Disclosure - additional issues

Question 1

What are the additional disclosure issues?

Answer 1

• Continuing duty of disclosure by prosecution
• Application for specific disclosure
• Failure to disclose by prosecution
• Third party disclose
• Public interest immunity

Question 2

Continuing duty of disclosure by prosecution?

Answer 2

• There is a duty by prosecutions to keep disclosure under review throughout case, partcularly when defence statement is served
• once defence statement, Crown must review disclosure in light of issues identified in defence statements
• materials must be disclosed even if discovered late in proceedings and this duty lasts until D is convicted, acquitted or prosecution decides not to proceed with case

Question 3

Application for specific disclosure, what is it and how can an application be made?

Answer 3

What is it:
* Under CPIA, defence can make an application to court where it has reasonable cause to believe that there is prosecution material which should be disclosed (following service of defence statement) but hasn’t.

How can an application be made:
* D must have served defence statement and prosecution must have either provided further disclosure in light of statement or notified D there is no further disclosure to be made

Question 4

What is needed for an application for specific disclosure?

Answer 4

Application may be rejected if disclosure of unused prosecution materials are not referable to any issue in defence statement - as such statement must set out issues clearly as a prerequisite to application.

Application must be served on court and prosecution and must describe material D wants to be disclosed and explain why there is reasonable cause to believe:
* prosecution has material and
* that it is material that should be disclosed

D should ask for a hearing if required and explian why it’s needed and prosecution has 10 business days to respond in writing to any such application = last resort and discussion and co-opertion between parties outside court is encouraged.

Question 5

Disclosure failure by prosecution?

Answer 5

• defence can bring an application to stay the indictment on grounds that to continue case would be an abuse of process of court
• could result in a conviction being quashed on appeal
• would likely result in delay and imposition of wasted costs
• could lead to exclusion of evidence

prior to any formal application, defence should write to prosecution specifying materials which they seek

Question 6

Third-party disclosure

Answer 6

No duty of disclosure but if material might be considered as undermining prosecution case or assisting case of accused, prosecution should take appropriate steps to obtain it
* where it is believed third-party holds relevant information, they should be informed of investigation and a request for material in question to be retained in case a request for disclosure is made
* where material is requsted but access or disclosure is refused, prosecution can consider in CC seeking a summons in production of material or in MC under similar provisions.

Question 7

Public interest immunity?

Answer 7

• If prosecution belives that disclosure of material would give rise to a real risk of serious prejudice to an important public interest, they should apply to the judge for non-disclosure in the public interest (PII).
• Courts will consider material and may withold disclosure to minimum extent necessary to protect public interest whilst ensuring D has a fair trial.

Question 8

Public interest immunity - sensitive material?

Answer 8

Sensitive material of this nature must be recorded in investigation stage in Sensitive Material schedule in which investgators must state:
* why material is sensitive and to what degree
* consequences of disclosing
* relevance of material to issues in case
* implication for continuing prosecution if material is ordered to be disclosed
* whether possible to make disclossure without compromising sensitivity