SA4/5 Disclosure

Question 1

ASAP and no later than the beginning of the day of the first hearing, the prosecution must serve on the court and the defence (if he requests) the ‘initial details’ of their case.

What do these ‘initial details’ contain:
a) If D is in custody.
b) If D is on bail

Answer 1

a) The circumstances of the offence and D’s criminal record.

b) The above, and:
(i) Any account given by D in interview.
(ii) Any written witness statement that the prosecutor considers material to plea, allocation or sentence.
(iii) Any available statement addressing the effect of the offence on the victim or others.

Question 2

What happens when the prosecution fails to provide initial details?

Answer 2

It would be open to the magistrates to make a direction requiring the prosecution to comply. Failure on the part of the prosecution to comply is likely to result in an adjournment (and possibly a costs sanction).

Court MUST not allow the prosecution to introduce undisclosed information unless D is first allowed ‘sufficient time to consider it’.

Question 3

When trial is in the Crown Court, when should the prosecution witness statements be served on D?

Answer 3

When case is sent to CC for trial as part of the transfer process.

Question 4

When trial is in the magistrates’ court, when should the prosecution witness statements be served on D?

Answer 4

Regarded as ‘good practice’ that D should receive copies of the prosecution witness statement before the trial.

No statutory requirement to do so but happens invariably.

Question 5

What unused material must the prosecution disclose to the Defence (under CPIA 1996)?

Answer 5

Any previously undisclosed material, which might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused.

In both the CC and mags where D has pleaded not-guilty.

Question 6

If, after the prosecution has purported to comply with their disclosure duty D seeks further material, what can they do?

Answer 6

Apply to the court to order further disclosure.

Question 6

What material falls outside of the prosecution’s disclosure obligations in the 1996 Act?

Answer 6

Material that is not in the possession of the prosecution.

Question 7

What is needed for third-party disclosure?

Answer 7

A witness order.

To obtain a witness order, the applicant must show that the material sought is likely to be relevant and it is in the interest of justice for an order to be made.

Question 8

What is the test for public interest immunity?

Answer 8

Whether there is a real risk of serious prejudice to an important public interest if full disclosure of the material is ordered.

Whether D’s interests can be protected without full disclosure.

If limited disclosure might render the trial process unfair to D, fuller disclosure should be ordered even if this may lead to the prosecution discontinuing the case to avoid having to make that disclosure.

Question 9

If there is a hearing to consider public interest immunity, what is D’s involvement.

Answer 9

D may be aware the hearing is taking place but is not permitted to attend and therefore will only be able to make written representations.

In other cases, D may not be aware such a hearing is taking place, if the knowledge would alert them to the nature of the material that the prosecution are seeking to withhold.

It may be necessary to appoint ‘special counsel’ to represent the interests of D but such counsel will not have contact with D.

Question 10

In the Crown Court, upon whom must D serve the defence statement?

Answer 10

The prosecution and the court.

Question 11

In the magistrates, upon whom must D serve the defence statement?

Answer 11

Optional

Question 12

What must the defence statement contain?

Answer 12

a) Set out the nature of the defence, including any particular defences on which D intends to rely.

b) Identify the matters of fact on which D takes issue with the P.

c) Explain why D takes issue with the P on those matters.

d) Give particulars of the matters of fact on which D intends to rely.

e) Indicate any point of law that D wishes to take e.g. admissibility of evidence.

f) Give full particulars of any alibi.

Question 13

In both the CC and the mags,

a) Separate from the defence statement, what information must D provide to the prosecution regarding its intended witnesses?

b) What happens if D doesn’t have this info?

Answer 13

a) The name, address and DOB of each proposed defence witness (except an alibi witness, whose details should be in the defence statement).

Notice identifies the witnesses but not what they intend to say.

b) They must supply any info they have that might be of material assistance in identifying/finding the proposed witnesses.

Question 14

In the mags, what is the time limit for serving the defence statement (if the defence choses to serve one)?

Answer 14

Within 14 days from the day on which the prosecution complied with their disclosure duties.

Court may extend the period if D applies within the period, and the court is satisfied that it would be unreasonable to require compliance with the relevant period.

Question 15

In the CC, what is the time limit for serving the defence statement?

Answer 15

Within 28 days from the day on which the prosecution complied with their disclosure duties.

Court may extend the period if D applies within the period, and the court is satisfied that it would be unreasonable to require compliance with the relevant period.

Question 16

If the defence statement wasn’t given/was given late/isn’t comprehensive etc. or a witness notice wasn’t given/was given late, what are the consequences?

Answer 16

The court may impose sanctions:
* Can comment on the failure
* Court/jury can draw adverse inferences as to D’s guilty.

Not a contempt of court and no power to exclude defence evidence because of non-compliance with disclosure obligations. D cannot be convicted solely on the basis of these adverse inferences and the court cannot prevent the defence from calling the witness/running the defence.

Question 17

Must initial details be served if D enters a guilty plea at the first opportunity?

Answer 17

Yes

Question 18

What is an investigator’s duty ot record?

Answer 18

To record, in durable and retrievable form, all material which may be relevant to the investigation and which is not already recorded.

Includes negative information (e.g. that a number of people present saw nothing unusual).

Material is to be considered potentially relevant unless it is actually incapable of having any impact on the case.

Question 19

What is the duty on the prosecution to list material on a schedule?

To which material does it apply?

In which cases?

Answer 19

Prosecution must list retained material which may be relevant to an investigation but which the disclosure officer believes will not form part of the prosecution case on a schedule.

Any sensitive material (public interest) should be listed in a separate schedule.

Arises in all cases to be heard in the CC/all cases in the mags where the accused is likely to plead not guilty.

Question 20

Where defence statements are inadequate, what should prosecutors do?

Answer 20

Challenge this in writing.

Question 21

What is pre-charge engagement?

In which circumstances does it apply?

Answer 21

Prosecutors, investigators, suspects and suspects’ legal reps may enter into discussion about an investigation at any time after the first PACE interview and before charge.

Such engagement is entirely voluntary and may be terminated at any time.

The guidelines on pre-charge engagement are not applicable to discussions regarding pleas to an allegation of serious or complex fraud, nor to formal agreements relating to the provision of information or evidence about the criminal activities of others.

Question 22

What happens if there is no disclosable material for the prosecution to disclose to the defence under the statutory test in CPIA 1996?

Answer 22

The accused must give a written statement to that effect. The court officer must be informed by the prosecutor at the same time.

Question 23

How is the statutory test under CPIA 1996 approached?

Answer 23

Objectively and impartially.

Question 24

Does s3 CPIA 1996 require the disclosure of material which is either neutral or adverse to the accused?

Answer 24

No.

It is important the trial process isn’t overburdened/diverted by erroneous and inappropriate disclosure of unused prosecution material.

Question 25

What is the duty of disclosure on the defence?

Answer 25

To reveal the case which will be presented at trial.

No impact on legal professional privilege and the accused’s privilege against self-incrimination.

Question 26

When must the prosecutor provide the investigator with the defence?

Answer 26

As soon as reasonably practicable after receipt and they must provide advice on whether there are any further lines of inquiry to be pursued.

Question 27

If D doesn’t provide a defence statement in a case tried summarily, how does this limit his application for specific disclosure?

Answer 27

Once the prosecutor has complied with duty under s6 CPIA 1996, D cannot make an application for specific disclosure under s8 and the court cannot make any orders for disclosure of unused prosecution material.

Question 28

What obligation is on the prosecution regarding material in the hands of third parties?

Answer 28

Prosecution under an obligation to obtain material in the hands of third parties which might be relevant to the prosecution case.

Will do so through issuing a witness summons for the production of documents (unless it is volunteered).

Question 29

What is the time limit to disclose details of defence witnesses if the case is heard in the magistrates’ court?

Answer 29

14 days.