Disclosure

Question 1

Where are the disclosure obligations for prosecution and defence contained?

Answer 1

CPIA 1996, Judicial Protocol on the Disclosure of Unused Material in Criminal Cases, and National Disclosure Improvement Plan.

Question 2

What do the documents for P & D set out?

Answer 2

The principles to be applied to disclosure, the expectations of the court, its role in disclosure, and the consequences of failing to comply with disclosure obligations.

Question 3

What is the CPS required to serve on the defendant re disclosure?

Answer 3

All evidence on which it wishes to rely at trial to prove the defendant’s guilt.

Question 4

What additional material does the prosecution have re disclosure?

Answer 4

‘Unused material’, such as statements from witnesses whom the CPS does not intend to call at trial.

Question 5

What must the CPS do with unused material re disclosure?

Answer 5

CPS is required to retain it and disclose it to the defendant if it satisfies the test in s 3 of the CPIA 1996.

Question 6

What does s3 of the CPIA 1996 provide re disclosure?

Answer 6

Unused material must be disclosed if it might reasonably be considered capable of undermining the case for the prosecution or assisting the case for the accused.

Question 7

What are examples of unused material that must be disclosed?

Answer 7

Records of eyewitness descriptions, information indicating an innocent explanation, material casting doubt on witness reliability, and statements supporting the defendant’s account.

Question 8

What does the CPS usually send to the defendant’s solicitor re disclosure?

Answer 8

A schedule of all non-sensitive unused material in its possession, along with copies of any items satisfying the s 3 test.

Question 9

What is the nature of the CPS’s duty of disclosure?

Answer 9

Ongoing; the CPS must apply the s3 test to any further material received after initial disclosure.

Question 10

What can D’s solicitor do if they consider the disclosure incomplete?

Answer 10

Request disclosure of any missing items when drafting the defence statement.

Question 11

What can the solicitor do if the CPS refuses to supply requested items re disclosure?

Answer 11

Apply to the court for specific disclosure under s 8(2) of the CPIA 1996.

Question 12

When can the prosecution withhold disclosure of sensitive items re disclosure?

Answer 12

If the material is protected by public interest immunity and the CPS makes an application to the court.

Question 13

When does the onus switch to the defendant’s solicitor re disclosure?

Answer 13

Once the CPS has made its initial disclosure of unused material.

Question 14

What is the time frame for serving a defence statement in the magistrates’ court re disclosure?

Answer 14

Within 10 business days of the CPS making initial disclosure.

Question 15

What is the time frame for serving a defence statement in the Crown Court re disclosure?

Answer 15

20 business days from service of unused material by the prosecution.

Question 16

What does s 5A of the CPIA 1996 allow the court to do in cases with co-accused re disclosure?

Answer 16

Make an order for a copy of the defence statement to be served on the other defendants.

Question 17

What is referred to as ‘Compulsory disclosure’?

Answer 17

The obligation on the defence to provide a defence statement as set out in s 5 CPIA 1996.

Question 18

How is the obligation on the defence to provide a defence statement in Crown Court enforced?

Answer 18

By the court being able to draw an adverse inference against the defendant if a defence statement is not provided.

Question 19

When should a defence statement be served in the magistrates’ court?

Answer 19

Only if the solicitor believes it may lead to additional unused material being disclosed.

Question 20

Is it common for a defence statement to be served on the prosecution in the magistrates’ court?

Answer 20

No, it is very rare.

Question 21

What must the defence statement include?

Answer 21

Nature of the defence, matters of fact in dispute, particulars of the defence, points of law, and alibi witness details.

Question 22

What is the continuing duty of the defence?

Answer 22

To update the defence statement if details change before trial.

Question 23

What does s 6E CPIA 1996 provide regarding defence statements?

Answer 23

Defence statements are deemed to be given with the authority of the defendant unless proven otherwise.

Question 24

What happens if the defence fails to provide a defence statement?

Answer 24

The court may draw an adverse inference regarding the defendant’s guilt.

Question 25

What must the CPS do after receiving a defence statement?

Answer 25

Review its initial disclosure of unused material.

Question 26

Can the defence challenge the prosecution's failure to provide unused material?

Answer 26

Yes, under s 8(2) CPIA 1996.

Question 27

What must D provide to challenge the CPS's failure to disclose?

Answer 27

Detailed information in their defence statement about the undisclosed material.