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Criminal > T5 - Disclosure of unused materials and Defence statments > Flashcards

T5 - Disclosure of unused materials and Defence statments Flashcards

1
Q

What is “unused material”

What happens during the course of a police investigation?

A

The police gather various types of material, such as:

Witness statements

Suspect interviews

Photographs

Physical exhibits

Crime complaint forms

Telephone call records with witnesses

Forms provided to suspects

Custody records (detailing suspect detention)
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2
Q

What determines whether material is used at trial?

A

Material must:

  1. Prove something against the defendant, and
2. Be admissible in court.

If it does not meet both criteria, it becomes unused material.

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3
Q

Why is unused material significant?

A

Historically, failure to disclose unused material has caused miscarriages of justice.

Even though the material is retained by the police, it wasn’t always disclosed to the defence.

Regulatory rules now ensure the defence receives appropriate disclosure.

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4
Q

Which offences are sent to the Crown Court?

A

1.Indictable-only offences, and

  1. Either-way offences where:a) The defendant elects Crown Court trial, orb) Magistrates decline jurisdiction
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4
Q

PROSECUTION’S SERVICE OF EVIDENCE Magistrates’ Court Trials

Q: What happens after a not guilty plea in a summary or either-way offence?

A
  1. The case is adjourned for trial
  2. Before trial, the prosecution must serve the full case on the defence, which includes:a) Written statements they will rely onb) Documentary exhibitsc) Photographsd) A list of unused material
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5
Q

Q: What happens once a case is sent to the Crown Court under s.51 CDA 1998?

A

D who charged with IOO or EWA are to be dealt in the CC under S.51 ( the MC decline jurisdiction or D elected)

Case send under S.51 appear in CC in PTPH (within 28 days)

It must appear at a Plea and Trial Preparation Hearing (PTPH) within 28 days of sending.

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6
Q

What must the CPS serve before the PTPH?

A

At least 7 days before the PTPH, the Crown Prosecution Service must provide:

1) A draft indictment

2) A summary of the case

3) Key statements and exhibits (those identified as important for plea and case management)

4) Other relevant documents, such as the Defendant’s previous convictions
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7
Q

When is the full file of prosecution evidence due?

A

Within 50 days of the sending if the defendant is in custody

Within 70 days if the defendant is on bail

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8
Q

Which law regulates the handling of unused material?

A

The Criminal Procedure and Investigations Act 1996 (CPIA) and the Codes of Practice issued under it.

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9
Q

What legislation regulates the handling of unused material in criminal investigations?

A

The Criminal Procedure and Investigations Act 1996 (CPIA) and its associated Codes of Practice.

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10
Q

Who is responsible for retaining and managing unused material in a criminal investigation?

A

The disclosure officer. In most cases, this is the officer in charge (OIC), unless a dedicated disclosure officer is appointed (e.g. in large-scale investigations).

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11
Q

What is the duty of the disclosure officer under the CPIA Code (para 5)?

A

To retain any material that might be relevant to the investigation.

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12
Q

What is ‘unused material’?

A

Material that is relevant to the investigation but is not used as part of the prosecution’s case at trial.

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13
Q

What types of unused material might be retained?

A

Material supportive of the defence,

Neutral material,

Routine items like custody records, or police forms.

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14
Q

Does all unused material have to be disclosed automatically?

A

No — unused material is not automatically disclosed. It depends on the development of the case and whether a trigger event occurs.

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15
Q

What are the trigger events under s1 CPIA that activate the duty to consider disclosure?

A
  1. A not guilty plea in magistrates’ court + case adjourned for summary trial (for summary-only or either-way offences where court have accepted jurisdiction );
  2. The case is sent to the Crown Court (either-way offence with not guilty plea + election or jurisdiction declined, or indictable-only offence).
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16
Q

If a defendant pleads guilty in magistrates’ court, do the CPIA disclosure rules apply?

A

No, there is no statutory duty to disclose unused material unless a trigger event occurs.

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17
Q

Can the prosecution disclose unused material even before a trigger event?

A

Yes, under common law, they should consider disclosure if it could significantly help the defence — e.g. for bail applications.

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18
Q

What are the two limbs of the statutory test under s3 CPIA?

A
  1. Does the material undermine the case for the prosecution?
  2. Does the material assist the case for the defence?
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18
Q

Where is the test for disclosure of unused material set out?

A

In section 3(1) of the Criminal Procedure and Investigations Act 1996 (CPIA).

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18
Q

What happens once a trigger event occurs?

A

The prosecution must review unused material and decide if it should be disclosed, to avoid unnecessary disclosure of irrelevant material.

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19
Q

Is the test for disclosure of unused material subjective or objective?

A

It is an objective test — based on what might reasonably be considered capable of affecting the case.

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19
Q

What happens if the material satisfies either limb of the test?

A

The prosecution must disclose it to the defence.

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19
Q

In what forms can disclosure be made?

A

Providing copies of documents,

Allowing examination of physical objects,

Letting the defence examine documents (e.g. at the police station).
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19
What does s3(1) CPIA require the prosecutor to do?
To disclose to the accused any prosecution material not previously disclosed that might reasonably be considered capable of: 1. Undermining the case for the prosecution, or 2. Assisting the case for the defence.
20
What is the MG6C form used for?
It is a form used to list non-sensitive unused material gathered during an investigation, prepared by the disclosure officer.
21
What aids the prosecution in applying the test for disclosure?
Guidelines issued by the Attorney General, which provide detailed factors the prosecution should consider when reviewing unused material.
22
Who prepares the MG6C form and when?
The officer in charge (OIC) prepares the MG6C form when preparing the full file of evidence for the CPS.
23
What kind of material is usually listed on the MG6C form?
Common items include: 1. Custody records 2. Forms given to the defendant when interviewed 3. Crime complaints It may also include: 1. Previous convictions of other suspects not charged 2. Witness statements that support the defence or are not helpful to the prosecution.
24
What happens to the MG6C form after it is completed by the OIC?
It is sent to the CPS along with the full file of evidence for review and trial preparation.
25
What does the CPS do with the MG6C form?
The CPS reviews the evidence and the unused material list, and decides what must be disclosed under section 3 of the CPIA.
26
How are CPS disclosure decisions recorded?
The CPS endorses decisions directly on the MG6C form, which includes a specific column for this purpose.
27
What is provided to the defence regarding unused material?
A copy of the MG6C form is served on the defence, along with any unused material that is being disclosed.
28
What is the purpose of providing the MG6C form to the defence?
To inform the defence about the existence of unused material and whether it is being disclosed or withheld.
29
What is sensitive unused material in the context of criminal investigations?
Sensitive unused material includes items such as: 1. Information from police informants 2. Anonymous tips from members of the public 3. Details of police investigative techniques
30
What does Section 3(6) of the CPIA state about disclosure?
Material must not be disclosed if it would not be in the public interest to do so.
31
Why is material from informants often not disclosed?
Disclosing it could reveal their identity, leading to a loss of future intelligence and putting them at risk.
32
What is another term for sensitive unused material?
Public Interest Immunity (PII) material.
33
Is the same disclosure test used for sensitive and non-sensitive material?
Yes, the same test is applied to both: does it undermine the prosecution or assist the defence?
34
What happens if the sensitive material fails the disclosure test?
If the material does not meet the disclosure test, it is retained undisclosed by the prosecution.
35
What happens if the sensitive material passes the disclosure test?
The material must be put before a judge (usually the trial judge) to decide if it should be disclosed.
36
What does the judge consider when deciding on disclosure of PII material?
The judge balances the potential damage to the public interest against the defendant’s right to a fair trial.
37
What are the judge’s options if the material could assist the defence or undermine the prosecution?
The judge MAY: 1. Order disclosure of the material, or 2. Allow the prosecution to discontinue the case instead of disclosing it.
38
What if the judge decides the material should not be disclosed?
The material is retained by the prosecution, but the judge must keep it under review during the trial.
39
What duty does the prosecution have after initial disclosure decisions?
The prosecution must keep all disclosure decisions under review, especially after the defence statement is received (see s7 CPIA).
40
Can sensitive material ever be disclosed in a limited form?
Yes, disclosure can be made in redacted form, with sensitive information removed to protect public interest.
41
Are there statutory time limits for the prosecution to disclose unused material?
No, the CPIA does not impose statutory time limits for disclosure of unused material.
42
Who sets the timeframes for disclosure of unused material in criminal cases?
The court, through its case management functions, sets specific disclosure dates for each case.
43
When should the prosecution aim to disclose unused material?
As soon as reasonably practicable after a relevant disclosure trigger and ideally at the same time as the service of the evidence against the defendant.
44
How is disclosure managed in the magistrates’ court?
A disclosure order is usually made at the First Hearing Review, setting a date for service of unused material.
45
How is disclosure managed in the Crown Court?
A disclosure order may be made at the Preliminary Hearing. Typically, unused material is served with the full file of evidence before the Plea and Case Management Hearing (PCMH), though local protocols may vary.
46
Can standard directions be used for disclosure timelines?
Yes, in some areas, standard directions may govern when unused material must be served.
47
What might happen if the prosecution fails to disclose unused material on time?
There may be consequences for the prosecution, though this is addressed separately in the rules and case law.
48
What is third party disclosure in criminal proceedings?
It refers to unused material not in police possession, but held by a third party, such as a local authority or other external body
49
Give an example of when third party material might be relevant.
Records held by a local authority about a child’s care may be relevant in trials involving neglect, violence, or sexual offences against that child.
50
What duty do the police have regarding third party material?
The police must investigate all lines of enquiry, including material held by third parties.
51
What should happen if relevant third-party material comes into police possession?
If the police obtain the material and it is relevant, they must retain it like any other unused material.
52
What if the material remains with the third party and is not in police possession?
The police should inform the third party that the material must be retained in case the Defence applies to inspect it.
53
Can the Defence apply for disclosure of third party material?
Yes, procedures exist for the Defence to seek disclosure of third party documents, but the details are off syllabus.
54
What can the defence do if the prosecution fails to disclose relevant unused material?
The defence can apply to the court for a disclosure order under Section 8 of the CPIA.
55
What are the 3 requirements for the defence to make a s8 CPIA application?
1. The defence must have served a defence statement. 2. The prosecution must have either: a) Reviewed the statement and decided not to disclose, or b) Failed to carry out any review. 3. The defence must have reasonable cause to believe the prosecution holds undisclosed material that should be disclosed.
56
Can the defence apply for disclosure without knowing what specific material exists?
No, the defence cannot go on a “fishing trip”—they need reasonable cause to believe relevant material exists.
57
What can the defence do if the prosecution doesn’t follow the disclosure timetable?
Apply under s8 CPIA if they know of specific material. Alternatively, apply to stay proceedings for abuse of process if the failure affects fairness.
58
What does s10 CPIA state about delays in prosecution disclosure?
A failure to comply with time limits alone is not grounds to stay proceedings. The delay must deprive the defendant of a fair trial for a stay to be granted.
59
Are the defence required to share witness statements or other evidence with the prosecution?
No, the defence are not under a duty to provide witness statements or evidence to the prosecution.
60
What must the defence provide instead of witness statements?
They must provide a defence statement and, if applicable, a list of defence witnesses.
61
What legislation governs defence statements?
Sections 5 and 6 of the Criminal Procedure and Investigations Act (CPIA).
62
What must be included in a defence statement under s6A CPIA?
The nature of the defendant’s defence. What issues they take with the prosecution’s case and why. Any points of law that will be raised. If relying on alibi, the names, addresses, and DOBs of supporting witnesses. The statement must be signed and dated by the defendant.
63
Is serving a defence statement compulsory in the magistrates' court?
No, it is optional with no legal consequences for not serving one (per s6 CPIA). In practice, defence statements are rarely served in the magistrates’ court.
64
Is serving a defence statement compulsory in the Crown Court?
Yes, it is compulsory, though failure to comply does not amount to contempt of court.
65
What are the time limits for serving a defence statement?
Magistrates’ court: 14 days after prosecution disclosure (if served voluntarily). Crown Court: 28 days after prosecution disclosure (compulsory).
66
According to s5 CPIA, when must the defence provide their statement in the Crown Court?
After the prosecution has: 1. Served the evidence it will rely on. 2. Complied with disclosure requirements under s3 CPIA.
67
What does s11 CPIA say about failures to comply with s5?
Not providing a defence statement. Serving it late. Introducing a defence at trial that is inconsistent with or missing from the statement (e.g. an alibi). Arguing a legal point not contained in the statement.
68
What are the consequences of failures under s11 CPIA?
The prosecution or co-defendant may comment on the failure during trial. The court or jury may draw adverse inferences in deciding guilt.
69
What does Section 6C of the CPIA require from the defence?
The defence must provide the prosecution with a list of all witnesses (other than the defendant) that they intend to call to give evidence.
70
What information must be included about each defence witness under s6C CPIA?
Full name Address Date of birth
71
Are there time limits for providing defence witness details?
Yes, new regulations set time limits, and s11(4) CPIA outlines the consequences for failing to comply
72
If alibi witness details are already provided in a defence statement under s6A, do they need to be repeated under s6C?
No, if details are given under s6A, they do not need to be repeated under s6C.
73
Are the requirements of s6C separate from the defence statement provisions?
Yes, s6C disclosure is separate and applies independently from the defence statement.
74

Criminal (27 decks)

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