BPTC Law Notes BPTC Criminal Litigation Notes
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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.
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).
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;
eg statements from witness prosecution is not relying upon at trial to prove its case;
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
investigation stage (duty to record & retain material during investigation)
initial duty of disclosure on prosecution
Defence disclosure
Continuing duty on prosecution to keep disclosure under review
The Statutory Scheme
CPIA 1996 applies:
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).
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.
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:
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]]
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;
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.
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...
Buy the full version of these notes or essay plans and more in our BPTC Criminal Litigation Notes.
A collection of the best BPTC notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor".
In short, these are what we believe to be the strongest set of BPTC notes available in the UK this year. This collection of BPTC notes is fully updated for recent exams, ...
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