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Disclosure Notes

BPTC Law Notes > BPTC Criminal Litigation Notes

This is an extract of our Disclosure document, which we sell as part of our BPTC Criminal Litigation Notes collection written by the top tier of City Law School students.

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Disclosure??

Lots of investigative material builds up during a criminal investigation
(witness statements, documents, CCTV etc).
From this material, prosecution decide which material will be used (i.e.
relied upon at trial) and which will be unused (not relied upon at trial.
Used material = material prosecution rely on at trial to prove its case against a D.
o Used material consists of: the case papers & other material forming part of evidence, including items eg; the indictment, statements from prosecution witnesses; D's record of taped interview;
other documentary exhibits (eg plans/diagrams).
o It is from this material that D will know what the case against him is.
Unused material = investigative material not being relied upon by the prosecution;
o eg statements from witness prosecution is not relying upon at trial to prove its case;
o items eg records of previous convictions of prosecution witnesses; disciplinary findings against police officers.

The importance of unused material???can be extremely important to a Defendant in trial.
Often a case will be based on a number of witnesses whose evidence, if believed is sufficient to convict D. There might be other witnesses who throw doubt on this.
IF prosecution decides to prosecute (because passed full code test, (1)
realistic prospection of conviction & (2) in public interest) ? would be wrong to only reveal to D the material that supports the prosecution case.
Fairness demands that: material in hands of prosecution that might help a Defendant is served on D.
D may then, if so chooses, present that material in his defence at trial.
R v H and C (HL, 2004): 'fairness ordinarily requires that any material held by prosecution which weakens its case or strengthens that of the
D, if not relied on as part of its formal case against the D, should be disclosed to the defence. Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure. The golden rule is that full disclosure of such material should be made'.
SO, full and proper disclosure is at the heart of a fair system of criminal justice. Is a vital part of preparation for trial, so rules have developed re duty to disclose unused material & duty to retain material during a crim investigation.

Main disclosure provisions(a) Crim Procedure & Investigations Act (CPIA), Part 1 (ss1-21) ???

(b) Code of Practice on Disclosure, issued under s23 CPIA ("Disclosure
Code").
(c) Attorney General's Guidelines on Disclosure - for Investigators,
Prosecutors and Defence Practitioners ("AG's Guidelines").
(d) the Judicial Protocol on Disclosure of Unused Material in Criminal
Cases (the 'Judicial Disclosure Protocol').
(e) CrimPR Part 15.
[[NB: disclosure provision in this chapter relate to offences where crim proceedings commenced on/after 1 April 1997]].

4 stages of disclosure

1. investigation stage (duty to record & retain material during investigation)

2. initial duty of disclosure on prosecution

3. Defence disclosure

4. Continuing duty on prosecution to keep disclosure under review

The Statutory Scheme
-CPIA 1996 applies:
o the regime is compulsory re cases sent to Crown Court for trial. The duties begin with arrival of case in Crown Court;
and end with the conclusion of the trial (whether by conviction/acquittal/discontinuation).
o Regime may also apply to any summary trial, including in youth court.
-The CPIA expressly displaces the common law where it applies
[[EXCEPT common-law rules re public interest disclosure]]
-But, common law position remains relevant; and circumstances might arise re disclosure outside CPIA scheme (eg for bail application).
-The essential consideration for a prosecutor at common law =
whether disclosure of any material to the defence is required in accordance with the interests of justice and fairness.
o Lord Bingham, H: where material undermines prosecution case/strengthens defence case, should be disclosed in interests of fairness.
-Staged approach under CPIA regime, re unused prosecution material and defence case:
o there is a statutory duty upon the police officer investigating an offence to record and retain information and material gathered or generated during the investigation

relevant material, which won't be used, should be provided by the police to prosecutor for review

'primary disclosure': prosecution must apply s3 statutory test to the material, and disclose material meeting the test;
usually together with a schedule of all other material recorded ?

and retained. [[there are separate obligations to inform the defence of material which they do intend to use]]
o defence disclosure, s5/6: the defence then have a duty to inform the prosecution of the case which they intend to present at trial

secondary disclosure: the prosecution is under a continuing duty, throughout proceedings, to disclose material which meets the statutory test;
o following service of defence statement & secondary disclosure
(or failure), an accused may make further applications for disclosure.
Commencement Dates (for CPIA regime): Applies to any alleged offence for which a criminal investigation began on or after 1 April 1997

1st Stage: the Investigation stage?

Code

The primary source for responsibilities of investigators relating to unused material is the CPIA Code of Practice under s23 of CPIA
1996; updated in 2015

Applies to all criminal investigations by police officers; AND to persons other than police officers charged with duty of conducting crim investigations.
o A 'criminal investigation' is:
-'...an investigation conducted by police officers with a view to it being ascertained whether a person should be charged with an offence, or whether a person charged with an offence is guilty of it...'
-including:
-investigations into crimes that have been committed
-investigations whose purpose is to ascertain whether a crime has been committed (with a view to possible crim proceedings)
-investigations which begin in belief a crime may be committed (eg police keep premises/individuals under observation).
Responsibilities of investigators & disclosure officers [D9.8]]
o (a) an officer in charge of the investigation (responsible for directing the investigation and ensure proper procedures in place for recording info & retaining records of info and other material).
o (b) an investigator (any police officer conducting the investigation)
o (c) a disclosure officer (responsible for examining material retain and revealing material to the prosecutor and to the defence at the prosecutor's request).
o In routine cases, all these functions may be carried out by the same person: in complex cases, will be individually assigned.
o Need to retain clear records of identities of these persons

And that they are suitably experienced individuals, independent of the investigation

The investigator must: follow all reasonable lines of enquiry,
whether these point towards or away from the suspect and the investigator must be 'fair and objective'.
o Disclosure officer must: inspect, view, listen to, or search all relevant material that has been retained by the investigator and must provide a personal declaration that this has been done.
-Where any doubt as to whether any material is disclosable ? the disclosure officer must seek advice &
assistance of the prosecutor.
SUMMARY OF BELOW:??

(1) Investigator's Duty ? Record & Retain relevant material

Retain until at least a decision is taken whether to institute proceedings

Once proceedings are commenced ? retain until accused is acquitted or convicted, or case is dropped

Where D is convicted ? retain until D is released from custody (or discharged from hospital;
-If no custodial sentence ? until 6 months from date of conviction.
o If appeal ? retain until appeal is concluded

If material comes to light after proceedings have concluded which casts doubt on safety of a conviction ? duty to consider disclosure.
(2) Disclosure Officer's Duty ? Disclose unused material to the
Prosecutor

Crown Court: Schedule

Mag Court (NG plea anticipate) ? streamlined disclosure certificate

Sensitive materials/public interest ? sensitive materials schedule
(3) Prosecutor's Duty ? disclose material to the defence

Investigator's Duty to record & retain relevant material [D9.10]
o Under Disclosure Code of Practice: duty on the investigator to:
o during a crim investigation, all material (including info) which
'may be relevant to the investigation' must be recorded in a durable or retrievable form. This includes negative information (eg that people saw nothing unusual).
o All material which may be relevant ? must be recorded AND
retained: material which 'may be relevant' is broad, includes if appears to investigator/disclosure officer that it has merely some ?

bearing on any offence under investigation or any person being investigated, or the surrounding circumstances. Is potentially relevant unless is actually incapable of having any impact on the case.
o Includes material gathered in the course of the investigation; and generated by the investigation (eg interview records).
-crime reports;
-relevant parts of incident report books & police officers'
notebooks
-records from tapes/telephone messages (eg 999 calls)
containing description of an alleged offender
-witness statements (and drafts if they differ from final version)
-exhibits
-interview records
-experts reports
-communications between police and experts for purposes of criminal proceedings
-records of first descriptions of suspects
-any material casting doubt on the reliability of a witness.
-any material which casts doubt on the reliability of a confession.
-Further, the duty to retain relevant material includes information provided by an accused person which indicates an explanation for the offence charged;
-Does not include items purely ancillary to the above categories which possess no independent significant, eg duplicates of documents.
o The duty to retain material lasts at least until a decision is taken whether to institute proceedings against a suspect for a criminal offence:
o Once proceedings are commenced ? all material must be retained until the accused is acquitted or convicted; OR
prosecutor decides not to continue.
o Where D is convicted ? the material must be retained at least until D is released from custody (or discharged from hospital);
OR (in cases which did not result in a custodial sentence/hospital order) until 6 months from date of conviction.
o In cases where an appeal against conviction is in progress ? all material that may be relevant must be retained until the appeal is concluded.
o Where material comes to light after proceedings have concluded which throws doubt upon the safety of the conviction -? prosecution must consider disclosure of the material.
Disclosure Officer Duty to reveal (unused) material to the prosecutor
[D9.12]]

Disclosure Code of Practice sets out a procedure for the
Prosecutor to be notified by the disclosure officer of every item of Unused Material.
o In Crown Court cases: the disclosure officer prepares a schedule
(an 'MG6C') which individually lists the items of unused material.
o In magistrates' court cases, where a Not Guilty plea is anticipated: the unused material is listed on a streamlined disclosure certificate.
o [[these are the schedules the prosecutor will review when making decisions re disclosure statutory test]].
o AG Guidelines: descriptions by disclosure officers should be clear
& accurate, containing sufficient detail to enable prosecutor to make an informed decision on disclosure.
o In cases involving sensitive material: (i.e. disclosure of which the disclosure officer believes would give rise to a 'real risk of serious prejudice to an important public interest') then:
-the sensitive materials is listed in a separate 'sensitive material' schedule
-OR, in exceptional circumstances, where its existence is so sensitive it cannot be listed, it is revealed to the prosecutor separately.
-This may form the subject of a Public Interest Immunity
Application at a later stage [[see below]],
-egs of such material: national security, material give in confidence, material re informants, undercover officers,
premises used for surveillance, techniques in detection of crime, re child witnesses.
o An investigator should draw prosecutor's attention to any material that might satisfy the disclosure test; and must give prosecutor a copy of any material falling with certain categories in the Code, including info provided by accused which indicates an explanation for the offence and any material re reliability of a confession or prosecution witness.
o Prosecution duty to disclose is not rendered redundant if officers withhold info from counsel, or if officers withhold info from one another.
o At end of this process, The Disclosure Officer must certify that,
to best of his knowledge & belief, he has complied with his duties under the Disclosure Code of Practice.
-Includes ensuring that all relevant unused material is clearly listed and brought to attention of the prosecutor, so that full & proper disclosure can be made in accordance with the test set out below.
-NB: disclosure officer should exercise judgment, and be directed by the prosecutor, re what is likely to be the most relevant and important material for disclosure [[R v
Olu]]. It is prosecutor's task to identify the issues in the ?

case; and the disclosure officer should act under prosecutor's guidance.
Responsibilities of prosecutor to review material [D9.13]
o Prosecutor task to review the schedule(s) provided by the disclosure officer and assess the need to make disclosure, by applying statutory test in s3.
o Continuing duty to review &, if necessary, direct disclosure.
o AG Guidelines, prosecutor must do all they can to facilitate proper disclosure, including: probing actions taken by disclosure officers; reviewing schedules; taking action to correct/improve them.
o Prosecution must consider any defence statement thoroughly.
o Prosecutor should advise the investigator if any lines of enquiry should be pursued; and challenge the lack of, or inadequate defence statements, in writing.
o Prosecution advocates must ensure all material which ought to be disclosed is disclosed to defence; satisfy themselves they are in possession of all relevant material; and that they have been fully instructed re disclosure matters; and keep all disclosure decisions under review.
o R (2016), CA, 5 broad presumptions re disclosure regime:
-(a) the prosecution are in driving seat re stage of primary disclosure
-(b) prosecution must encourage dialogue and prompt engagement with the defence
-(c) the law is prescriptive of the result of disclosure, not the method by which the process should operate
-(d) the process should be subject to robust case management by the judge, utilising full range of case management powers
-(e) flexibility is critical
-[[in that case, very complex fraud, CA endorsed practice of
'dip sampling' material, and use of search tools, to satisfy the disclosure obligation in a practicable and effective manner, where quantity of material would be unmanageable otherwise]].

(common-law) Disclosure Post-Charge but Prior to Statutory
Obligation [D9.14]?CPIA scheme requires service of unused material at certain points.
But, at common law and under AG Guidelines: investigators &
prosecutors must recognise that, in interests of justice & fairness ? in particular circumstances, may require disclosure of material before the statutory duty arises (after commencement of proceedings).
'common law duty of disclosure may arise before the statutory duty arises': However, even when this statutory duty has not arisen, a

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