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Disclosure Notes

BPTC Law Notes > BPTC Criminal Litigation Notes

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A more recent version of these Disclosure notes – written by City Law School students – is available here.

The following is a more accessble plain text extract of the PDF sample above, taken from our BPTC Criminal Litigation Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

DISCLOSURE Investigator's Duty Code of Practice (under Criminal Procedure and Investigations Act ("CPIA"))- makes investigator responsible for ensuring that any key information relevant to the investigation is recorded and retained, whether:

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gathered during the course of the investigation (eg. docs seized in search of premises), or

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generated by the investigation (eg. interview records)

Where any doubt about relevance of material, investigator should retain it. Duty to Retain Material Duty to retain particularly applies to:

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Crime reports, report forms, relevant parts of incident report books and Pos' notebooks,

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Final versions of Witness Statements,

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Draft versions of Witness Statements where content differs from final version,

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Interview records (written or taped),

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expert reports and schedules,

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any material casting doubt on reliability of a confession,

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any material casting doubt on reliability of a Witness.

Does not extend to purely ancillary items, eg. duplicate copies of docs. Material must be retained at least until criminal proceedings are concluded If Defendant convicted, must be retained until at least 6 months after conviction or until Defendant released from custody (whichever is later) Offences going to Trial Schedule of Material Where Investigator believes that Defendant is likely to plead NG at summary trial, or case likely to be tried in Crown Court, he must prepare a schedule listing material retained which does not form part of Prosecution case against Defendant. Any sensitive material should be listed in a separate schedule (material which investigator believes not in public interest to disclose). Material undermining Prosecution Case Investigator should draw Prosecution's attention to any material which might undermine the Prosecution case. The Disclosure officer Disclosure officer - person responsible for examining records created during investigation and proceedings and disclosing material as required to the Prosecution or Defendant Must certify that, to the best of his knowledge and belief, the duties imposed under the Code have

been complied with After Defence Statement If Defence statement given, investigator must look again at the material retained and draw Prosecution's attention to any material which might reasonably be expected to assist the defence disclosed. Later Material If investigator come into possession of new material, must comply with duties -

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ie. draw to Prosecution's attention if material might undermine Prosecution case or reasonably be expected to assist the defence disclosed.

Disclosure at Prosecution's Request If Prosecution requests, investigator must disclose to Defendant:

1. any material which might undermine the Prosecution case,

2. where defence statement given - any material which might reasonably be expected to assist the defence disclosed, and

3. any material which the court orders to be disclosed. Prosecution Disclosure

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Before statutory duty to disclose arises, Prosecution may be under common-law duty to disclose such material to the defence at an earlier stage,
* eg. as it might help the defence in a bail application or to prepare for trial.

s3 CPIA Main duty to disclose previously undisclosed material if it might reasonably be considered capable of undermining the case of the Prosecution against Defendant, or of assisting Defendant's case.

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If no such material - Defendant must be given written statement of this.

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"Prosecution material" - material which Prosecution possesses or has been allowed to inspect.

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"Disclosure":
* give to Defence, or
* allow Defence to inspect it at a reasonable time and place.

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Disclosure must be carried out as soon as reasonably practicable.

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Material must not be disclosed if Court concluded it is not in public interest to disclose it.

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If Prosecution given doc indicating any non-sensitive info which has not been given to Defendant, this also must be given to Defendant at same time as primary prosecution disclosure.

Material to be Disclosed

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Material should be disclosed which might give Defence basis for Cross Examination of a Witness or would support defence arguments that evidence inadmissible or proceedings ought to be stayed.

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AG's Guidelines on Disclosure of Information in Criminal Proceedings : Prosecution should disclose any information which:
* cases doubt upon the accuracy of any Prosecution evidence,
* may point to another person having involvement in the commission of the offence,
* may case doubt upon reliability of a confession,
* might go to credibility of a Prosecution Witness
* might support a defence that is raised by Defendant or apparent from Prosecution papers (whether or not consistent with defence all ready advanced by Defendant)
* may have bearing on the admissibility of Prosecution evidence.

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Previous convictions of Prosecution Witnesses ought to be disclosed (Vasiliou [2000])

Continuing Duty of Review s7A - Prosecution disclosure duty includes continuing duty to disclose any unused material falling within s3

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Prosecution must, until conviction/acquittal/dismissal, keep under review Q of whether at any time (particularly following disclosure of defence statement) there is Prosecution material which:
* might reasonably be considered capable of undermining the case for the Prosecution against Defendant, or of assisting the case for Defendant, and
* which has not been disclosed.

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If there is such material, must be disclosed as soon as reasonably practicable

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Where defence statement given, Prosecution must:
* disclose any previously undisclosed material which now falls within s3, or
* provide a written statement that there is no such material.

Notice of Additional Evidence

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If Prosecution, after primary disclosure, wish to add a Witness/Witness Statement - must serve Witness Statement + "notice of additional evidence" on defence
* no time-limit but must be done before trial
* if serve very late so Defence do not have time to adjust case in light of Witness - Judge should grant an adjournment.

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Defence have 7 days from service to object

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If no objection - Prosecution can read Witness Statement in Crown Court

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If objection - Prosecution must call Witness or abandon evidence Defence Disclosure

Duty to reveal the case which will be presented at trial

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2 types: Defence Statement and Notice of Witnesses.

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