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Disclosure of unused material and defence statements - Coggle Diagram

- - - - Material which is relevant to the investigation but is not expected to form part of the prosecution case should be provided by the police to the prosecutor for review
      - The prosecution must apply the statutory test in the CPIA 1996, s. 3, to that material and must disclose any material meeting that test, usually together with a schedule of all the other material recorded and retained separate obligations apply as regards material which is intended to be used)
    - - Alibi
        
        If the defence statement discloses an alibi, particulars of alibi must be given
        
        The names, addresses and dates of birth (or as much of this information as is known) of any alibi witnesses whom the accused intends to call must be contained within the defence statement
        
        If the accused does not know any of these details, any information in the accused's possession that might assist in identifying or finding any such witness must be given
        
        Changes in relation to alibi witnesses, or the later discovery of the information required by statute, must be dealt with by the procedure for updated disclosure when this is in force
        
        Alibi evidence is defined as 'evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission'
        
        Defence Statements in Cases Tried in the Crown Court — Time-limits
        
        The defence statement must be served within 28 days of the prosecution's compliance (or purported compliance) with the duty of initial disclosure
        
        The defence may apply for an extension, but the application must be made before the deadline expires
        
        The application must not be granted unless the court is satisfied that it would not be reasonable to require the accused to give a defence statement within 28 days
        
        There is no limit to the number of applications that may be made
        
        Time runs from the date of service of a statement by the prosecution , not from service of the scheduled unused material
        
        However, the right to further disclosure is not lost if there is a short delay in serving the defence statement
        
        Extensions will not be granted lightly or as a matter of course
        
        If an extension is sought, the application ought to be accompanied by an appropriate explanation
        
        There is clearly a burden on defence representatives to embark on detailed preparation soon after receipt of the prosecution case
        
        However, this responsibility cannot be discharged unless the prosecution make timely disclosure of unused material
- - - - It is a requirement for investigators to pursue all reasonable lines of inquiry, whether these point towards or away from the suspect
        
        A fair investigation does not mean an endless investigation, however, and thought must be given to defining and articulating the scope of the investigation
        
        The obligation to make disclosure cannot be avoided by declining to make an inquiry which might produce disclosable material
      - For a statement to the effect that prosecutors are not required to investigate matters or obtain evidence which may help the defence
      - Where such investigation reveals the existence of material held by a third party which may be relevant to the investigation but such material is not obtained, the third party must be informed of the investigation and invited to retain the material in case a request for disclosure is made
      - While speculative inquiries of third parties are not required, and there must be some reason to believe that they hold relevant material
        
        The test of what are reasonable investigative steps in the circumstances is likely to start from the position of a persistent prosecutor who does not readily take 'no' for an answer
      - The margin of discretion attributable to a prosecutor in pursing third party disclosure is confined by considerations of fairness at common law and under the ECHR, Article 6
- - - - If the accused:
      - Fails to give the initial defence statement required in respect of Crown Court cases;
      - Gives the initial defence statement after the 14-day period during which it must be served in the magistrates' court or after the 28-day period during which it must be served in the Crown Court
        
        Fails to provide an updated statement required or a statement that no updating is necessary
  - - - The prosecutor must—
        
        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
        
        Give to the accused a written statement that there is no material of a description
    - - Which is in the prosecutor's possession, and came into his possession in connection with the case for the prosecution against the accused, or
      - Which, in pursuance of a code operative under Part II, he has inspected in connection with the case for the prosecution against the accused
      - Where material consists of information which has been recorded in any form the prosecutor discloses it —
        
        By securing that a copy is made of it and that the copy is given to the accused, or
      - If in the prosecutor's opinion that is not practicable or not desirable, by allowing the accused to inspect it at a reasonable time and a reasonable place or by taking steps to secure that he is allowed to do so;
      - And a copy may be in such form as the prosecutor thinks fit and need not be in the same form as that in which the information has already been recorded
- - - - 'Material' includes material gathered in the course of the investigation (e.g., documents seized in the course of searching premises) and generated by the investigation (e.g., interview records)
      - The following categories of material: crime reports, including crime report forms, relevant parts of incident report books and police officers' notebooks; final versions of witness statements; draft versions of witness statements where their content differs from the final version; interview records (written or taped); expert reports and schedules; any material casting doubt upon the reliability of a confession; and any material casting doubt on the reliability of a witness
        
        The CPIA Code makes clear that the duty to retain material does not extend to items purely ancillary to the above categories which possess no independent significance, such as duplicates of documents
- - - - In cases tried summarily there is no obligation on the defence to provide a defence statement
      - However, once the prosecutor has complied (or purported to comply) with the duty to disclose unused material
      - The accused may give the prosecutor and the court a defence statement
        
        In the absence of a defence statement, the accused cannot make an application for specific disclosure and the court cannot make any orders for disclosure of unused prosecution material
      - Where the accused chooses to serve a defence statement this must be done within 14 days from the date on which the prosecutor complies or purports to comply with the initial duty of disclosure
        
        The court has power to extend this time-limit on the application of the accused
      - If the accused provides a defence statement, the requirements as to the contents of the statement apply
        
        The voluntary regime applies to summary trial, whether it is of a summary or an either way offence or even (in the case of a child or young person) of an indictable only offence
- - - - A prosecutor remains under a continuing duty to review questions of disclosure
        
        If, at any time before the accused is acquitted or convicted, the prosecutor forms the opinion that there is material which might undermine the prosecution case, or be reasonably expected to assist the accused's defence, it must be disclosed to the accused as soon as reasonably practicable, provided that it is not prohibited
      - Where the court has ruled against disclosure on public interest grounds, it must keep under review the question whether it is still in the public interest not to disclose the material affected by its order
      - In practice, the duty of continuing disclosure is most likely to crystallise either on service of the defence case statement or during the trial itself as the issues develop
      - After service of the defence case statement , the CPIA Code requires, in effect, a repeat exercise of the process for initial disclosure
        
        An investigator must again look at the material retained and draw the prosecutor's attention to any material which might reasonably be considered capable of undermining the prosecution case or of assisting the defence if it were to be disclosed If the investigator comes into possession of any new material after complying with these duties, it must be revealed to the prosecutor
      - This may trigger a requirement for disclosure by the prosecution
        
        The disclosure officer must also certify compliance with the duties imposed by the CPIA Code after consideration of the defence statement and whenever a schedule of material is otherwise given or material is revealed to the prosecutor
        
        Once proceedings have concluded, the prosecution are still under a duty to disclose any material which might reasonably be considered capable of casting doubt on the safety of the conviction considered
- - - - Where the prosecutor has been given a schedule of unused material by a police officer under the CPIA Code that schedule must be served on the accused when the prosecutor makes disclosure of unused material
- - - - The Defence Statement
        
        Once the case is sent to the Crown Court and the prosecution case is served
        
        The accused must give a defence statement to the court and the prosecutor
        
        The defence statement is a written statement setting out the basis on which the case will be defended
        
        The areas that the statement must cover include:
        
        The nature of the accused's defence, including any particular defences upon which the accused intends to rely;
        
        The matters of fact on which the accused takes issue with the prosecution, with the reasons why;
        
        • particulars of the matters of fact on which the accused intends to rely for the purposes of defence; and
        
        • any points of law which the accused wishes to take, with any authorities relied upon
        
        It should be stressed that the duty of disclosure imposed on the defence is different to that which is meant by the prosecution 'duty of disclosure'
        
        In respect of the defence, it is a duty to reveal the case which will be presented at trial (rather than, as in the case of the prosecution, to disclose unused material)
        
        Prosecutors must provide the investigator with the defence statement as soon as reasonably practicable after receipt and provide advice on whether there are any further lines of inquiry to be pursued, what to look for when reviewing unused material and what further material may need to be disclosed
        
        In appropriate circumstances the principle that there must be equality of arms will mean that the prosecution must spell out the inferences that they will be asking the trier of fact to draw from the facts adduced in their evidence, given that the defence are obliged to set out their reasoning for disputing issues of fact in that evidence
        It follows that the scope of the defence statement should be viewed in the context of what might reasonably be required of the defence at a stage when they may not be clear about the way in which the prosecution put their case
        
        The guidance states that counsel cannot, and should not, draft a defence statement without adequate instructions
        
        These should take the form of a signed proof of evidence or a signed note of instructions taken in conference
        
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  - - - Where material consists of information which has not been recorded the prosecutor discloses it for the purposes of this section by securing that it is recorded in such form as he thinks fit and—
        
        By securing that a copy is made of it and that the copy is given to the accused, or
      - If in the prosecutor's opinion that is not practicable or not desirable, by allowing the accused to inspect it at a reasonable time and a reasonable place or by taking steps to secure that he is allowed to do so
      - Where material does not consist of information the prosecutor discloses it for the purposes of this section by allowing the accused to inspect it at a reasonable time and a reasonable place or by taking steps to secure that he is allowed to do so
      - Material must not be disclosed under this section to the extent that the court, on an application by the prosecutor, concludes it is not in the public interest to disclose it and orders accordingly
      - Material must not be disclosed under this section to the extent that it is material the disclosure of which is prohibited by section 56 of the Investigatory Powers Act 2016
- - - - A streamlined disclosure certificate should be used in all cases in which a not guilty plea is anticipated, and which is reasonably expected to be suitable for summary trial
      - Where, however, the accused is charged with a summary offence or an either way offence and a guilty plea is considered likely, a schedule is not required unless a not guilty plea is subsequently entered or indicated
      - In cases heard in the magistrates' court and the youth court, prosecutors should always consider whether a Disclosure Management Document would be beneficial
      - They are most likely to be beneficial in cases involving: substantial or complex third party material, digital material in which parameters of search, examination or analysis have been set, international inquiries, linked operations, non-recent offending and material held or sought by the investigation that is susceptible to a claim of legal professional privilege
        
        The Judicial Disclosure Protocol states that the principles relating to disclosure apply equally in the magistrates' courts
        
        It follows that, while disclosure of unused material is undoubtedly essential in order to achieve justice, misconceived applications for disclosure, or inappropriate disclosure, must be avoided
        
        Prosecutors are required to take into account information provided as to the defence case in the case management forms when conducting any review of material
- - - - There are no statutory time-limits for disclosure of unused material in the Crown Court
      - Provision was made in the legislation for a time-limit to be laid down by statutory instrument but no such instrument has ever been made affecting Crown Court cases
      - Disclosure must be made as soon as reasonably practicable after the happening of a particular event, such as service of the prosecution case
      - In magistrates' court cases, the CPIA Code stipulates that the schedule, i.e. the streamlined disclosure certificate must be disclosed to the accused either at the hearing at which a not guilty plea is entered, or as soon as possible following a formal indication from the accused or the accused's representative that a not guilty plea will be entered at the hearing
      - The Judicial Disclosure Protocol requires that, if there is a preliminary hearing
      - The judge should seize the opportunity to impose an early timetable for disclosure and to identify any likely problems including as regards third-party material and material that will require an application to the Family Court
      - The court should keep the timetable for prosecution and defence disclosure under review from the first hearing
      - Large and complex cases will require robust case management by the judiciary, and the courts should be provided with an up-to-date timetable for disclosure whenever there are material changes as a result of difficulties
  - - - The defence must provide names, addresses, dates of birth or, if any such details are not known, other identifying information
      - Notice of intention to call a witness must be given within 14 days (in the case of summary proceedings) and 28 days (in the case of Crown Court proceedings) from the date when the prosecutor complies, or purports to comply, with the duty to disclose
    - - Any change in the plans to call witnesses (including a decision not to call a previously notified witness or to call a witness not previously notified) must be dealt with by way of an amended notice to the court and the prosecutor
- - - - Defence Applications for Disclosure from the Prosecution
        
        If an accused has served a defence statement and the prosecution have complied, purported to comply,
        
        An application for disclosure can only be made if the defence have provided an adequate defence statement
        
        Any application must describe the material which is subject to the application and explain why there is reasonable cause to believe that the prosecutor is in possession of the material and why it meets the test for disclosure
        
        Prosecutors must carefully review any application for disclosure and consider whether any items described in the application meet the test for disclosure
        
        Pre-Trial Disclosure of Third-Party Material
        
        Another important area of pre-trial disclosure relates to material in the possession of third parties
        
        This will include records held by health and education authorities, or financial institutions
        
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        Disclosure of information for criminal proceedings the prosecution is placed under an obligation to obtain material in the hands of third parties which might be relevant to the prosecution case
        
        In either event, the mechanism for securing disclosure of third-party material, unless it is volunteered, is through the issuing of a witness summons for the production of documents
        
        The Court has the power to request information from those proceedings
        
        Or failed to comply, with the procedure for further disclosure an accused may apply for an order for disclosure of material which should have been disclosed i.e. material which the prosecutor should have disclosed as material which might reasonably be considered capable of undermining the prosecution case or assisting the accused's case
        
        Such an application may relate to material actually held or inspected by the prosecutor as well as to any material which the prosecutor would be entitled to hold or inspect if requested
  - - - Public Interest Immunity
        
        Circumstances may arise in a case in which material held by the prosecution and tending to undermine the prosecution or assist the defence cannot be disclosed to the defence, fully or even at all, without the risk of prejudice to an important public interest
        
        In such circumstances the courts may be justified in ordering that the material is withheld from disclosure, but they must only allow this to the minimum extent necessary to protect the public interest in question and must never imperil the overall fairness of the trial
        
        Applications by the prosecution to the court to withhold material in these circumstances are known as public interest immunity applications
        
        It expressly preserves 'the rules of common law as to whether disclosure is in the public interest'
        
        Disclosure to the accused allow relevant material to be withheld on public interest grounds only if the court so decides
        
        For the circumstances in which public interest immunity may be claimed
    - - Disclosure Management Documents should be carefully prepared by the prosecutor on the basis of information provided by the investigator