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BPTC Law Notes BPTC Criminal Litigation Notes

Disclosure And Considering Evidence Notes

Updated Disclosure And Considering Evidence Notes

BPTC Criminal Litigation Notes

BPTC Criminal Litigation

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Disclosure, and Considering Evidence

Disclosure

  • Duties, and responsibilities, of parties governed by CPIA 1996.

  • The staged approach is:

    • Initial Prosecution Disclosure;

    • Defence Disclosure;

    • Continual Review by P.

What? When?
Initial Details

r10.3 requires that initial details of the prosecution case must include:

  • a summary of the evidence on which that case will be based; or

  • any statement, document or extract setting out facts or other matters on which that case will be based; or

  • any combination of such a summary, statement, document or extract; and

  • the defendant's previous convictions.

 r10 allows D to request Initial Details before day of first hearing. If no request is made, and in any event, P must serve ASAP and no later than the beginning of the day of the first hearing (r10.2(2)).
Initial P's Disclosure

Mags

In the Magistrates’ Court the prosecution should provide the defence with case papers (i.e. Used Material)

Per s3 CPIA, P must disclose to D all material in P’s possession which has not already been disclosed, which might reasonably be considered capable of undermining the case for P against D, or of assisting the case for D.

Crown Court

In the Crown Court, case papers (Used Material) should be served within 50 days of a case being sent where the defendant is in custody and 70 days where the defendant is on bail;

Mags

within 28 days of a Not Guilty plea and in any event in enough time to allow the defendant and his legal advisers to consider the evidence (paragraph 57 of the Disclosure Guidelines);

Crown Court

In the Crown Court, case papers (Used Material) should be served within 50 days of a case being sent where the defendant is in custody and 70 days where the defendant is on bail;

r22.2 - P must inform the court once he has complied with initial disclosure.

r22.3 - P must apply in writing to Court for PII ruling and serve on any parties whom D thinks would be directly affected by disclosure. Hearing must be in private.
Defence Disclosure

What is a Defence Statement?

s6A defines it as:

  • Nature of D’s defence;

  • Facts in issue & why;

  • Facts relied on;

  • Point of law relied on.

  • Name, address, DoB of any alibi W, and disclose any information likely to be of “material assistance” in identifying such witnesses.

  • s6D - D must give notice to the court and P of any expertr’s name and address whom he seeks to rely upon.

  • s6C - D must give to the court and prosecutor a notice indicating whether he intends to call any W. He must give name, address, DoB and any info of “material assistance” in identifying and finding them. He doesn’t have to rename any listed in DS.

NB: “Evidence in support of an alibi” means that because D is in a particular place/area at the relevant time, he couldn’t have committed the offence. This does not include:

  • If offence is continuing one, D is only contradicting P’s evidence, that he was there only part not all of the time;

  • Evidence indicating D was not present at the crime, but with no evidence where he was;

  • D’s whereabouts other than at the time of the offence;

  • Where the offence took place on a Wednesday, and D said he always goes to the gym on Wednesday

No requirement it be signed by D (no power to require in PD), but judge may satisfy himself that D is fully complied with his duties.

If D puts forward no positive defence, then he must simply say he doesn’t admit it, but requires that it be proved by D.

Summary Trial

  • s6 - When P complies with s3 or purports to comply with it, D may then make a Defence Statement and (if he does so) must file with Court, and serve on P.

Trial on Indictment

  • s5 - When P complies with s3 or purports to comply with it, D must then make a Defence Statement and file with Court, and serve on P.

  • s6B - If D provides DS before the relevant time, then he must either give in an updating DS or a written statement saying he has no changes during the relevant time.

When is "Relevant Period"?

Summary Trial:

  • 14dys after P’s disclosure

Indictment:

  • 28dys after P’s disclosure
P's Continuing Duty of Disclosure (s7A)

After P has purported to comply with s3 disclosure, he must keep under review whether there is any material capable of undermining the case for P against D, or of assisting D’s case, and must disclose it to D.

  • This includes a duty to disclose D1’s defence statement to D2, if it might reasonably be considered to help D2’s defence.

  • No right of further disclosure to help with reinvestigation of offence. This duty ends when D is acquitted, convicted, or proceedings stayed.

  • D may apply for a disclosure order under s8 if he has “reasonable cause to believe” that there is material that should have been disclosed but hasn’t.

Faults in P’s Disclosure

  • Failure of P to disclose either under s3 or s7A is not of itself grounds for staying, unless there is such delay it denies D a fair trial.

Faults in D’s DS

  • This section applies:

    • If, under s5, D fails to give a defence statement, updating defence statement at all (or within the relevant time), or relies upon a defence/witness/alibi not set out in his defence statement

    • If, under s6, D gives an initial defence statement outside the relevant period, he fails to give an updated statement, gives a witness notice outside the relevant period, or calls a witness not adequately identified

  • Any party or the court may comment upon it, and the court or jury may draw such inferences as appear proper when determining whether D is guilty.

  • s6E(2) CPIA - Judge can warn the defendant at PCMH or other pre-trial hearing that failure to comply with the relevant provisions may lead to comment being made or adverse inferences being drawn. Similarly, the Disclosure Guidelines states that (para 33) “Prosecutors should challenge the lack of, or inadequate, defence statements in writing, copying the document to the court and the defence and seeking directions from the court to require the provision...

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