Disclosure

Disclosure

The Prosecution
1. The evidence
  1. both summary trials and trials on indictment, that the prosecution must disclose to the defence all of the evidence on which they propose to rely at trial
    1. case of witnesses that evidence must be put into the appropriate statement form and served on the defence
      1. Documentary evidence should be copied and served
        real evidence (cars, blood samples, weapons, etc) must be made available for inspection and - if necessary – testing
2. The Unused material obligation to record and retain
  1. police investigation will generate a lot of information and material which is not ultimately placed before the trial court as evidence. This is referred to as the “unused material.”
    1. The Code of Practice requires that any potentially relevant material or information which is gathered or generated during an investigation is recorded and retained in some durable form. The officer in charge of the investigation is responsible for ensuring that this is done.
3. The used material: Obligation to consider
  1. As a decision has to be made about whether or not to disclose unused material to the defence there must be an obligation to consider its contents.
  2. police officer called the “disclosure officer” (who may also be the officer in charge of the investigation) to • Examine the unused material • List each item in a schedule (an MG6C) • Highlight anything which may assist the defence or undermine the prosecution case • Serve the schedule on the prosecutor, who will consider what must be disclosed to the defence.
  3. If there is any “sensitive” unused material (e.g., details of an informant) which he feels should not be given to the defence, the disclosure officer should list it on a separate schedule of sensitive material.
    1. Note: the obligation to draw up a schedule of unused material does not arise if the officer believes D will plead guilty in the magistrates’ court.
4. Disclosure: the obligation under s.3 CPIA
  1. prosecutor must disclose to the accused any material which… “might reasonably be considered capable of undermining the case for the prosecution…or of assisting the case for the accused”
    1. The schedule of unused material (though not the “sensitive material” schedule) should be served on the defence when disclosure is made
      1. must be made as soon “as reasonably practicable” (s.13) after sending or transfer or, where there is to be a summary trial, after the not guilty plea is taken. It can be done either by sending copies of the material to the defence or inviting them to inspect it.
5. Dis: The contrary obligation under S.7A
  1. After initial disclosure the prosecutor must, until acquittal/conviction, keep under review the question whether any further material should be disclosed
    1. In addition to the constant duty to review, within 14 days of receiving a defence statement (see below) the prosecutor must make any consequential further disclosure or inform the defence that there is none to be made.
6. Failure to disclose: S.8 application
  1. The defence may demand to see an item listed on the MG6C and the prosecution may refuse to disclose it applying the s.3 test. The defence can make an application under s.8 for a ruling on the matter.
7. Public Interest Immunity : PII
  1. If the prosecutor does not wish to disclose sensitive material to the defence which would otherwise fall to be disclosed under the test in s.3 and s.7A, a public interest immunity application must be made to the court.
  2. Where there is such a risk, if there cannot be a fair trial without disclosure or limited disclosure, the court must order disclosure to the extent that fairness is secured – even if that forces the Crown to offer no evidence rather than make disclosure
    1. 1. Where possible, the defence must be notified of the application, told the category of material held (e.g. details of a surveillance operation) and given an opportunity to make representations. 2. Where to reveal the category of material might amount to or lead indirectly to disclosure, the application should be made ex parte (i.e. in chambers without the defence present), with the defence being given notice of the application but not of the category of information. For example, the prosecution may not wish to reveal the identity of an informant and they may seek to protect his identity. But it may be that in the circumstances of the case, if they tell the defence they are making an ex parte application to protect an informant’s identity, it will be perfectly obvious who the informant is. 3. Where to reveal the fact of an application might have the same result, the hearing will be ex parte without notice
The Defence
1. The Defence Statement: s.5 and 6A CPIA
  1. Within a specified period after prosecution initial disclosure
    1. 14 days for magistrates’ court trials 28 for Crown Court trials
    2. the accused must (or “may” if the trial is summary) give a written defence statement to the court
      1. prosecutor, which • Sets out the nature of D’s defence, including any particular defences relied upon. • Indicates the factual matters on which D takes issue with the prosecution. • Sets out, in the case of each such matter, the reason why D takes issue with the prosecution (where defence is alibi, the statement must say where the defendant was at the time of the offence). • Sets out particulars of the matters of fact on which he intends to rely • Where defence is alibi, gives the particulars of any person able to give evidence in support of the alibi (i.e. the name, address and date of birth of the witness - though not the witness’s statement) • Indicates any point of law to be taken and authorities relied on.
2. Notice of intention to call defence witnesses: s.6C CPIA
  1. Under s.6C, within 14 days after prosecution initial disclosure
    1. • The defendant must give notice whether or not “he intends to call any persons (other than himself) as witnesses”.
      1. • This “Notice of Intention to call Defence Witnesses” must particularise each witness (i.e. names, addresses and dates of birth - though no statements taken from the witness/es need be served)
        • It need not include alibi witnesses, who will already appear in the Defence Statement
        ***If the defence change their mind about who they are going to call (whether by addition or deletion) they must serve an Amended Notice of Intention
3. Expert evidence
  1. the defence must serve on the prosecution the statement of any expert witness on whom they rely “as soon as practicable” after sending. As the law stands at present, if they have instructed an expert whose opinion goes against the defence, they do not have to disclose to the prosecution the fact that the expert was instructed.
4. Failure to comply with defence disclosure obligations: s.11 CPIA
  1. At trial inferences can be drawn against D if he fails to serve a defence statement
  2. serves it late
  3. sets out inconsistent defences in his defence statement,
  4. at trial, goes beyond his defence statement (e.g. calls witnesses not previously identified properly or at all
  5. relies on matters not covered as required by the Act in his defence statement).
5. under no obligation to serve evidence or unused material
  1. don’t have to serve on the prosecution the statements of witnesses they propose to call at trial (unless that witness is an expert)
    1. if they have in their possession material or information which assists the prosecution and undermines the defence then the general rule is that they can keep quiet about it.
      1. is tell the prosecution what their defence is by serving a defence statement. The contents of that statement is dictated by the CPIA.

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	Created by Yana Hasan almost 9 years ago