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(4.2) Pre-trial and confessions - Coggle Diagram
(4.2) Pre-trial and confessions
Disclosure - prosecution
Investigative material
Used material:
Material prosecution will rely upon at trial to prove its case against D. They consist of of case papers and other material that forms part of the evidence in the case, such as:
statements from the prosecution witnesses
D's record of taped interview
other document exhibits like pans and diagrams that are relevant to proving the case
It's from these materials that D will know what the cases against them are
Unused material:
Material
not
being relied upon by prosecution, such as
statements from witnesses that the prosecution is not relying upon at trial to prove its case
records of previous convictions of prosecution witnesses
disciplinary findings against police officers
Importance:
Unused material can be extremely important to D in a criminal trial, where if material is believed, its enough to convict D of a criminal charge. In the same case there might be other witnesses who throw doubt on this
If prosecution reviewed all the material available, and that its in the public interest to prosecute the case, it would be wrong to only reveal to D the material that supports its case and not the material one that does not
Fairness demands that material in the hands of the prosecution that might help D is served on that D
D may choose to present that material in defence at trial
Main Disclosure Provisions
Criminal Procedure and Investigations Act (CPIA) 1996
Code of Practice on Disclosure (S.23 CPIA)
Criminal Procedure Rules (CriminalPR) Part 15
AG's Guideline's on Disclosure
Judicial Protocol on Disclosure and Unused Material
4 Stages of Disclosure
Full and proper disclosure:
Follows that full and proper disclosure is at the heart of a fair system of criminal justice. It's a vital part of the preparation for trial
For this reason rules are developed as to both the duty to disclose unused material and for the duty to retain material during a criminal investigation
4 stages of disclosure:
Investigation stage - duty to record and retain material during the investigation;
Initial duty of disclosure on prosecution;
Defence disclosure
Continuing duty on the prosecution to keep disclosure under review
(1) Investigation stage:
The duty to retain and record relevant material:
Under Disclosure Code of Practice, during a criminal investigation all material which may be relevant to the investigation must be recorded in a durable/retrievable form and retained
Every investigation will have:
an officer in charge of investigation
- responsible for directing investigation + ensuring proper procedures are in place for recording info and retaining them
an investigator
- namely any police officer conducting the investigation and
a disclosure officer
- responsible for examining material retained and revealing material to the prosecutor and defence at the prosecutor's request
Duty to retain + record relevant material:
All material which may be relevant to a criminal investigation must be retained, particularly:
crime reports
records of tapes/telephone messages (like 99 calls) containing descriptions of alleged offender
witness statements (drafts if they differ from the final version
exhibits
interview records
expert reports and communications between police and experts for the purposes of criminal proceedings
records of first descriptions of suspects and any material casting doubt on reliability of a witness
cont:
Duty to retain material last until decision is taken whether to start proceedings against a suspect for a criminal offence
Once proceedings start, all material must be retained until accused is acquitted or convicted or prosecutor doesn't want to continue with the case
Where D is convicted, material must be retained at least until D is released from custody
In cases where appeal against conviction is ongoing all material must be retained until appeal is concluded. Where material comes to light after proceedings have concluded that throws doubt on safety of conviction, prosecutor must consider disclosure of the material
Unused material to prosecutor:
Disclosure Code of Practice sets out procedure for Prosecutor to be notified by disclosure officer of every item of Unused Material
In CC cases: disclosure officer prepares schedule known as MG6C which individually lists the items of unused material
In MC cases: cases where a Not Guilty plea is anticipated the unused material is listed on streamlined disclosure certificate
In case with sensitive material: they are listed in a separate schedule or if they are exceptionally sensitive: revealed to the prosecutor separately. This may form the subject of Public Interest Immunity Application at a later stage
cont:
Disclosure officers must certify that to the best of their knowledge and belief they complied with their duties under the Disclosure Code of Practice
This includes ensuring all relevant unused material is clearly listed and brought to the attention of the prosecutor so that full and proper disclosure is made according to the test
Disclosure officer should exercise judgement and be directed by the prosecutor as to what's likely to be the most relevant and important material for disclosure
(2) Prosecution duty of disclosure:
All these fuctions may be carried out by the same person, but complex cases need individually-assigned rules:
The investigator
- must follow all reasonable lines of enquiry, whether these points towards/away from the suspect and the investigator must be 'fair and objective'
Disclosure officers
- inspect, view and listen to/search all relevant material that are retained by the investigator and must provide personal declaration that it has been done. When there's doubt whether material is disclosable, disclosure officer must get advice + assistance of the prosecutor
Initial duty of disclosure -
S.3 Criminal Procedure and Investigations Act (CPIA) 1996:
S.3(1) The prosecutor must:
(a)
disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, or
(b)
give to the accused a written statement that there's no material of a description mentioned in para (a)
cont:
The duty of disclosure relates to 'prosecution material' - defined in
S.3(2)
as material:
(a)
which is in the prosecutor's possession, and came into his possession in connection with the case for the prosecution against the accused, or
(b)
which in pursuance of [the Disclosure Code of Practice], he has inspected in connection with the case for the prosecution against the accused'
The disclosure test under
S.3 CPIA
is an objective - where there's existence of prosecution material which might help the defence they must be disclosed
The AG's Guidelines add further detail to the disclosure test (deciding weather or not material should be disclosed under
S.3 CPIA
prosecutors should consider amongst other things:
(a) the exclusion of evidence
(b) a stay of proceedings as an abuse of process, where the material is required to allow a proper application to be made;
(i) the exclusion of evidence;
(ii) a stay of proceedings as an abuse of process, where the material is required to allow a proper application to be made
(iii) a court/tribunal findings that any public authority had acted incompatibly with the accused's rights under the ECHR
(c) its capacity to suggest an explanation or partial explanation of the accused's actions
(d) the capacity of the material to have a bearing on scientific/medical evidence in the case
AG's Guidelines:
While items of material viewed in isolation may not be reasonably considered to be capable of undermining the prosecution case or assisting the accused, several items together can have that effect
As such, when considering if unused material must be disclosed, prosecutors must make sure all those circumstances in which such material might reasonably be capable of supporting the defence case or undermining the prosecution case
Material which are supportive of the prosecution case (or they are neutral) may not need to be disclosed as unused material because it doesn't satisfy the disclosure test
What is important is that prosecution must fulfill its duty of considering all material in light of disclosure test and acting on it
Time limits for initial disclosure:
Prosecution will serve initial details of prosecution case no later than beginning of the day of 1st hearing per
CrimPR Part 8:
Details must include enough info to allow D and court at first hearing to take an informed view:
(1) on plea
(2) on venue for trial (for either-way offences)
(3) for purposes of case management
(4) for purposes of sentencing (including for sentence for either-way offences)
Cont:
Concerning the disclosure of unused material by the prosecution, this statutory duty under the CPIA (the initial duty of disclosure) arises:
in the MC only when D pleads not guilty and the case is adjourned for summary trial
In the CC when D is sent for trial or where a Voluntary Bill of Indictment has been preferred against a D
(S.1 CPIA)
But even when statutory duty has not arisen, a prosecutor still must advance disclosure material which the prosecutor recognises should be disclosed at this early stage in the interest of justice and fairness
The
S.12 CPIA
provides for statutory time limits for prosecution initial disclosure to be set by regulation but non has yet to be made
The default position under
S.13 CPIA
is that the prosecutor must act 'as soon as its reasonably practicable' once initial duty of disclosure arises
Disclosure - defence
Defence statement:
In the CC,
S.5 Criminal Procedure and Investigations Act (CPIA) 1996
imposes a duty to a duty on D to serve a defence statement on the CC and the prosecution
A defence statement is a written statement setting out the nature of the accused's defence
Should not be confused with D's proof of evidence to D's own legal advisors which is a privileged document and thus not disclosable to the prosecution
Defence disclosure should also not be confused with prosecution disclosure where there's no duty on the defence to serve material which might not be helpful to prosecution
Defence statement is about setting out reasonable clarity what the defence is
S.6A CPIA 1996
-a defence statement must contain:
For the purposes of this Part a defence statement is a written statement -
(a) setting out the nature of the accused's defence, including any particular defences on which he intends to rely
(b) indicating the matters of fact on which he takes issue with the prosecution, and
(c) setting out, in the case of each such matter, why he takes issue with the prosecution; and
(d) setting out particulars of the matters of fact on which he intends to rely for the purposes of his defence; and
(e) indicating any point of law (including any point as to admissibility of evidence or an abuse of process) which he wishes to take, and any authority on which he intends to rely for that purpose
A defence statement that discloses an alibi must give particulars of it, including:
(a) the name, address and date of birth of any witness the accused believes is able to give evidence in support of the alibi, or as many of those details as are known to the accused where the statement is given;
(b) any information in the accused's possession which might be of material assistance in identifying/finding any such witness in whose case any of the details mentioned in para (a) are not known to the accused when the statement is given
Time limits:
Crown Court:
Defence statement is compulsory only in CC and must be served on the prosecution and the court
(CrimPR r.15.4(2))
within 28 days of the date of the prosecution complies with its duty of initial disclosure
Time limit can be extended but:
only if the application to extend is made within the time limit; and
only if court is satisfied that it would not be reasonable to require D to give defence statement within 28 days
cont:
Magistrates Court:
Defence statement not compulsory. But if D chooses to serve a defence statement in such a case standard directions in the MC provide that:
D must do it within 10 business days of the prosecution complying (or purporting to comply) with initial duty of disclosure
There is also no obligation to serve a defence statement in the MC. But if you don't do it, defence cannot make an application for specific disclosure
Defence Witnesses:
In both CC and MC, D must disclose to the court and the prosecutor a notice indicating:
if D intends to call any witnesses at trial (other than D being a witness); and
if so, identifying the witness by name, address and date of birth or any information to locate and identify witness
Alibi witnesses should be included in the defence statement and do not need to be repeated in the Notice of Intention to Call Defence Witnesses
The Notice of Intention to Call Defence Witnesses must be given within 10 business days (MC standard directions) and 28 days (CC) of the prosecution complying or purporting to comply with initial disclosure
The notice may be amended to add or remove witnesses
Disclosure Failures and Consequences:
A number of consequences may follow, where D in the CC:
(a) fails to serve a defence statement
(b) fails to do so within the required time limits
(c) serves a defence statement which is deficient in its content (such as not adequately setting out the defence relied on at trial or not including an alibi witness called at trial)
(d) relies on a defence at trial which different to that contained in the defence statement
Consequences:
In the MC:
No adverse inference can be drawn against D for failing to serve a defence statement as there is no duty to do so under
CPIA
But if the choice is made to serve a defence statement in the MC, adverse inference can be drawn for the same reasons as in the CC (such as for serving out of time or putting forward a different defence at trial to that contained in the defence statement)
If defence statement is not served in MC or the CC, D won't be able to make an application for specific disclosure under
S.8 CPIA
Failure to serve a defence statement in either MC or CC means prosecutor won't have the opportunity to review disclosure in light of issues that would otherwise have been set out within them
S.11 CPIA - jury may draw adverse inferences as appear proper against D for such a failure although D cannot be convicted solely or mainly on the basis of such an adverse inference
Prosecution or co-D may comment on such failure without leave of the court, other than where it relates to a point of law where leave is required
S.6E(2) CPIA
- a judge can warn D at the PTPH or other pre-trial hearing that failure to comply with the relevant provisions may lead to comment being made or adverse inferences being drawn
CONTINUE TMW