Disclosure

Question 1

Does unused material need to be disclosed?

i.e evidence that would support Ds case?

Answer 1

Yes

so evi which is not relied upon by pros

Question 2

4 stages of disclosure:

Answer 2

1. Duty to record & retain material in investigation stage
2. Initial duty of disclosure on pros
3. Defence disclosure
4. Continuing duty on pros to keep disclosure under review

Question 3

Role of officer in charge of inv?

Answer 3

• direct inv
• proper procedures to record / retain info

Question 4

Role of investigator?

Answer 4

• any police officer
• follow all reasonable lines of enquiry (to and away from suspect)
• fair and objective

Question 5

Role of disclosure officer?

Answer 5

• responsible for examining retained material
• responsible for giving to prosecutor/ the defence
• inspect all material retained by investigator
• give declaration once done
• if doubt = seek guidance from prosecutor

Question 6

What materials must be maintained?

Answer 6

ALL which may be relevant

e.g

• crime report
• tapes/ telephone messages e.g 999
• witness statements (and drafts)
• exhibits
• interview records
• expert reports / communications with police
• first description of suspects
• anything to cast doubt on reliability of witness
• explanation of accused
• anything to cast doubt on reliability of confession

Question 7

How long does duty to retain materials last?

Answer 7

at least until decide whether to start proceedings

proceedings commence = until convicted/ acquitted/ discontinued

if convicted = until released from custody / discharged from hospital or if neither, 6 months from date of conviction

appeal = until appeal concluded

Question 8

What happens if material comes to light after proceedings have finished that casts doubt on safety?

Answer 8

prosecutor must consider disclosure

Question 9

How does disclosure officer notify prosecutor of unused material?

Answer 9

CC = prepares schedule (MG6C)

mags = (NG plea) disclosure certificate

sensitive material is in a separate schedule / given separately i.e serious harm to imp public interest

Question 10

What must be disclosed?

Answer 10

Any evidence capable undermining prosecution case/ assisting the defendant’s case

Question 11

What should the prosecutor consider when deciding what to disclose? (A-G Guidelines)

Answer 11

a) use in cross examination

b) capacity to support submissions that could lead to:

• exclusion of evi
• stay of proceedings as an abuse of process (where material is needed to make an application
• finding of incompatibility with rights under ECHR

c) capacity to suggest explanation for accused actions

d) capacity to have bearing on scientific / medical evi e.g treatment of suspect in custody

consider all together not just individual items

Question 12

What does not need to be disclosed?

Answer 12

Supports prosecution case but do not intend to rely

Question 13

What happens to initial disclosure in long/ complex cases?

Answer 13

• consider appropriate approach and explain what are doing/ not doing (usually disclosure management doc)
• encourage prompt dialogue with defence (defence engages then too)
• formulate strategy with defence & court (tech/ sampling)
• case management by judge (directions)
• flexibility

Question 14

When must initial details be served? (IDPC)

Answer 14

beginning of day of first hearing

Question 15

When does a duty to disclose arise? (unused material)

Answer 15

mags = pleads NG & case adjourned for trial

CC = D sent for trial / Voluntary Bill of Indictment (exceptional cases)

must act ‘as soon as reasonably practicable’

Question 16

What is the common law duty of disclosure?

Answer 16

Th duty has not officially started

prosecutor needs to be aware of material that needs to be disclosed in early stages e.g bail applications

Question 17

When is initial disclosure made in a summary trial? (mags)

Answer 17

D pleads NG & adjourned…

any further evi to be served - the court set a date

initial disc unused material - court set date for completion

should be done in sufficient time

Question 18

When is initial disclosure made in CC trial?

Answer 18

if there is a PTPH (usually 28 days after sending)

must serve initial disclosure before (can manage case without another case management hearing)

if any more evi/ prosecution not complied - court will set a date

Question 19

When must a defence statement be served?

Answer 19

Crown Court trial

(set out what the defence is - like a mini skeleton)

Question 20

What must a defence statement contain?

Answer 20

• nature of defence / particular defences
• matters of fact disputed/ take issue
• why they take issue with each matter
• particulars of fact intends to rely on for defence
• point of law (admissibility of evi or abuse of process) / authority to rely e.g s78 PACE
• particulars of alibi: details of witness in support or as many as known & information in possession to identify/ find the witness

CLEAR ISSUES OF FACT AND LAW

Question 21

When must a defence statement be served in CC?

Answer 21

compulsory

within 28 days of prosecution initial disclosure

Question 22

When can time limit to serve a defence statement be extended?

Answer 22

• made within 28 days of ID
• court satisfied not reasonable to give one within 28 days

Question 23

When must a defence statement be served in mags?

Answer 23

not compulsory

if D chooses - within 10 business days of ID (or purporting)

Question 24

What happens if D fails to give a defence statement in mags or CC?

Answer 24

Will not be able to make an application for specific disclosure

Question 25

What does not need to be repeated in notice of intention to call a witness?

Answer 25

alibi witness already given in defence statement

Question 26

When does a notice of intention to call a witness need to be served?

Answer 26

mags = 10 business days of ID (or purporting ID) (standard directions) CC = 28 days nb - can be amended to add/ remove

Question 27

What happens if there is an issue with Ds defence statement. in CC? e.g fails to serve or serve on time/ relied on another defence at trial

Answer 27

- jury draw **adv inferences** (**not convicted solely on this**) - prosecution/ co-D can **comment on this without leave of the court** (unless a point of law which needs permission) - judge can warn at PTPH - prosecutors can send to the court and ask for directions to produce proper statement

Question 28

What does a defence statement help with?

Answer 28

Prosecutions ongoing duty of disclosure helps to identify unused material in light of issues raised in statement

Question 29

When can the defence make an application for specific disclosure?

Answer 29

Reasonable cause to believe: 1. the prosecutor has the material 2. the material should have been disclosed must serve on pros and court !

Question 30

What must have happened to apply for specific disc?

Answer 30

**served a defence statement** & prosecutor provided disclosure in light of that statement OR notified no further disclosure to be made

Question 31

When can specific disclosure be rejected?

Answer 31

Request for information not referred to in defence statement

Question 32

How long for pros to respond to SD application?

Answer 32

10 business days

Question 33

What should be done before SD application?

Answer 33

cooperation between parties (SD = last resort)

Question 34

Consequences of failure to disclose by prosecution:

Answer 34

- application to stay the indictment for abuse of process - conviction being quashed or appeal (unsafe) - delay = wasted costs for hearings / refusal to extend custody time limit - exclusion of evi (unfairness)

Question 35

What happens if material is in the possession of third parties?

Answer 35

prosecutor has duty to take steps to obtain: - informed of investigation - request made to retain material

Question 36

What happens if TP refuses request for disclosure?

Answer 36

summons for production of evi

Question 37

What happens if there is an risk to an imp public interest? i.e prosecution does not want to disclose?

Answer 37

apply to judge public interest immunity application e.g national security can withhold to the extent that D still has a fair trial

Question 38

What must be recorded for public interest material?

Answer 38

Inv stage: - why is it sensitive? what degree? - consequences of disclosure - relevance to the case - implications for continuing if disclosed - possible to disclose without compromising sensitivity?