Week 3 - Disclosure Flashcards
Can a defence solicitor ask for advanced information (i.e copies of statements) to help decide how defendant will plead?
Yes.
The prosecution is required, on request, to supply the defence with a summary or the prosecution and / or copies of statements of the purposes witnessed .
The defence is entitled to this to consider how the defendant will plead.
This has no relevance to wether the material undermines the prosecution case or not.
Does a failure, by the prosecution or defence, to comply with rules of disclosure affect the trial?
Is the court under an obligation in such circumstances to adjourn the trial?
Yes. Any failure.to comply with disclosure rules MAY affect the trial
A failure to comply by the prosecution means the accused does not have to make defence disclosure.
The court is NOT under obligation to adjourn the trial.
A failure to comply may mean the trial is stayed for abuse of process, this is not necessarily always the case. R v feltham.
Any restrictions on who can be disclosure officer?
Can a non sworn in member of police staff do this?
Generally speaking - No restrictions .
But a person must not be disclosure officer if it is likely to have a conflict of interest - i.e that disclosure officer is the victim of the alleged crime
Yes unsworn support staff can do this.
Once the prosecution have provided initial disclosure how long do the defence have to give a defence statement to the court and prosecutor?
14 days for summary proceedings
28 days for crown court proceedings
To give..
- A compulsory defence stmt under S.5 criminal procedure and investigations act 1996
- A voluntary defence stmt under S6 of this act
- A notice of intention to call any person other than themselves as a witness under S6c of this act (alibi witness)
How long must material be kept for following a conviction and receipt of a custodial?
Marerial which may be relevant must be retained until ..
The person is released.from custody or discharged from hospital (where custodial sentence or hosptial order have been given)
In all other cases, for six mths from .date of conviction.
If the person is released earlier than 6 mths from date.of conviction then material must still be retained for 6mths from date of conviction
What if investigator, disclosure officer or prosecutor seeks to access material from a third party (i.e social services/GP etc) but thag 3rd party declines/refuses to allow access… what can be done?
If it is beleived reasonable to seek production of the material and requirements of S2 criminal.procedure act 1965 or S97 magistrates act 1980 are satisfied then the prosecutor or investigator should.apply.for a witness summons causing a representative of that 3rd party to produce the material at court
Disclosure.. grouped into 2 main areas
1) material the prosecution will use in court to prove the case against the defendant
2) all other material not forming part of the prosecution case which might have a bearing on the decision the court makes
What act is disclosure covered under?
Criminal procedure and investigations act 1996
Part 1 - procedures for disclosure and the effects of failing to comply with the act
Part 2 - the duties of police officers in relations to disclosure
What are the 3 R’s in relation to disclosure procedures
Record
Retain
Reveal
Where the defence are.obliged to make disclosure to the prosecution and fail to do so… the court / jury may do what?
Draw inferences as appear proper in deciding the guilt or innocence of the accused
If the prosecution fail to comply with disclosure then the accused does not have to make defence disclosure… no inference can be drawn from the absence if defence disclosure is not made due to a failure to comply with disclosure by the prosecution
.
If prosecution fail to comply with disclosure what are the possible .consequences?
Action for damages or other such relief as the court sees fit under the human rights act 1998 (particularly re article 6 - right to fair trial).
A stay on the proceedings (although this is not automatic).
( R v feltham -if there is sufficient credible evidence apart from the the missing evidence which if beleived would justify a safe conviction then the trial should proceed )
Further adjournment is possible
R v feltham
If there is sufficient credible evidence apart from the the missing evidence which if beleived would justify a safe conviction then the trial should proceed.
R v brooks…
If the court is satisfied that the prosecution had deliberately withheld evidence from the court or frustrated the defence, then the court had power to stay the prosecution.
If the court was not so satisfied then it would consider wether a fair trial was possible
.
The prosecution are required to provide sufficient disclosure to enable the defendant to pesent their case
.
Where there has been non disclosure at the time a plea is entered, a defendant who pleaded.guilty should not be in a worse position that a defendant who pleaded not guilty
.
Under Part 8 Criminal procedure rules 2015
For a case that can be tried at Magistrates court… when must initial details of the prosecution case be provided?
What must those inital details include?
As soon as is practicable and no later than the beginning of the day if the first hearing
Must include:
A) Where in police custody immediately before the 1st hearing:
- a summary of the circumstances of the offence
- the Defendants criminal record
Where A) does not apply
- a summary of the circumstsnces of the offence
- any account defendant given in interview
- any written witness stmt or exhibit that the prosecutor has avail and considers material to plea, or allocation of case for trial, or to sentence
- defendants criminal record
- any stmt on the effect of the offence.on a victim, their family or others (a VPS)
Article 6 ECHR -right to fair trial -supports the need to provide advance information to the defence and that this should be done as soon as possible…..
Article 6 states that a person is…
.. to be informed promptly…. and in detail, of thw nature and cause of the accusation against him
It further states that the accused is entitled to…
… have adequate time.. for preparation if his defence
R v strartford…. re article 6
Article 6 does not give an absolute right to pre trial disclosure, it will be a question of whether the defendant can have a fair trial
Initial information to be procided to defence.. to include the following:
Copy of custody record
Copies of taped interviews
Copy.of any 1sr description where relevant
Significant information that might affect a bail decision or enable the defence to contest the allocation hearing
Any material relevant to sentence (i.e anything which may mitigate the seriousness of the offence, or assist the accused to lay blame upon another person)
Statements and/or summary of the prosecution case
Copy of any video evidence
Where a person has made several stmts when would they NOT have to all be disclosed?
If all relevant evidence for prosecution is contained in 1 stmt.
R v lane…
Witness giving partial stmt due to fear of repercussions…
Witness refused to put incriminating evidence into stmt due to fear of repercussions….
Police had notified the prosecution if the witness’s increased knowledge but the prosecution had failed to notify the defence that the stmt had been a partial account..
Court of appeal held that the atmt was untruthful as it had not disclosed all information it should have… the witness should have been told to make a full stmt or nothing (and been abandoned as a witness). They should not have been allowed to make a partial stmt.
Aim of disclosure?
To make sure the defendant gets a fair trial and to speed up the whole trial process
To try and ensure that nothing which might assist the defence was kept from the accused
When does the duty on the prosecution to disclose end?
Contibuing duty until the accused is convicted, acquitted or the prosecutor decides not to proceed with the case
What is Material ?
Material of any kind, including information or object, which is obtained in the course if a criminal investigation and which may be relevant to the investigation.
Includes material coming into the possession of the investigator (i.e from a search) and also material generated by the investigator (ie interview notes)
When is material relevent?
If it appears to the investigstor or OIC or disclosure officer that it has some bearing on any offence under investigation, any person being investigated or the surrounding circumstances if the case…
UNLESS … it is incapable of having any impact on the case.
What is sensitive Material?
Any material, the disclosure of which, the disclosure officer believes would give rise to a REAL risk of serious prejudice to an important public interest
Duty of prosecution to disclose any material which he has in his possession which may reasonably considered capable of doing what.?
Undermine the prosecution case against the accused or assist the defence
S1 criminal procedure and investigations act 1996 defines what re disclosure
Defines the types of cases to which the disclosure provisions apply.
In reality this applies to all cases other than those where the defendant pleads guilty at Magistrates court.
S1 criminal law act 1996 also defines a criminal investgato3on.. as what?
A criminal investigation is an investigation which police officers or other persons have a duty to conduct with a view to it being ascertained-
A) whether a person should be charged with an offence
B) whether a person charged with an offence is guilty.of it
Disclosure officer can be police or civilian
.
‘Material’ includes information given orally.
Where relevant material is not recorded in anyway it will need to be reduced into a suitable form
.
Material which undermines the prosecution case..
Consists mainly of material which raises question marks over the strength of the prosecution case , the value of evidence given by witnesses, and issues relating to ID.
Previous convictions and other matters that might affect the credibility of a witness may undermine the case as it may affect the value of the witness’ testimony. (This may come to light after initial disclosure where for example it becomes known that the witness bears a grudge against the defendant )
If officers feel that the material is not relevant to the prosecution case but may be useful to the defence in cross examination then it may well fall into category of material which undermines the prosecution.
The extent of the investigation should be proportionate to the seriousness of the matter being investigated.
What is reasonable may well depend on factoes such as staff and resources , seriousness of the case, strength of evidence, nature of line of inquiry to be persued.
If in doubt, contact CPS for guidance
Negative result from inquiries
Negative results can sometimes be as significant to an investigation as positive ones
(CpS disclosure manual)
(May be a result of an inquiry that differs from what might be excepted given the circumstances )
Negative results may include:
- CCTV canera that didn’t record the crime/location/suspect in a manner consistent with the prosecution case.
- where a number of people present at the location at the time an offence is alleged state they didnt see anything unusual
- where a f/print at a crime scene cannot be ID’d as a known suspects
- any other faiure to match a crime scene sample to one taken from the accused
When dont you need a SDC (streamlined disclocure certificate)?
If accused charged with summary offence or an either way offence that is likely to remain in magsistrates court , and it is thought the accused will plead GUILTY
In every case, irrespective of anticipated plea, if there is material known to the disclosure officer that might assist the defence with early preparation of their case (or at a bail hearing) (i.e a witness has withdrawn their stmt, or a witness has relevant previous convictions), then a note must be made on the MG5 and the material disclosed to the prosecutor who will disclose it to the defence ( if they think it meets the common law test)
.
For cases to be heard in crown court, the unused material schedules (MG6 series) are used.
The disclosure officer must ensure that a schedule is prepared in the following circumstances :
- the accused is charged with an offence triable only on indictment
- the accused is charged with an offence triable either way and it is considered that the case is likely to be triable on indictment
Sensitive material for crown court…
What type of material is sensitive ?
Material relating to national security
Material received from the intelligence and security agencies
Material given in confidence
Material relating to the identity of informants or undercover officers, or anyone supplying info to police who may be in danger if identity revealed
Material relating to location of premises or other place used for police surveillance , or identity of any person allowing police to use them for surveillance
Material revealing techniques and methods relied upon by police (i.e covert surveillance techniques)
Material whose disclosure might facilitate the commission of other offences or hinder .prevention or detection of crime
Material upon the strength of which search warrants were obtained
Material containing details of persons taking part in ID parades
Material supplied which relates to a child or young person and whicb has been generated by a local authority social services, or an area child protection committee or other person contacted by an investigator during an investigation
Material relating to the private life of a witness
Where info is so sensitive it would lead to loss of life of directly threaten national security then the existence of such material must be revealed to the prosecutor seperatly and not on the sensitive schedule
This must be done as soon as reasonably practicable after the file has been submitted to the prosecutor.
The investigator must ensure that the prosecutor is able to inspect the material so they can assess whether it is disposable and if so, if it needs to be brought before a court for a ruling on disclosure
Criminal procedure investigations act 1996.
What level of disclosure is placed on the prosecution? I.e sufficient disclosure to enable what?
Sufficient disclosure to enable to defence to present their case
Criminal procedure and investigations act 1996.
Consider the term ‘investigation’ under this act… what does it mean?
An investigation conducted by police officers with a view to it being ascertained whether a person should be charged with an offence, or whether a person charged is guilty of it.
This will inckude:
- Investigations into crimes that have been committed
- investigations whose purpose is to ascertain whether a crime has been committed with a view to possible criminal proceedings
- investigations which begin in the belief that a crime may be committed (eg when pokice keep premises or individual under observation for a period of time with a view to possible criminal proceedings)
R v johnson…
In relation to disclosing information… r v johnson’s ruling was based on protection of what?
Protection of the owner or occupier of premises
In disclosure… to ensure defendants get a fair trial they may receive advanced disclosure.. what is this?
Material that the defence are entitled to have in order to consider whether to plea guilty or not guilty
The rules of disclosure do not apply when?
when a defendant pleads guilty at a magistrates court
If defence fail to provide defence statements within appropriate time period what effect will this have on the case?
S5 Criminal prodedure and investigations act 1996
The court may make suh comment as appear appropriate or the court or jury may draw such inferences as ap
pear proper
An Interview with alibi or defence witness…
Must be made WHERE PRACTICABLE by audio recording or visual recording with sound.
If the accused’s solicitor has been given reasonable notice of time/location then their failure to attend will not prevent the interview from going ahead
The accused’s solicitor may only attend the interview if the witness has consented to his presence … and may only attend as an observer.
