Unit 5 Disclosure of unused material and defence statements

Question 1

What are the different stages of disclosure?

Answer 1

(1) Investigators required to record and retain all info and material relevant to the investigation

(2) Material relevant to the investigation but not expected to form part of P case should be provided by police to P for review + a schedule containing all relevant information not relevant to the Ps case must be provided by the police to the prosecutor

(3) P must disclose any material which meets statutory test (CPIA 1996, s. 3), usually with a schedule of all other material recorded and retained

(4) Following service of DS, D may make further applications for disclosure

Question 2

Does the duty of disclosure end after P has initially given D all info that meets the statutory test?

Answer 2

No - it’s a continuing duty until the end of proceedings

Question 3

What duty is D under in relation to telling P about its case?

Answer 3

D is always under a duty to identify the real issues.

But D is only under a duty to provide a defence statement in the CC (not the mags). But if D does not provide a defence statement D cannot apply for specific disclosure.

Question 4

What are the investigators’ duties in relation to disclosure?

Answer 4

(1) The investigators must record and retain all material that is relevant to the investigation

• ‘Relevant’ = interpreted widely
• Includes gathered and ‘generated’ material

(2) Create a schedule of unused material

• I.e. material that has been recorded and retained during the investigations but which is not likely to be used by P
• This MUST be prepared in all CC cases and in cases in the mags in which A is likely to plead NG
• The point of this schedule is that the P needs to be able to decide whether any of the material needs to be disclosed (D may also request disclosure on the basis of this) - this is why the description needs to be clear enough to allow the parties to do this
• The ‘disclosure officer’ prepares this schedule
• In the CC this is prepared on an MG6C form - in the mags they use a simplified version (a so-called ‘streamlined disclosure certificate)

Question 5

In which cases does a schedule of unused materials have to be created?

Answer 5

MUST be prepared in all CC cases and in cases in the mags in which A is likely to plead NG

Question 6

What should the investigators do in relation to ‘sensitive material’ when preparing the schedule of unused material? What is ‘sensitive material’?

Answer 6

• Sensitive material = where disclosure would give rise to a real risk of serious prejudice to an important public interest (e.g. national security, undercover POs, child W)
• What to do? List material in a separate schedule or, exceptionally, disclosed to P separately

Question 7

Describe the way in which the disclosure officer and the prosecution work together in relation to creating the schedule of unused material.

Answer 7

• P can tell DO what is most relevant/important
• DO should draw P’s attention to any material which might satisfy test
• DO must certify to P that to best of his knowledge he has complied w/ Code

Question 8

What do we mean when we say that ‘corporate knowledge’ operates in respect of information which falls to be disclosed?

Answer 8

The prosecution duty to disclose is not rendered redundant if officers withhold information from counsel, or if officers withhold information from one another. E.g. if one police station has relevant information, but the station doing the investigation does not have it, it is still disclosable because ‘the Crown’ has the information (‘the Crown is unitary’).

Question 9

What are the various duties that the prosecution is under in relation to disclosure?

Answer 9

(1) P is responsible for reviewing all material

• I.e. although P does not create the schedule of unused material, P has to review/correct it
• If there is a large quantity of digital material, it is legitimate for P to review by ‘dip sampling’

(2) Limited duty of disclosure at the first hearing

• Before engaging in full statutory disclosure, P has to provide ‘initial details’ at the latest on the morning of the first hearing
• This entails disclosure to the extent required by ‘justice and fairness’. In particular, P should disclose: (1) any material that might help in a bail application – previous convictions of alleged victim; (2) material to help application to stay proceedings as abuse of process; (3) material to help A prepare for trial (e.g. eyewitnesses P won’t use, convictions of P’s witnesses, witness statements that have been withdrawn by P)

(3) Comply with the statutory duty of disclosure

More on this in other flashcards

(4) Continuing duty to review disclosure

• P under a continuing duty to review and apply s.3 test – any new material must be disclosed to D as soon as practicable
• Where court has ruled against disclosure on public interest ground, under continuing duty to review whether still in public interest not to disclose

Question 10

What is the statutory test for disclosure?

Answer 10

P must disclose any P material not already disclosed which might reasonably be considered capable of:

• (a) undermining P case or
• (b) assisting A case

The test is objective

Exception to disclosure: material must not be disclosed under s. 3 if a court has concluded that it is not in the public interest that it be disclosed (s. 3(6)).

Question 11

What does P have to do if there is no disclosable material?

Answer 11

Provide a written statement to that effect + inform the court

Question 12

Describe the procedure that P must follow in disclosing evidence.

Answer 12

(1) P must serve a disclosure management document detailing P’s approach and methodology to disclosure on court and D at an early stage

• Point of this: D invited to submit key words of their own to look through evidence w/ lots of data e.g. computer hard drive

(2) P must disclose evidence

2 ways of doing this:

• (a) providing copy of the material or
• (b) allowing inspection at a reasonable time and place

(3) When P makes disclosure, must serve schedule of unused material given by DO

Question 13

Once disclosure has happened, what info/docs does D have?

Answer 13

(1) They’ve gotten access to the disclosed material

(2) They have a schedule of unused material (most likely not all of which will have been disclosed)

(3) They have a disclosure management document which tells them about P’s approach to disclosure

(4) They will also have access to all the material that P will rely on (i.e. the ‘used’ material) - not sure if this is true

Question 14

What is the time-limit for disclosure of unused material?

Answer 14

In the CC: as soon as reasonably practicable after the happening of a particular event, such as service of P case

In the mags must be disclosed at:

(1) hearing at which NG plea entered or
(2) as soon as possible following formal indication from A/rep that NG plea will be entered

Question 15

What needs to happen in relation to disclosure after the defence has filed their defence statement?

Answer 15

The whole process needs to be repeated (i.e. DO review, draw P’s attention to material, reveal new info, DO certify compliance w/ code)

Presumably the point is that in light of the statement the considerations may have changed

Question 16

What are P’s duties of disclosure after conviction and pending an appeal?

Answer 16

After conviction: common-law duty to disclose material relevant to sentence

Pending appeal: P obliged to disclose material not previously disclosed relevant to an identified ground of appeal

Question 17

Under what circumstances can D apply for specific disclosure and what rules govern such requests?

Answer 17

Requirements:

(1) D must have served a defence statement

(2) P must have responded with further disclosure or written statement

(3) D has reasonable cause to believe P has not disclosed material that should have been disclosed under s. 3

Other rules:

• Cannot be a blanket request
• Not issues that aren’t referable to issues identified in DS
• Can be material actually held/inspected by P or material P entitled to hold/inspect

Question 18

Briefly summarise the division of responsibility relating to disclosure between the investigators and the prosecution? Who is responsible for what?

Answer 18

The investigators are responsible for collating the material and the prosecution is responsible for actually disclosing it but also for reviewing what the investigators have done.

Question 19

When does D have to serve its defence statement?

Answer 19

Remember: serving such a statement is voluntary in the mags

• CC: must be served on court + P within 28 days of P initial disclosure (i.e. point in time at which P complies or purports to comply with disclosure under s. 3)
• Mags: served within 14 days of initial disclosure

Question 20

Can you apply to extend the time-limit for service of the defence statement? What rules govern such applications?

Answer 20

Yes

• must be made before expiry of time-limit and include an explanation
• court will not grant unless not reasonable for A to give DS within the original time limit (e.g. D need more time to review P’s initial disclosure)
• No limit to number of applications

Question 21

What must a Defence Statement include?

Answer 21

(1) nature of defence

(2) matters of fact on which A takes issue and reasons

(3) particulars of matters of fact on which A intends to rely for defence, and

(4) points of law which A wishes to take, w/ authorities relied upon

(5) particulars of any alibi able to assist (name, addresses + DoBs of alibi Ws so far as known - if unknown, any info that might help to ID/locate)

Question 22

When must D notify P of witnesses that they intend to call?

Answer 22

• P is notified of alibi witnesses in the DS
• P must be notified of all other witnesses separately
• In mags: within 14 days of P initial disclosure
• In CC: within 28 days of P initial disclosure
• N.B. these time limits are the same as for service of the DS.
• It’s possible to apply for an extension

Question 23

What are the possible sanctions that can be imposed on D for failing to comply with the requirements in relation to defence statements? What amounts to a ‘failure to comply’? What CANNOT happen as a result of a failure to comply?

Answer 23

Failure to comply:

• (1) fails to give DS in CC case
• (2) gives DS after expiry of time-limit in Mags / CC
• (3) sets out inconsistent defences in the DS
• (4) puts forward a defence at trial not mentioned in the DS
• (5) relies on a matter that should have been mentioned in the DS but wasn’t
• (6) gives evidence of alibi w/o inclusion in DS
• (7) calls a witness w/o inclusion in notice

Sanction:

• Court or jury may draw such inferences as appear proper
• Court may comment adversely on failure in question
• P / co-A may comment adversely on defect in disclosure (But leave of court required if involves: (i) Failure to mention point of law (incl. evidence admissibility or AoP) or authority to be relied on; or (ii) Failure to give notice / adequately ID a W, or on time)
• May make a wasted costs order if the failure has increased P’s costs

The court cannot exclude evidence on this basis

Question 24

What rules govern the disclosure of P evidence which would risk prejudice to an important public interest if disclosed?

Answer 24

• Investigators must record it in a separate, ‘sensitive’ schedule
• P should make a public interest immunity application
• Court can then withhold the information, BUT ONLY to the minimum extent necessary to protect the public interest and MUST NEVER imperil the overall fairness of the trial

Question 25

What must P do in relation to relevant material that may be held by third parties (whether it is material in favour or against P)?

Answer 25

• P must pursue all reasonable lines of inquiry, whether they point towards or away from the suspect
• P under obligation to obtain material from third parties which might be relevant (incl. records held by health and education authorities or financial institutions)
• Third party must be informed of investigation and invited to retain material in case a request for disclosure is made
• Where access/disclosure is refused, P can seek witness summons for the production of documents