Disclosure Notes

• Now accepted that D in criminal case must be given notice of the case against him and an adequate chance to meet it – by challenging prosecution evidence and calling evidence of his own.

• Duty of prosecution to disclose evidence to the defence has been crucial feature of criminal trial. It ensures a fair trial and redresses imbalance of investigative powers.

  • Traditionally ambush was seen as the proper technique for both prosecution and defence.

• Common law duty developed owed by prosecution to defence:

  • Obligation to notify defence of evidence which the prosecution intended to rely upon – duty to prove advance information

  • Duty to make available to the defence any material of relevance to the case upon which they do not intend to rely – unused material

    • From early 1980s – this notion of disclosing unused material was developed bc of various miscarriages of justice.

    • Then 1990s, Home Office felt CL duty was too burdensome and enacted the CPIA 1996 which amended and codified rules created by courts and created ‘two tier’ structure of primary and secondary disclosure. Narrowed unused material duty to those things he thought undermined the case.

    • CJA 2003 amendment in favour of defence – single objective test now applies for disclosure of unused evidence + pros under continuing duty to disclose.

• Now, the rules on disclosure are a mix of case law, primary and secondary legislation, Codes and guidelines etc. Auld recommended single instrument but this has not been acted upon.

Criminal Procedure and Investigations Act 1996 (CPIA)

Application:

• s.1(3) – Pt1 applies in relation to alleged offences into which no investigation had begun before 1 April 1997.

• s.1(4) - defines criminal investigation as “an investigation which police officers or other persons have a duty to conduct with a view to it being ascertained (a) whether a person should be charged with an offence, or (b) whether a person charged with an offence is guilty of it”.

Key parts of the scheme:

1. Statutory duty on police officer investigating offence to record and retain information and material gathered or generated during the investigation.

2. Prosecution should inform defence of certain categories of that material which they do not intend to use at trial.

3. Defence then inform prosecution of case which they intend to present at trial

Investigator’s duty: s.23 CPIA requires Sec of State Code of Practice to govern police investigations

the investigator’s duty. Investigator is responsible under the Code of Practice to ensure information is recorded and retained until proceedings are concluded + for 6 months if convicted.

• Must prepare schedule of material to be retained when investigator believes that the offence will be tried in Crown Court or that accused will plead not guilty at summary trial.

• Should draw prosecutor’s attention to any material which might undermine the prosecution case + anything that will help defence based on defence statement.

• Any new evidence in the same way

• Where prosecutor requests must disclose to D (a) material which might undermine p case (b) material which might assist defence and (c) material the court orders should be disclosed.

So the statute has put the police disclosure officer at the centre of the obligation to disclose material in the possession of the prosecution.

Is this appropriate given the low level of disclosure training officers get?

Prosecution disclosure

Main duty to disclose unused material is in the CPIA

• s.3(1), as amended by CJA 2003, requires disclosure of previously undisclosed material to the accused ‘if it might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused’.

  • If no such material, give accused a statement tot hat effect.

• As soon as reasonably practicable – s.13

• No disclosure if court decides it is not in public interest – s.3(6)

Judgment of whether material should be disclosed

• Keane test under common law used to apply – held that material should be disclosed if it could be seen on a sensible appraisal prosecution:

  • (a) To be relevant or possibly relevant to an issue in the case

  • (b) Raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use

  • (c) To hold out a real (as opposed to a fanciful) prospect of providing a lag on evidence which goes to (a) or (b)

• Gov in CPIA wanted, by use of the word ‘undermine’, to narrow the Keith test of relevance.

  • Though was emphasised that evidence which would undermine the prosecution case would include more than evidence fatal to the prosecution case.

    • So material which has an adverse inference on the strength of the prosecution case.

• One category of material which might undermine the prosecution case is previous convictions of the prosecution witnesses.

  • The Court of Appeal in Vasilou said that the appellant’s conviction was unsafe because the prosecution failed to reveal the previous convictions of their witnesses. Not disclosing it meant that the appellant had no chance to challenge the character of the witnesses.

Defence Disclosure

• s.5: once primary prosecution disclosure happens + case is committed, accused must give a defence statement to prosecutor and court

  • s.6A on contents - it is a written statement which:

1. sets out the nature of the accused’s defence, including particular defences upon which he intends to rely;

2. indicates the matters of fact on which he takes issue with the prosecution

3. sets out why he does so; and

4. indicates any point of law (including those as to admissibility of evidence or abuse of process) which he wishes to take and authority relied on.

• Particulars of any alibi must be given, including the name, address and date of birth of any alibi witness, or information that might be of use in finding the witness if his or her name or address is not known.

Duty imposed by the CPIA is novel as historically there has been no obligation to reveal the...

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