Pre-trial criminal litigation IIII (disclosure) Flashcards
What is the significance of the prosecution’s unused material?
I.e. material it is not seeking to rely on
Can be important to a D in criminal trial
What is the rule on full and proper disclosure?
R v H and C
Any material held by prosecution which weakens its case/strengthen’s D’s case but is not relied on should be disclosed to the defence
What are the 4 stages of disclosure?
- Investigation stage
- Initial duty of disclosure on the prosecution
- Defence disclosure
- Continuing duty on prosecution to keep disclosure under review
INVESTIGATION STAGE
To meet the duty of disclosure at the investigation stage, all material during investigation must be what? What material does this cover?
- Recorded in a durable or retrievable form and retained
- Material can include: crime reports, records from messages, witness statements, interview records etc.
INVESTIGATION STAGE
What 3 officers does every investigation have and what is their role re disclosure?
- Officer in charge of investigation - ensures proper procedures in place for recording/retaining information
- Investigator (any police oficer conducting investigation) - follows all reasonable lines of enquiry
- Disclosure officer - examines and reveals retained material to prosecutor and defence at prosecutor’s request
INVESTIGATION STAGE
How long does the duty to retain material last once proceedings commence, if D convicted or if appeal against conviction in progress?
Consider progression of case
At least until a decision is taken whether to institute proceedings against a suspect…
- If proceedings commence = until accused is acquitted/convicted/prosecution discontinues
- If D convicted = until released from custody (or 6 months from date of conviction if non-custodial)
- If appeal against conviction in progress = until appeal concluded
INVESTIGATION STAGE
If material comes to light after proceedings have concluded which throws doubt upon safety of conviction, what must prosecutor do?
Consider disclosure of material
INVESTIGATION STAGE
What must Disclosure Officers certify to the best of their knowledge and belief?
That they have complied with their duties under the Disclosure Code of Practice i.e. ensure all relevant unused material is clearly listed and brought to attention of prosecutor
PROSECUTION DUTY OF DISCLOSURE
What is the test for the prosecution’s duty of disclosure of prosecution material to the defence?
Under s3 CPIA
If prosecution material might help the defence it should be disclosed
I.e. capable of undermining the case for the prosecution against the accused / assisting the case for the accused
PROSECUTION DUTY OF DISCLOSURE
In deciding whether material ‘might help the defence’, in what capacity should the prosecution consider the evidence being used?
- In cross-examination
- Supporting submissions that could lead to exclusion of evidence, stay of proceedings as abuse of process, finding that public authority acted incompatibly with ECHR rights
- Suggest (partial) explanation of accused’s actions
- Have a bearing on scientific/medical evidence
PROSECUTION DUTY OF DISCLOSURE
In deciding whether to disclose, does the prosecution only look at each item in isolation?
No - several items together can have an effect even if in isolation they could not undermine prosecution/assist accused
PROSECUTION DUTY OF DISCLOSURE
How is material that is supportive of the prosecution’s case/neutral in its effect but not relied on dealt with in disclosure duty?
Need not be disclosed as disclosure test is not satisfied
PROSECUTION DUTY OF DISCLOSURE
What should be borne in mind with long and complex cases where large volumes of material are seized, including electronic data, in course of investigation?
- Prosecution must encourage dialogue with defence and engage promptly with them
- Prosecution should formulate disclosure strategy and use technology to conduct searches
- Disclosure process should be subject to robust case management from judge
- Flexibility critical; disclosure not a box-ticking exercise and aim should always be to make progress
PROSECUTION DUTY OF DISCLOSURE
By when should prosecution serve initial details of prosecution case (used material)? Details should include sufficient information to allow D and court to take informed view of what?
- No later than beginning of day of first hearing (but really as soon as is reasonably practicable)
- Sufficient details to take informed view on plea, venue for trial, purposes of case management, and purposes of sentencing
PROSECUTION DUTY OF DISCLOSURE
When does the statutory duty of disclosure of unused material arise in the magistrates’ and Crown?
Statutory duty…
- Magistrates’ = only when D pleads not guilty and case adjourned for summary trial
- Crown = when D sent for trial
PROSECUTION DUTY OF DISCLOSURE
What is the common law duty of disclosure and how does it differ from statutory?
- Common law duty of disclosure = responsible prosecutor should advance disclosure of material that may assist defence with preparation of case/bail hearing
- Will arise even if statutory duty has not