Topic 4- Disclosure

Question 1

What are the 3 stages of disclosure?

Answer 1

1- Statutory duty on police to record and retain all information and material

2- Material related to the investigation should be provided by the police to prosecution

3- The prosecution must apply the test under section 3 CPIA 1996, and must disclose any material to the defence

The defence also have a duty to inform the prosecution of their defence case

The prosecution are under a duty to disclose material throughout proceedings

An accused may also make applications for disclosure

Question 2

What statute governs disclosure?

Answer 2

Criminal Procedure and Investigations Act, 1996

Question 3

When do the provisions for disclosure apply?

Answer 3

The provisions apply to any alleged offence for which a criminal investigation has begun

Question 4

Disclosure Officer

Answer 4

This is the police officer responsible for examining the material retained by police during the investigation and for disclosing the material to the prosecution

Question 5

Duty to Record and Retain Material by the Police

Answer 5

The police must record all material relevant to an investigation (eg, incident reports, notebooks, witness statements, interviews, expert reports)

This includes negative information (eg, a person saw nothing unusual)

Question 6

Duty to Reveal Material to Prosecution by the Police

Answer 6

The disclosure officer must list all the 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

Question 7

Disclosure Officer’s Test for Determining Relevant Material to Disclose to Prosecution

Answer 7

Any material that is relevant to the case, but will not be part of the prosecutions case

Question 8

What is classed as sensitive material?

Answer 8

Material which the police believe could create real risk of prejudice to an important public interest

(eg, national security material, undercover officers, child witnesses)

Question 9

Can the police disclose sensitive material to the prosecution?

Answer 9

Yes, however it should be listed in a separate schedule, or disclosed to the prosecution separately

Question 10

Responsibility of the Prosecution to Disclose Material to the Defence

Answer 10

It is the prosecution’s task to review the schedule provided by the police, and to assess the need to make disclosure of the underlying material to the defence

This should be kept under review throughout proceedings

Question 11

What is pre-charge engagement?

Answer 11

Where the prosecutor, defence and investigators enter discussions about an investigation at any time before charge

This helps identify lines of inquiry, narrows trial issues, and resolution of cases

It is entirely voluntary

Question 12

At what stage must disclosure occur?

Answer 12

Disclosure may apply at all stages of a case, from the start of proceedings to post-conviction

Question 13

What is the test for disclosure of unused material by the prosecution to the defence?

Answer 13

The material must be reasonably capable of:

• Undermining the case for the prosecution against the accused,
  OR
• Assisting the case of the accused

This is an objective test and must be impartial

Section 3 CPIA 1996

Question 14

What happens if there is no disposable material for the defence?

Answer 14

The prosecution must make the defence aware of this in a written statement

Question 15

What is unused material?

Answer 15

Unused material can be defined as any material relating to the case which the prosecution does not intend to use

It must be disclosed to the defence if it satisfies the section 3 CPIA test

Question 16

What happens if the prosecution fails to disclose material to the defence?

Answer 16

This is one of the biggest causes of miscarriages of justice

The defence can apply for disclosure to the court if they feel there is undisclosed material

Question 17

Does all unused material need to be given to the prosecution and defence?

Answer 17

Yes, as long as it is relevant to the case

Question 18

What are the time limits for disclosure of unused material to the defence in the Crown Court?

Answer 18

There are no time limits for disclosure

Should usually be as soon as reasonably practicable, usually before the prosecution’s case

Question 19

What are the time limits for disclosure of unused material to the defence in the Magistrates’?

Answer 19

The schedule of unused material must be disclosed to the defence either at the hearing where a not-guilty plea is entered, or as soon as possible following the plea

Question 20

When should a judge usually encourage disclosure?

Answer 20

In a preliminary hearing, the judge should try to impose a timetable of disclosure, to ensure good case management

Question 21

What is the continuing duty of disclosure?

Answer 21

The prosecutor remains under a continuing duty to review questions of disclosure, using s3 test

This duty will likely crystallise on the service of the defence case

However, the prosecution will still be under a duty to disclose even after conviction

Question 22

Can the accused apply for disclosure?

Answer 22

Yes, under section 8 CPIA 1996

If the accused reasonably believes there is material that should be disclosed to him, they can apply to the court for all material which satisfies the s3 test

Question 23

When will a defence statement be served?

Answer 23

Once the case is sent to the Crown Court, and the prosecution case is served

Question 24

What areas are covered in the defence statement?

Answer 24

The nature of the defence, and any particular defences the accused will rely on

The matters of fact the accused takes issue with the prosecution

The matters of fact the accused intends to rely on for defence

Any points of law they wish to take

Question 25

What is a defence statement?

Answer 25

The accused must give a defence statement to the court and prosecutor setting out the basis of their defence

Question 26

How much detail needs to be in the defence statement?

Answer 26

Should not make general and unspecified details

Should be clear and concise

Question 27

What must be included in the particulars of an alibi if given in the defence statement?

Answer 27

The names, addresses, and DoB of any alibi witnesses whom the accused intends to call

Question 28

What is an alibi?

Answer 28

Evidence showing that the presence of an accused at a particular place at a particular time was not at the place where the offence is alleged to have been committed

Question 29

Duty of Notification of Witnesses by the Defence

Answer 29

The defence are under a duty to notify the prosecutor and court of any witnesses they intend to call to trial

Must provide names, addresses and DoBs

This notice must be given in 14 days (MC) or 28 days (CC)

Question 30

Will the defence need to provide a defence statement in summary trials?

Answer 30

There is no obligation, however they can do once the prosecution has complied with disclosure duties

If they choose to do so, must be done within 14 days from date of disclosure

Question 31

What is the time limit for serving a defence statement in Crown Court?

Answer 31

28 days from the prosecution’s disclosure

Defence can apply for an extension if reasonable

Question 32

When may the court impose sanctions for failure in defence disclosure?

Answer 32

If the accused-

• Fails to give initial defence statement required to the Crown Court
• Gives the defence statement after expiry of time limits
• Sets out inconsistent defences, or defences not mentioned in defence statement
• Calls a witness not included in defence statement

Question 33

What happens if the accused fails in their defence disclosure?

Answer 33

The court may comment upon the failure, and may impose a sanction if serious enough (fails to give notice of witness, fails to mention point of law)

The court and jury may also draw inferences from the failure

Question 34

Can the prosecution comment on the defence’s failure to provide defence statements?

Answer 34

No, unless the court allows it

Question 35

What is Public Interest Immunity?

Answer 35

Where material held by the prosecution which satisfies the s3 test cannot be disclosed

This is because it holds a risk of prejudice to an important public interest

The prosecution may make an order to the court that the material is withheld from disclosure

Question 36

Public Interest Immunity (PII) Application

Answer 36

Where there is material which holds a risk of prejudice to public interest, the prosecution can make a PII order to the court to prevent disclosure of the material

The application must be in writing and explain why it would not be in the public interest to disclose the material

Question 37

If the prosecution comply with the disclosure rules, what obligation does this place on the defence?

Answer 37

The defence have a duty to disclose their defence statements to the court and prosecution

Question 38

What are the Prosecution’s obligations in relation to material which is held by a third party (i.e. material not in the Prosecution’s possession)?

Answer 38

If relevant material is held by a third-party, the prosecution are under an obligation to inform the third-party of the investigation and then request for disclosure of that information