• The test is an objective one and is to be approached impartially.

Question 22

D9.15 - what would be material that s.3 does not require disclosure of?

Answer 22

• Documentation created (or received) by an accused and required for memory refreshing
• Material which is either neutral in effect or which is adverse to the accused, whether because it strengthens the prosecution or weakens the defence.

Question 23

D9.16 - Key considerations when it comes to prosecution disclosure

Answer 23

• ‘it is…essential that the trial process is not overburdened or diverted by erroneous and inappropriate disclosure of unused prosecution material’
• the ‘overarching principle is that unused prosecution material will fall to be disclosed if, and only if, it satisfies the test for disclosure applicable to the proceedings in question, subject to any overriding public interest considerations’
• However, failure to disclose material to the defence remains the biggest single cause of miscarriages of justice.

Question 24

D9.18 - Factors set out by the A-G’s Guidelines for a prosecutor to consider in deciding whether the s.3 test is met for the purposes of initial disclosure

Answer 24

(a) the use that might be made of the material in cross-examination;
(b) its capacity to support submissions that could lead to the exclusion of evidence, a stay of proceedings or a 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 that case.
- In addition, material relating to the accused’s mental/physical health, intellectual capacity, or any ill treatment which the accused may have suffered in custody is likely to fall within the test for disclosure.

Question 25

D9.18 - Disclosure for long and complex cases in the Crown Court

Answer 25

• A-G’s Guidelines indicate that careful thought is given by prosecutors to prosecution-led disclosure from the very earliest stage
• A clear investigation and prosecution policy must be devised and the approach to disclosure set out in a Disclosure Management Document. Such a document should be served on the court and the defence at an early stage.

Question 26

D9.19 - How the prosecutor may disclose material to the defence

Answer 26

• Either by providing a copy of the material or allowing inspection at a reasonable time and place (CPIA 1996, s.3(3))
• Material must not be disclosed however if a court has concluded that it is not in the public interest for it to be.
• Nor may material be disclosed if its disclosure is prohibited by the IPA 2016, s.56.

Question 27

D9.20 - s.3 main provisions

Answer 27

(1) The prosecutor must–
(a) disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused, or
(b) give to the accused a written statement that there is no material of a description mentioned in paragraph (a).
(2) For the purposes of this section prosecution material is material–
(a) which is in the prosecutor’s possession, and came into his possession in connection with the case for the prosecution against the accused, or
(b) which, in pursuance of a code operative under Part II, he has inspected in connection with the case for the prosecution against the accused.
(3) Where material consists of information which has been recorded in any form the prosecution discloses it for the purpose of this section–
(a) by securing that a copy is made of it and that the copy is given to the accused, or
(b) if in the prosecutor’s opinion that is not practicable or not desirable, by allowing the accused to inspect it at a reasonable time and a reasonable place by taking steps to secure that he is allowed to do so;
and a copy may be in such form as the prosecutor thinks fit and need not be in the same form as that in which the information has already been recorded.

Question 28

D9.21 - Service of schedule

Answer 28

Under s.4 CPIA 1996, where the prosecution has been given a schedule of unused material by a police officer under the CPIA Code, that schedule must be served on the accused when the prosecutor makes disclosure of unused material under s.3.

Question 29

D9.22 - Nature of prosecution’s disclosure obligations for summary trials

Answer 29

• applies when the accused pleads NG and the court proceeds to summary trial
• the CPIA Code provides for a streamlined disclosure process in such cases, involving a simplified disclosure schedule
• principles relating to disclosure apply equally in the mags
• however inappropriate disclosure must be avoided
• prosecutors are required to take into account the information provided as to the defence case in the case management forms
• the A-G’s Guidelines require prosecutors to be alert to the possibility that material may exist which should be disclosed to the defence prior to the CPIA requirements.

Question 30

D9.23 - Time limits for disclosure

Answer 30

• No statutory time limits for disclosure of unused material in the Crown Court.
• Default position in s.13(1) CPIA 1996: disclosure must be made as soon as reasonably practicable after the happening of a particular event, e.g. service of the prosecution case.
• In mags, where a streamlined disclosure certificate is required, it 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 or their representative that a NG plea will be entered.
• If there is a preliminary hearing, the judge should impose an early timetable for disclosure and identify any likely problems as regards third party material and material that will require application to the Family Court
• The court should keep the timetable for disclosure under review from the first hearing

Question 31

D9.24 - Continuing duty to review

Answer 31

• A prosecutor remains under a continuing duty to review questions of disclosure
• If at any time before the accused is acquitted or convicted the prosecutor forms the opinion that there is material which might undermine the prosecution case or be reasonably expected to assist the defence case, it must be disclosed to the accused as soon as reasonably practicable
• The duty of continuing disclosure is most likely to crystallise either on service of the defence case statement or during the trial itself as the issues develop.
• After service of the defence statement, the CPIA Code requires a repeat exercise of the process for initial disclosure.
• The duty of continuing review may be triggered during the trial, e.g. where a prosecution witness gives evidence that is materially inconsistent with a statement made earlier to the police. If the defence is unaware of that statement, prosecuting counsel should disclose it so that it can be used by the defence in cross-exam.

Question 32

D9.24 - Disclosure upon conviction/once proceedings are complete

Answer 32

• Statutory duties of disclosure under CPIA 1996 terminate with a conviction, acquittal or discontinuance of proceedings
• However, between conviction and sentence, there is a common law duty to disclose any material that is not known to the accused but which may be relevant to sentence (Gohil)
• Once proceedings are complete, the prosecution are still under a common law duty to consider disclosure of any material which might cast doubt on the safety of conviction and to make disclosure of such material unless there is a good reason not to.
• Pending an appeal, the prosecution are obliged to disclose any material not previously disclosed relevant to an identified ground of appeal.
• In cases where a failure in disclosure comes to light, the common law requires that it be corrected to make available what should have been available at trial.

Question 33

D9.26 - Defence applications for disclosure from the prosecution

Answer 33

• If the accused has served a defence statement and the prosecution have complied, purported to comply, or failed to comply, with the procedure for further disclosure, an accused may apply under s.8 CPIA 1996 for an order for disclosure of material which should have been disclosed
• Such an application may relate to material actually held/inspected by the prosecutor, as well as to any material which the prosecutor would be entitled to hold or inspect if requested.
• Requests for specific disclosure of unused prosecution material which are not referable to any issue in the case identified by the defence statement should be rejected (DPP v Wood)
• Procedure for making an application under s.8 is by written submissions.

Question 34

D9.29 - The defence statement

Answer 34

CPIA 1995, s.5

• Once the case is sent to the Crown Court and the prosecution case is served, the accused must give a defence statement to the court and the prosecutor.
• This is a written statement setting out the basis on which the case will be defended.

Question 35

D9.29 - What the defence statement must include

Answer 35

s. 6A CPIA 1996:
- the nature of the accused’s defence, including any particular defences upon which the accused intends to rely;
- the matters of fact on which the accused takes issue with the prosecution, and why;
- particulars of the matters of fact on which the accused intends to rely for the purposes of defence; and
- any points of law which the accused wishes to take, with any authorities relied upon.

Question 36

D9.33 - Alibi in defence statement

Answer 36

• If the defence statement discloses an alibi, particulars of alibi must be given (s.6A(2) CPIA 1996)
• Names, addresses and dates of birth of any alibi witnesses which the accused intends to call must be contained within the defence statement.
• If the accused does not know these details, any information in the accused’s possession that might assist in identifying or finding such witnesses must be given.
• The statutory obligation to disclose these details is triggered by the accused’s belief that the witness is able to assist; it is not necessary that the witness can or is willing to give evidence.

Question 37

D9.33 - Definition of alibi

Answer 37

‘evidence tending 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 at the time of its alleged commission’ (s.6A(3) CPIA 1996)

Question 38

D9.34 - Notification of details of defence witnesses

Answer 38

• Defence are under a duty to notify the court and the prosecutor, separately from the defence statement, of any witnesses they intend to call at trial, other than the defendant and any alibi witnesses already notified (s.6C CPIA 1996)
• Defence must provide names, addresses, dates of birth or if any such details are not known, other identifying information.

Question 39

D9.34 - Time limits for notice of intention to call defence witnesses

Answer 39

• Within 14 days (for summary proceedings)
• Within 28 days (for Crown Court proceedings)
• From the date when the prosecutor complies, or purports to comply, with the duty to disclose under s.3 CPIA 1996
• There is provision for applications for extensions of this period.

Question 40

D9.34 - Changes in plans to call defence witnesses

Answer 40

Must be dealt with by way of an amended notice to the court and the prosecutor.

Question 41

D9.37 - Defence statements in cases tried summarily

Answer 41

• There is no obligation on the defence to serve a defence statement
• However, once the prosecutor has complied or purported to comply with the duty to disclose unused material, the accused may give the prosecutor and the court a defence statement (s.6 CPIA 1996)
• In the absence of a defence statement, the accused cannot make an application for specific disclosure under s.8 CPIA 1996

Question 42

D9.37 - Magistrates Court Protocol on defence statements

Answer 42

(1) Defence advocates must give consideration at an early stage as to whether to serve such a statement.
(2) Defence statements must contain a clear and detailed exposition of the issues of fact and law in the case and courts should examine them with care to ensure that they comply with formalities required by the CPIA
(3) Where late service of a defence statement results in potential delay to proceedings, any application to adjourn for further disclosure or to make a s.8 application must be scrutinised carefully by the court
(4) Any case which raises difficult issues of disclosure should be referred to a DJ, where one is available.

Question 43

D9.40 - Applications for time extensions for defence statements in the Crown Court

Answer 43

• 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.
• No limit to the number of applications that can be made.
• Time limit runs from the date of service of a statement by the prosecution, not from service of the schedule of unused material.
• If an extension is sought, the application ought to be accompanied by an appropriate explanation.

Question 44

D9.42 - When do sanctions for failure to provide defence materials apply

Answer 44

(a) defence fails to give the initial defence statement required under s.5 CPIA 1996 in respect of Crown Court cases;
(b) gives the initial defence statement after the 14 day period (mags) or 28 day period (Crown)
(c) sets out inconsistent defences in the defence statement;
(d) puts forward a defence at trial that was not mentioned in the defence statement;
(e) relies on a matter that should have been mentioned in the defence statement but was not;
(f) gives evidence of alibi or call a witness to give evidence in support of alibi without having complied with the provisions relating to notification of alibi witnesses;
(g) calls a witness not included or inadequately identified in the notice of defence witnesses.

Question 45

D9.43 - Sanctions for failure to provide defence materials

Answer 45

• The court may comment upon the failure (s.11(5) CPIA 1996), and so may other parties (i.e. the prosecution or co-accused), although sometimes this requires leave of the court.
• The circumstances in which the mention requires the leave of the court are where the defect is a failure to mention a point of law or authority to be relied upon, failure to give notice of or adequately identify a witness, or failure to give such notice in time.
• The court or jury may draw such inferences as appear proper in deciding whether the accused is guilty of the offence concerned. The accused may not be convicted solely on the basis of such an inference.
• It seems from the wording that the use of an inference from defective disclosure to bolster the prosecution case against a submission of no case to answer is not possible, therefore the context in which such an inference can be drawn is narrower than that applicable to inferences from silence
• These are the only sanctions that can apply.
• Where a failure to provide a defence statement results in additional expense for the prosecution, a wasted costs order may be appropriate.

Question 46

D9.49 - Public interest immunity

Answer 46

• Where material 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 and must never imperil the fairness of the trial (R v H)
• Applications by the prosecution to withhold material in these circumstances are called public interest immunity applications.

Question 47

D9.55 - Sensitive schedule

Answer 47

• Material which might be made the subject of a public interest immunity application must be recorded by investigators in a ‘sensitive schedule.’
• Contents:
• Reasons why the material is sensitive
• Degree of sensitivity
• Consequences of revealing it to the defence
• Significance of the material to the issues in the trial
• Involvement of third parties in bringing the material to the attention of the police
• Implications for continuance of the prosecution if disclosure is ordered
• whether it is possible to disclose the material without compromising its sensitivity

Question 48

D9.71 - Obligations of prosecutors on third party provision of information

Answer 48

• Investigators must pursue all reasonable lines of inquiry, whether these point towards or away from the suspect.
• The obligation to make disclosure under CPIA 1996 cannot be avoided by declining to make an inquiry which might provide disclosable material
• However, prosecutors are not required to investigate matters or obtain evidence which may help the defence.
• Where 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.
• 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.
• Margin of discretion attributable to a prosecutor in pursuing third party disclosure is confined by considerations of fairness at common law and under the ECHR Article 6.

Question 49

D15.79 - Pre-trial disclosure of third party material

Answer 49

• Applications for such material may commonly be made on behalf of the accused
• Prosecution is also under an obligation to obtain material in the hands of third parties which might be relevant to the prosecution case.
• In either case, 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 (s.2A Criminal Procedure (Attendance of Witnesses) Act 1965)