Disclosure of Unused material .docx

***[Disclosure of unused material and defence statements -- 3 Q's ]*** *[D9.2 What is the statutory regime at common law for disclosure of unused material? ]* - The regime is compulsory in relation to cases sent to the Crown Court to be tried on indictment. - Statutory duties begin with t...

***[Disclosure of unused material and defence statements -- 3 Q's ]*** *[D9.2 What is the statutory regime at common law for disclosure of unused material? ]* - The regime is compulsory in relation to cases sent to the Crown Court to be tried on indictment. - Statutory duties begin with the arrival of the case (by whatever route) in the Crown Court (s. 1(2)) and end with the conclusion of the trial, whether by conviction, acquittal, or the discontinuation of proceedings. - Any summary trial, including those in the youth court, where the defendant has pleaded not guilty. - Disclosure obligations also now exist in relation to cases expected to be suitable for summary trial in which a not guilty plea is anticipated. - CPIA 1996 expressly provides that it displaces the common law in cases to which it applies save in respect of common-law rules governing whether disclosure is in the public interest. - Common law regime is relevant circumstances may arise in which a prosecutor may be required to disclose material to the defence outside the scheme of the CPIA 1996. Essential consideration for a prosecutor is whether disclosure of any material to the defence is required in accordance with the interests of justice and fairness. - Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence. - Duty of disclosure at every stage, but does not require same level of disclosure at every stage. Staged approach of unused material by prosecution -- - Police officers must when investigating to record and retain all information and material, gathered or generated, that may be relevant to the investigation. - Material which is relevant to the investigation but is not expected to form part of the prosecution case should be provided by the police to the prosecutor for review (see D9.12 to D9.13). - The prosecution must apply the statutory test in the CPIA 1996, s. 3, to that material and must disclose any material meeting that test, usually together with a schedule of all the other material recorded and retained (see D9.13 to D9.29: separate obligations apply as regards material which is intended to be used). - The defence, in turn, have a duty to inform the prosecution of the case which they intend to present at trial (see D9.30 to D9.48). - The prosecution are, throughout proceedings, under a duty to disclose material which meets the statutory test for disclosure, which may prompt further disclosure (e.g., following the defence statement (see D9.25)). - Following service of the defence statement and any further disclosure (or a failure to make further disclosure), an accused may make further applications for disclosure (see D9.27). Applications to be made to the court in circumstances where there is a dispute about whether the prosecution should disclose certain unused material. - Sanctions laid down for a defendant who fails to provide details of the case on a timely basis and/or provides false or inconsistent information. *[D9.4 --]* The disclosure provisions of Part I of the CPIA 1996 apply to any alleged offence for which a criminal investigation began on or after 1 April 1997. *[D9.6 -- Stage 1 -- Investigative stage -- ]* Applies to all criminal investigations carried out by police officers, person\'s other than police officers charged with the duty of conducting the investigation. What is 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. - investigations into crimes that have been committed - investigations whose purpose is to ascertain whether a crime has been committed - investigations which begin in the belief that a crime may be committed, for example when the police keep premises or individuals under observation for a period of time, with a view to the possible institution of criminal proceedings. *[D9.8 -- What are the responsibilities of the investigators and disclosure officers? ]* - An **'investigator'** --- any police officer involved in the conduct of a criminal investigation; - a **'disclosure officer'** --- the person responsible for examining material retained by the police during the investigation and for revealing material to the prosecutor; and - the '**officer in charge of an investigation'** --- the police officer responsible for directing a criminal investigation, including ensuring that proper procedures are in place for recording information, retaining records of information and other material in the investigation Need to retain clear records of the identities of the persons performing these roles; that they are carried out by suitably experienced individuals, independent of the investigation; and that the investigative process is tailored to the circumstances of each case. *[D9.10 -- What is the duty to record or retain information? ]* - Investigators must record, in a durable or retrievable form, **all material which may be relevant to the investigation and which is not already recorded**. This obligation to record includes negative information, e.g., the fact that a number of people present at a particular place and time saw nothing unusual. - Retaining all material obtained in a criminal investigation that may be relevant to the investigation. **Material will fall within this category if it appears to an investigator or disclosure officer that it has merely some bearing on any offence under investigation or any person being investigated, or on the surrounding circumstances of the case.** - Material is in course of investigation and generated by the investigation. Duty to retain following categories of material: - Crime reports, including crime report forms, relevant parts of incident report books and police officers' notebooks; final versions of witness statements; draft versions of witness statements where their content differs from the final version; interview records (written or taped); expert reports and schedules; any material casting doubt upon the reliability of a confession; and any material casting doubt on the reliability of a witness. - Does not include material ancillary to the above material without any independent significance. *[D9.12-D9.17 What is the duty to reveal material to the prosecutor? ]* - Retained material which may be relevant to an investigation, but which the disclosure officer believes will not form part of the prosecution case, must be listed on a schedule. - **Obligation arises in all cases that will be heard, or are likely to be heard, in the Crown Court and all cases in the magistrates' court where the accused is likely to plead not guilty.** - **Crown Court cases, the disclosure officer must prepare a schedule on a form, known as the MG6C,** which lists such retained material. **Magistrates' court cases where the accused is likely to plead not guilty, a streamlined disclosure certificate is prepared.** Prosecutor will review these stages to decide whether material is to be disclosed to prosecution. Materials which are likely to include information which meets test for prosecution -- - Records of telephone messages, incident logs, contemporaneous records of the incident (such as crime reports and crime report forms, police notebook entries, records of actions carried out by officers and CCTV footage), custody records, previous accounts of complainants or witnesses, interview records (written or taped) and any material casting doubt on the reliability of a witness. **'sensitive material'** should be listed in a separate schedule or, exceptionally, disclosed to the prosecutor separately. (would give rise to a real risk of serious prejudice to an important public interest if it were to be disclosed). **Description by disclosure officer** -- Non-sensitive schedules should be clear and accurate and must contain sufficient detail to enable the prosecutor to make an informed decision on disclosure. Sensitive schedules must contain sufficient information to enable the prosecutor to decide whether the material should be viewed, bearing in mind its confidential nature. An investigator should draw the prosecutor's attention to any material which might satisfy the test for prosecution disclosure. **The prosecution duty to disclose is not rendered redundant if officers withhold information from counsel,** or if officers withhold information from one another. At the end Officer must verify that the duties imposed have been complied with. *[What are the prosecutors responsibilities to review material? ]* Prosecutor's task to review the schedule(s) provided by the disclosure officer and to assess the need to make disclosure of the underlying material to the defence. - **applying the statutory test for disclosure contained in the CPIA 1996, s. 3** - is a **continuing duty and the disclosure** should be kept under review throughout proceedings - Require prosecutors to do all that they can to **facilitate proper disclosure.** Bringing concerns about inadequate inspection of relevant material to the attention of disclosure officers (para. 22), probing actions taken by investigators (para. 24), reviewing schedules (taking action to correct or improve them where necessary) (para. 83) and considering defence statements thoroughly (para. 126). - **Where defence statements are inadequate, prosecutors should challenge this in writing** (para. 126). **Prosecutors should provide the investigator with a copy of the defence statement and advise the disclosure officer on whether any further reasonable lines of inquiry need to be pursue**d, what to look for when reviewing unused material and what further material may need to be disclosed it is the task of the prosecutor to **identify the issues in the case and for the disclosure officer to act under the prosecutor's guidance; the disclosure regime will not work in practice unless the disclosure officer is directed by the prosecutor as to what is likely to be most relevant and important so that the officer approaches the matter through the exercise of judgement, not simply as a schedule-completing exercise.** Cases involving large quantity of digital material -- - The prosecution are, and must be, in the driving seat at the stage of primary disclosure. - The prosecution must encourage dialogue and prompt engagement with the defence. - The law is prescriptive of the result of disclosure, not the method by which the process should operate. - The process should be subject to robust case management by the judge, utilising the full range of case management powers. - Flexibility is critical. Court endorsed the practice of '**dip sampling'** material and the use of search tools by the prosecution. **defence are under a corresponding duty to engage with the prosecutor at an early stage in order to aid understanding about the defence case** and the likely issues for trial. *[What is pre charge engagement? ]* - Prosecutors, investigators, suspects and suspects' legal representatives may enter into discussions about an investigation **at any time after the first PACE interview and before charge.** facilitate earlier identification of lines of inquiry, narrowing of trial issues and resolution of cases. Such engagement is entirely **voluntary** and may be terminated at any time decision not to engage at the pre-charge stage should not be held against a defendant at a later stage in the proceedings **No adverse inferences** where a suspect fails to mention a fact when asked about a matter in pre-charge engagement. Pre-charge engagement does not refer to engagement between the parties to an investigation by way of further PACE interviews (para. 3), should not be considered a replacement to a further interview with a suspect (para. 7) and should not be sought in respect of matters where it is likely that the prosecution will seek to rely on the contents of the suspect's answers as evidence at trial Non-exhaustive list of matters that pre charge interview may entail -- - giving the suspect the opportunity to comment on any proposed further lines of inquiry and to identify new ones. - asking whether the suspect is aware of, or can provide access to, relevant digital material; - agreeing key word searches of digital material with the suspect; - obtaining a suspect's consent to access medical records; - the suspect identifying potential witnesses; and - clarifying whether expert or forensic evidence is agreed. May take place whenever agreed by parties that will assist the investigation. - Unrepresented suspects should be told their right to legal advice and given the opportunity to seek representation. The pre-charge engagement process may be initiated and conducted by investigators, prosecutors, suspects' representatives or unrepresented suspects **[the statutory disclosure rules will not apply]** However, **disclosure of unused material must be considered as part of the pre-charge engagement process, to ensure that the discussions are fair and that the suspect is not misled as to the strength of the prosecution case**. Pre-charge engagement discussions **should be recorded in full and the record signed**. *[What about disclosure post charge but prior to statutory obligation? ]* at common law and under the A-G's Guidelines, prosecutors' **duties apply at all stages of a case, from charge to sentence and post-conviction and regardless of anticipated or actual plea** CPIA Code requires **disclosure with the initial details of the case of material that might assist the defence with the early preparation of its case or at a bail hearing,** irrespective of the anticipated plea. **relevant previous convictions of key prosecution witnesses and statements that have been withdrawn by witnesses.** there might well be circumstances in which it would be helpful to the defence to know of unused material at an earlier stage. For example: - the previous convictions of the alleged victim when they might be expected to help the defence in a bail application; - material to help an application to stay proceedings as an abuse of process; - material to help the accused prepare for trial, e.g., eye-witnesses whom the prosecution did not intend to use. The question was: **what immediate disclosure (if any) did justice and fairness require in the circumstances of the case?** - Not a full blown extent of disclosure. *[What is the statutory test for initial disclosure? ]* - Requires a prosecutor to disclose 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'.** **no disclosable material,** the accused must be given a written statement to that effect court officer must be informed at the same time. includes material which the prosecutor possesses or has been allowed to inspect under the provisions of the CPIA Code. **test is an objective one** and is to be approached impartially. "Undermined" if it becomes more likely to fall (or fail) as a result. The prosecution case will be more likely to fail if material points to a defect, discrepancy or inconsistency in that case. s**tatutory test extends to anything available to the prosecution which might undermine confidence in the accuracy of evidence called by the prosecution, or which might provide a measure of support for the defence at trial** the fact that material in the possession of the prosecution raises a new issue (particular defence) in the case which might reasonably be considered capable of assisting the defence is likely to meet the statutory test for its disclosure. **It was found to be unarguable that the CPIA 1996 regime applied to documentation created (or received) by an accused** and that documents said to be required for memory refreshing fell within its scope. s\. 3 does **not require disclosure of material which is either neutral in effect or which is adverse to the accused**, whether because it strengthens the prosecution or weakens the defence. D9.17 -- 'overarching principle is that unused prosecution material will fall to be disclosed if, and only if, it satisfies the test for disclosure applicable to the proceedings in question, **subject to any overriding public interest considerations'** *[D9.19 -- What factors should the prosecutors consider when applying the s3 statutory test? ]* - the use that might be made of the material in **cross-examination;** - its capacity to **support submissions that could lead to the exclusion of evidence**, a **stay of proceedings** or a finding that any public authority had acted **incompatibly with the accused's rights under the ECHR;** - its capacity to suggest **an explanation or partial explanation of the accused's actions**; - its capacity to **undermine the reliability or credibility of a prosecution witness**; - the capacity of the **material to have a bearing on scientific or medical evidence in the case.** Material relating to the **[accused's mental or physical health]**, intellectual capacity, or to any ill-treatment which the accused may have suffered in custody is said to be likely to fall within the test for disclosure. review of such material with a presumption that it should be disclosed to the defence. the list of material is not intended to trigger automatic disclosure, There is an enhanced emphasis on the role of the defence not only to engage with the prosecution when prompted to do so, but to be clear at an early stage and notify the court if it is felt that the prosecution have not adequately discharged their obligations. **The defence must not delay raising these issues until a late stage in the proceedings** **Disclosure Management Documents should be carefully prepared by the prosecutor on the basis of information provided by the investigator**. They should be tailored to the individual case and kept up to date as the case progresses. The content of Disclosure Management Documents may include, for example: an explanation as to how disclosure responsibilities have been managed, a summary of the prosecution case, a statement outlining how the prosecutor's approach will comply with the CPIA 1996 regime, and the prosecutor's understanding of the defence case. - these should be served to the defence and the court at an early stage - lines of inquiry pursued, timescales for disclosure, the method and extent of examination of digital material, any potential video footage, steps taken to obtain any third party or international material and the credibility of prosecution witnesses. In cases involving large amounts of digital material, investigators should complete an Investigation Management Document which will inform the Disclosure Management Document that prosecutors should complete. **The defence must also play their part in identifying the real issues in the case, including by defining the scope of any reasonable searches that may locate digital material that meets the disclosure test** **A prosecutor may disclose material to the defence either by providing a copy of the material or allowing inspection at a reasonable time and place.** material must not be disclosed under s. 3 if a court has concluded that it is not in the public interest. Or prohibited by s56 D9.22 -- In addition to providing material under s. 3, under s. 4 of the CPIA 1996, **where the prosecutor has been given a schedule of unused material by a police officer under the CPIA Code (see D9.12), that schedule must be served on the accused when the prosecutor makes disclosure of unused material under s. 3.** the prosecutor acts under section 3, and before so doing he was given a document in pursuance of provision included, by virtue of section 24(3), \(2) In such a case the prosecutor must give the document to the accused at the same time as the prosecutor acts under section 3. *[D9.23 -- What about the prosecutions obligations under summary trial? ]* A **streamlined disclosure certificate should be used in all cases in which a not guilty plea is anticipated,** and which is reasonably expected to be suitable for summary trial Where, however, the accused is charged with a **summary offence or an either way offence and a guilty plea is considered likely, a schedule is not required unless a not guilty plea is subsequently entered or indicated** In MC and YC prosecutors **should always consider whether or not a Disclosure Management Document would be beneficial.** - They are most likely to be beneficial in cases involving: substantial or complex third party material, digital material in which parameters of search, examination or analysis have been set, international inquiries, linked operations, non-recent offending and material held or sought by the investigation that is susceptible to a claim of legal professional privilege - Prosecutors are required to take into account information provided as to the defence case in the case management forms when conducting any review of material. **common-law duties may require the disclosure of material to the accused outside the statutory scheme in accordance with the interests of justice and fairness.** *[D9.24 -- What are the time limits for disclosure? ]* There are **no statutory time-limits for disclosure of unused material in the Crown Court**. - disclosure must be made **as soon as reasonably practicable after the happening of a particular event, such as service of the prosecution case.** Magistrates' court cases, the CPIA Code stipulates that the schedule, i.e. the streamlined disclosure certificate (see D9.12 and D9.23), must be disclosed to the accused either at the hearing at which a not guilty plea is entered, or as soon as possible following a formal indication from the accused or the accused's representative that a not guilty plea will be entered at the hearing. If there is a preliminary hearing, **the judge should seize the opportunity to impose an early timetable for disclosure and to identify any likely problems including as regards third-party material and material that will require an application to the Family Court.** - Timetable of disclosure under review from the first hearing - courts should be provided with an up-to-date timetable for disclosure whenever there are material changes as a result of difficulties that emerge *[D9.25 -- What is the continuing duty to review? ]* - A prosecutor remains under a continuing duty to review questions of disclosure, applying a test in the same terms. - If, **at any time before the accused is acquitted or convicted**, the prosecutor forms the opinion that there is material which might undermine the prosecution case, or be reasonably expected to assist the accused's defence, it must be disclosed to the accused as soon as reasonably practicable, provided that it is not prohibited under s. 7A(8) (public interest) or (9) (relating to the RIPA 2000). - Court has ruled against disclosure on public interest grounds, it must keep under review the question whether it is still in the public interest not to disclose the material affected by its order. - **Duty of continuing disclosure is most likely to crystallise either on service of the defence case statement or during the trial itself as the issues develop**. **After service of the defence case statement**, an investigator must again look at the material retained and draw the prosecutor's attention to any material which might reasonably be considered capable of undermining the prosecution case or of assisting the defence if it were to be disclosed. - If the investigator comes into possession of any new material after complying with these duties, it must be revealed to the prosecutor. **The disclosure officer must also certify compliance with the duties imposed by the CPIA Code after consideration of the defence statement** and whenever a schedule of material is otherwise given or material is revealed to the prosecutor. The duty of continuing review may be triggered during the course of a trial where, for example, **a prosecution witness gives evidence which is materially inconsistent with a statement made earlier to the police.** - If the defence are unaware of the statement, prosecuting counsel should disclose it so that it can be used by the defence in cross-examination to challenge the witness's evidence. **Following conviction there is no general duty on the State (through the police or CPS) to continue to investigate.** there is a **common-law duty to disclose any material that is not known to the accused but which may be relevant to sentence,** such as information which might assist in placing the accused's role in the correct context vis-à-vis other offenders. Article 6, obliged a prosecutor to continue to review unused material, particularly following the receipt of any response to a confiscation statement. Once proceedings have concluded, **the prosecution are still under a duty to disclose any material which might reasonably be considered capable of casting doubt on the safety of the conviction.** - this duty is a more stringent one that that set out in the A-G's Guidelines 2013, under which prosecutors were required only to consider disclosure of such material. - **Pending an appeal the prosecution are obliged to disclose any material not previously disclosed relevant to an identified ground of appeal.** Ordinarily post-conviction disclosure will only arise in respect of material which has come into the prosecution's possession after trial. *[D9.27 -- How can the defence apply for disclosure? ]* - If an accused has served a defence statement (see D9.30) and the prosecution have complied, purported to comply, or failed to comply, with the procedure for further disclosure (see D9.25), **an accused may apply under the CPIA 1996, s. 8, for an order for disclosure of material which should have been disclosed under s. 7A, i.e. material which the prosecutor should have disclosed as material which might reasonably be considered capable of undermining the prosecution case or assisting the accused's case.** - Such an application may relate to **material actually held or inspected by the prosecutor (s. 8(3)), as well as to any material which the prosecutor would be entitled to hold or inspect if requested** (s. 8(4)). - s\. 8 procedure is **not intended for blanket requests** from the defence and that requests for specific disclosure of unused prosecution material which are not referable to any issue in the case identified by the defence case statement should be rejected. **An application for disclosure under s. 8 can only be made if the defence have provided an adequate defence statement**. Any application must describe the material which is subject to the application and explain why there is reasonable cause to believe that the prosecutor is in possession of the material and why it meets the test for disclosure. the case management powers contained in the CrimPR permitted the **judge to deal with issues of disclosure exclusively by reference to written submissions,** and also to limit their length. *[D9.30 -- What are defence statements? ]* - Once the case is sent to the Crown Court and the prosecution case is served, the **accused must give a defence statement to the court and the prosecutor.** - written statement setting out the basis on which the case will be defended. Should include -- - **the nature of the accused's defence**, including any particular defences upon which the accused intends to rely; - the **matters of fact on which the accused takes issue with the prosecution**, with the reasons why; - **particulars of the matters of fact on which the accused intends to rely for the purposes of defence; and** - **any points of law which the accused wishes to take**, with any authorities relied upon. **In respect of the defence, it is a duty to reveal the case which will be presented at trial** (rather than, as in the case of the prosecution, to disclose unused material). *[D9.31 -- ]* - Defence statement consisting of a general denial of the counts in the indictment, accompanied by a statement that D took issue with any witness giving evidence contrary to his denial, was 'woefully inadequate'. - if the accused raises no positive case at all in a defence statement and simply requires the Crown to prove its case, there is no failure to comply defence statement makes clear that this is the accused's position. - **Defence statements should not make general and unspecified allegations** in order to seek far-reaching disclosure and should not describe the defence in ambiguous or limited terms. - **Prosecutors consider defence statements thoroughly and, in the Crown Court, should challenge the lack of or inadequate statements in writing.** - Judges expect a defence statement to contain **a clear and detailed exposition of the issues of fact and law.** - Judges will examine defence statement in detail to ensure it complies with formalities and investigate any failure by the defence to comply with it\'s obligations. - **prosecution must spell out the inferences that they will be asking the trier of fact to draw from the facts adduced in their evidence, given that the defence are obliged to set out their reasoning for disputing issues of fact in that evidence**. - Scope of the defence statement should be viewed in the context of what might reasonably be required of the defence at a stage when they may not be clear about the way in which the prosecution put their case. - Accused is required to disclose what is going to happen at the trial, **but is not required to disclose the confidential discussions with lawyers, nor is the accused obliged to self-incriminate if the accused does not want to.** - lawyer cannot properly advise an accused not to file a defence statement or to omit from it something that is required to be there - **Counsel ought not to accept any instructions to draft or settle a defence statement unless given the opportunity and adequate time to gain proper familiarity with the case and to comply with fundamental requirements which are set out in the guidance.** *[D9.34 -- What is an alibi? ]* - 'evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission' - **If the defence statement discloses an alibi, particulars of alibi must be given.** - **The names, addresses and dates of birth (or as much of this information as is known) of any alibi witnesses whom the accused intends to call must be contained within the defence statement.** - If the accused does not know any of these details, any information in the accused's possession that might assist in identifying or finding any such witness must be given. - it is not necessary that the witness can give evidence or is willing to do so, **just the belief that he can help.** *[D9.35 -- How to notify the details of defence witnesses? ]* - **Defence are under a duty to notify the court and the prosecutor, separately from the defence statement, of any witnesses they intend to call at trial, other than the defendant and any alibi witnesses already notified.** - names, addresses, dates of birth or, if any such details are not known, other identifying information. - **Notice of intention to call a witness must be given within 14 days** (in the case of summary proceedings) **and 28 days** (in the case of Crown Court proceedings) from **the date when the prosecutor complies, or purports to comply, with the duty to disclose under s. 3.** - There is provision for applications for extensions of this period (reg. 3) and for treatment of weekends and bank holidays. - Any change in the plans to call witnesses (including a decision not to call a previously notified witness or to call a witness not previously notified) **must be dealt with by way of an amended notice to the court and the prosecutor.** - these provisions override litigation privilege and legal professional privilege to the extent that such privileges are inconsistent with reasonable requirements for the proper working of the provisions *[D9.38 -- What about defence statements in cases tried summarily? ]* - Cases tried summarily there is no obligation on the defence to provide a defence statement. - Once the prosecutor has complied (or purported to comply) with the duty to disclose unused material (see D9.16), the accused may give the prosecutor and the court a defence statement. - In the absence of a defence statement, the accused cannot make an application for specific disclosure under s. 8, and the court cannot make any orders for disclosure of unused prosecution material. - **Where the accused chooses to serve a defence statement this must be done within 14 days from the date on which the prosecutor complies or purports to comply with the initial duty of disclosure.** The court has power to extend this time-limit on the application of the accused. If the accused provides a defence statement, the requirements in s. 6A. (above) - Defence advocates must give consideration at an early stage to whether to serve such a statement. - Defence statements must contain a clear and detailed exposition of the issues of fact and law in the case and courts should examine them with care to ensure that they comply with the formalities required by the CPIA. - Where late service of a defence statement results in potential delay to the proceedings, any application to adjourn for further disclosure or to make an application under s. 8 must be scrutinised carefully by the court. - Any case which raises difficult issues of disclosure should be referred to a district judge, where one is available. Notwithstanding the absence of a requirement to serve a defence statement, the defence must identify the real issues in a case in accordance with the overriding objective. *[D9.41 --D9.44 -- What are the time limits of defence statements in CC? ]* - **The defence statement must be served within 28 days of the prosecution's compliance (or purported compliance) with the duty of initial disclosure**. defence may apply for an extension, but the application must be made before the deadline expires. state the number of days by which the accused wishes the relevant period to be extended and grounds on which it is made. The court should be satisfied that it would not be reasonable to require the accused to give a defence statement within 28 days. - No limit to the number of applications that can be made. - Time runs from the date of service of a statement by the prosecution under the CPIA 1996, s. 3(1)(h), not from service of the scheduled unused material; however, the **right to further disclosure is not lost if there is a short delay in serving the defence statement.** - Extensions will not be granted lightly or as a matter of course. If an extension is sought, the application ought to be accompanied by an appropriate explanation. - burden on defence representatives to embark on detailed preparation soon after receipt of the prosecution case this responsibility cannot be discharged unless the prosecution make timely disclosure of unused material. *[What happens when you fail to provide defence material? ]* sanctions for failure in defence disclosure which apply if the accused: - fails to give the initial defence statement required under s. 5 in respect of Crown Court cases; - gives the initial defence statement after the 14-day period during which it must be served in the magistrates' court or after the 28-day period during which it must be served in the Crown Court (see D9.41); - fails to provide an updated statement required under s. 6B(1) or a statement that no updating is necessary under s. 6B(4) (note, however, that s. 6B is not yet in force); - supplies the documents in (c) outside the applicable time-limit; - sets out inconsistent defences in the defence statement; - puts forward a defence at trial that was not mentioned in the defence statement; - relies on a matter that should have been mentioned in the defence statement to comply with s. 6A, but was not; - gives evidence of alibi or call a witness to give evidence in support of alibi without having complied with the provisions relating to notification of alibi witnesses; - calls a witness not included or adequately identified in the notice of defence witnesses **The court may comment upon the failure in question.** Other parties (the prosecution and co-accused) may also comment upon any defect in disclosure, but in certain circumstances such comment requires the leave of the court. Leave if -- - The defect that triggers the sanction is a failure to mention a point of law (including failure to mention a point about admissibility of evidence or abuse of process) or authority to be relied on, failure to give notice of or adequately identify a witness, or failure to give such notice in time. **The court or jury may also draw such inferences as appear proper in deciding whether the accused is guilty of the offence concerned.** - Accused **may not, however, be convicted solely on the basis of such an inference.** - Wording of s. 11(5)(b) would preclude the use of an inference from defective disclosure to bolster the prosecution case against a submission of no case to answer, since the phrase 'whether the accused is guilty of the offence concerned' is not apt to describe the decision which the court has to make on such a submission. - The context in which such an inference can be drawn is therefore narrower than that applicable to inferences from silence which explicitly allows an inference to be drawn when the court determines whether there is a case to answer. The court cannot punish by way of contempt of court a failure to comply with its direction to amend (or provide) the defence statement. - It cannot rule as inadmissible the evidence of alibi witnesses on the basis that no defence statement had been served providing details of them - It cannot decline to allow the accused to put forward matters in cross-examination which go to a relevant issue because the material on which such cross-examination is based is produced at a very late stage with no advance notice **The appropriate sanction in all these instances is adverse comment and for the court or jury to be able to draw such inferences as may be proper**. Where a failure to provide a defence statement results in additional expense for the prosecution, a wasted costs order may be appropriate. *[D9.50 -- What is public interest immunity? ]* - Circumstances may arise in a case in which material held by the prosecution and tending to undermine the prosecution or assist the defence cannot be disclosed to the defence, fully or even at all, without the risk of prejudice to an important public interest. - **Courts may be justified in ordering that the material is withheld from disclosure, but they must only allow this to the minimum extent necessary to protect the public interest in question and must never imperil the overall fairness of the trial.** - Applications by the prosecution to the court to withhold material in these circumstances are known as public interest immunity applications *[D9.56 -- What is the practice and procedure of investigators? ]* - Material which might in due course be made the subject of a public interest immunity application must be recorded by investigators in a 'sensitive schedule'. Investigators are to specify the reasons why the material is sensitive, the degree of sensitivity attaching to the material, the consequences of revealing it to the defence, the significance of the material to the issues in the trial, the involvement of third parties in bringing the material to the attention of the police, the implications for continuance of the prosecution if disclosure is ordered, and whether it is possible to disclose the material without compromising its sensitivity. Prosecutors are to consider the possibility of prejudice to the public interest through direct harm or indirectly through incremental or cumulative harm. *[D9.72 -- What are the obligations of the prosecutor? ]* **Investigators to pursue all reasonable lines of inquiry, whether these point towards or away from the suspect**. A fair investigation does not mean an endless investigation, however, and thought must be given to defining and articulating the scope of the investigation. The obligation to make disclosure under the CPIA 1996 and the A-G's Guidelines cannot be avoided by declining to make an inquiry which might produce disclosable material. **Prosecutors are not required to investigate matters or obtain evidence which may help the defence.** **Where such investigation reveals the existence of material held by a third party which may be relevant to the investigation but such material is not obtained, the third party must be informed of the investigation and invited to retain the material in case a request for disclosure is made.** While speculative inquiries of third parties are not required, and there must be some reason to believe that they hold relevant material (CPIA Code, para. 3.6), The test of what are reasonable investigative steps in the circumstances is likely to start from the position of a persistent prosecutor who does not readily take 'no' for an answer (see R (AL)). - The margin of discretion attributable to a prosecutor in pursing third party disclosure is confined by considerations of fairness at common law. *[D15.79 -- What are the pre-trial disclosure of third party material?]* - This will include records held by health and education authorities, or financial institutions. Although applications for such material may commonly be made on behalf of the accused - **The prosecution is placed under an obligation to obtain material in the hands of third parties which might be relevant to the prosecution case.** - The mechanism for securing disclosure of third-party material, unless it is volunteered, is through **the issuing of a witness summons for the production of documents.** - That parties alert the Crown Court to related family proceedings, and at r. 3.5(2)(i) the Court has the power to request information from those proceedings.