Topic 4- Disclosure Flashcards
What are the 3 stages of disclosure?
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
What statute governs disclosure?
Criminal Procedure and Investigations Act, 1996
When do the provisions for disclosure apply?
The provisions apply to any alleged offence for which a criminal investigation has begun
Disclosure Officer
This is the police officer responsible for examining the material retained by police during the investigation and for disclosing the material to the prosecution
Duty to Record and Retain Material by the Police
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)
Duty to Reveal Material to Prosecution by the Police
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
Disclosure Officer’s Test for Determining Relevant Material to Disclose to Prosecution
Any material that is relevant to the case, but will not be part of the prosecutions case
What is classed as sensitive material?
Material which the police believe could create real risk of prejudice to an important public interest
(eg, national security material, undercover officers, child witnesses)
Can the police disclose sensitive material to the prosecution?
Yes, however it should be listed in a separate schedule, or disclosed to the prosecution separately
Responsibility of the Prosecution to Disclose Material to the Defence
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
What is pre-charge engagement?
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
At what stage must disclosure occur?
Disclosure may apply at all stages of a case, from the start of proceedings to post-conviction
What is the test for disclosure of unused material by the prosecution to the defence?
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
What happens if there is no disposable material for the defence?
The prosecution must make the defence aware of this in a written statement
What is unused material?
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
What happens if the prosecution fails to disclose material to the defence?
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
Does all unused material need to be given to the prosecution and defence?
Yes, as long as it is relevant to the case
What are the time limits for disclosure of unused material to the defence in the Crown Court?
There are no time limits for disclosure
Should usually be as soon as reasonably practicable, usually before the prosecution’s case
What are the time limits for disclosure of unused material to the defence in the Magistrates’?
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
When should a judge usually encourage disclosure?
In a preliminary hearing, the judge should try to impose a timetable of disclosure, to ensure good case management
What is the continuing duty of disclosure?
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
Can the accused apply for disclosure?
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
When will a defence statement be served?
Once the case is sent to the Crown Court, and the prosecution case is served
What areas are covered in the defence statement?
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
What is a defence statement?
The accused must give a defence statement to the court and prosecutor setting out the basis of their defence
How much detail needs to be in the defence statement?
Should not make general and unspecified details
Should be clear and concise
What must be included in the particulars of an alibi if given in the defence statement?
The names, addresses, and DoB of any alibi witnesses whom the accused intends to call
What is an alibi?
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
Duty of Notification of Witnesses by the Defence
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)
Will the defence need to provide a defence statement in summary trials?
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
What is the time limit for serving a defence statement in Crown Court?
28 days from the prosecution’s disclosure
Defence can apply for an extension if reasonable
When may the court impose sanctions for failure in defence disclosure?
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
What happens if the accused fails in their defence disclosure?
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
Can the prosecution comment on the defence’s failure to provide defence statements?
No, unless the court allows it
What is Public Interest Immunity?
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
Public Interest Immunity (PII) Application
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
If the prosecution comply with the disclosure rules, what obligation does this place on the defence?
The defence have a duty to disclose their defence statements to the court and prosecution
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)?
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
What is the time limit for serving a defence statement after prosecution’s initial disclosure in Crown Court?
Within 28 days
What is the time limit for serving a defence statement after prosecution’s initial disclosure in Magistrates’ Court?
Within 14 days
If a witness has told the prosecution that the accused has an alibi, what should the prosecution do?
They must tell the Defence, as it is prosecution material which might undermine the prosecution’s case
