Unit 2 - Blackstone's Notes PDF

**Syllabus Area 5. Disclosure of unused material and defence statements** 1. Investigator's duty to retain unused material (detailed knowledge not required), prosecutor's duty of disclosure and the test for determining whether unused material should be disclosed by the prosecution 2....

**Syllabus Area 5. Disclosure of unused material and defence statements** 1. Investigator's duty to retain unused material (detailed knowledge not required), prosecutor's duty of disclosure and the test for determining whether unused material should be disclosed by the prosecution 2. Time limits for prosecution disclosure, applications to compel prosecution to disclose and the continuing duty to review 3. Defence duties of disclosure, defence statements and consequences of defence disclosure failures 4. Public interest immunity and third party disclosure (NB this will not be specifically looked at in the workshop) **D9.2** The statutory regime governing the disclosure of unused material by the prosecution and the disclosure of the defence case is set out in the CPIA 1996, Part I (ss. 1 to 21), and supplemented by the Code of Practice issued under the CPIA 1996, s. 23 Responsibilities of Investigators and Disclosure Officers ========================================================= **D9.8** The CPIA Code sets out the functions of individuals within a criminal investigation and their responsibilities in the disclosure process (albeit that different functions may be performed by the same individual). Among the definitions in the CPIA Code, certain key roles are notable, namely: 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 (para. 2.1). The CPIA Code emphasises the 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 (paras. 3.3 to 3.7) D9.10 -- DUTY TO RECORD AND RETAIN MATERIAL What amounts to material that is \'relevant to an investigation\' is widely drawn. The CPIA Code provides (para. 2.1) that 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. Thus, material is to be considered potentially relevant unless it is incapable of having any impact on the case. \'Material\' includes material gathered in the course of the investigation (e.g., documents seized in the course of searching premises) and generated by the investigation (e.g., interview records) (para. 2.1). The CPIA Code expressly identifies that the duty to retain material will include, for example, the 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 (para. 5.4). The CPIA Code makes clear that the duty to retain material does not extend to items purely ancillary to the above categories which possess no independent significance, such as duplicates of documents (para. 5.6). D9.12 DUTY TO REVEAL MATERIAL TO PROSECUTOR In Crown Court cases, the disclosure officer must prepare a schedule on a form, known as the MG6C, which lists such retained material. In magistrates\' court cases where the accused is likely to plead not guilty, a streamlined disclosure certificate is prepared. It is these schedules which the prosecutor will review when making decisions as to whether material is to be disclosed to the defence, applying the relevant statutory test. A list of material identified as likely to include information which meets the test for prosecution disclosure is set out at para. 6.6 of the CPIA Code. Such material includes: 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. Any \'sensitive material\' should be listed in a separate schedule or, exceptionally, disclosed to the prosecutor separately. Sensitive material is defined as material which the investigator believes would give rise to a real risk of serious prejudice to an important public interest if it were to be disclosed (para. 2.1) (see further D9.50).  D9.13 -- RESPONSIBILITY OF PROSECUTOR TO REVIEW MATERIAL It is the 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. That task is undertaken applying the statutory test for disclosure contained in the CPIA 1996, s. 3 (see D9.16). However, the duty on a prosecutor to review material and, where necessary, direct the disclosure of that material is a continuing one and the disclosure should be kept under review throughout proceedings (see D9.25).\ \ **D9.14** **Pre-charge Engagement **Annex B to the A-G\'s Guidelines sets out a scheme of pre-charge engagement, under which 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 (paras. 1 and 3). The scheme is intended to facilitate earlier identification of lines of inquiry, narrowing of trial issues and resolution of cases. D9.15 disclosure post-charge but prior to statutory obligation D9.16 STATUTORY TEST: INITIAL DISCLOSURE Though prosecution disclosure may be required in other circumstances (see D9.15), the main duty of the prosecution to make disclosure of material other than its case arises under the CPIA 1996, s. 3. **Section 3 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\'.** **D9.19** The A-G\'s Guidelines set out factors for a prosecutor to consider in deciding whether the s. 3 test is met for the purposes of initial disclosure in relation to any piece of material, including (para. 84): -  (a)     the use that might be made of the material in cross-examination; -  (b)     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; -  (c)     its capacity to suggest an explanation or partial explanation of the accused\'s actions; -  (d)     its capacity to undermine the reliability or credibility of a prosecution witness; -  (e)     the capacity of the material to have a bearing on scientific or medical evidence in the case. D9.23 -- SUMMARY TRIALS - NATURE OF PROSECUTION'S OBLIGATIONS By virtue of s. 1(1), the CPIA 1996 partially incorporates summary proceedings into the statutory disclosure scheme (see D9.2). 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 (CPS Disclosure Manual, ch. 3). 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 (CPIA Code, para. 6.4). In cases heard in the magistrates\' court and the youth court, prosecutors should always consider whether a Disclosure Management Document would be beneficial. D9.24 TIME-LIMITS FOR DISCLOSURE There are no statutory time-limits for disclosure of unused material in the Crown Court That being the case, the default position is set out in the CPIA 1996, s. 13(1): disclosure must be made as soon as reasonably practicable after the happening of a particular event, such as service of the prosecution case. In 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 (para. 10.4). D9.25 CONTINUING DUTY TO REVIEW D9.27 DEFENCE APPLICATIONS FOR DISCLOSURE FROM PROSECUTION\ \ 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. D9.30 THE DEFENCE STATEMENT The areas that the statement must cover are set out in s. 6A of the CPIA 1996 and 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. D9.34 ALIBI 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.\ \ D9.25 NOTIFICATION OF DETAILS OF DEFENCE WITNESSES D9.38 DEFENCE STATEMENTS IN CASES TRIED SUMMARILY In cases tried summarily there is no obligation on the defence to provide a defence statement. However, 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\ \ D9.41 DEFENCE STATEMENTS IN CASES TRIED IN THE CROWN COURT- TIME LIMITS By the Criminal Procedure Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011, reg. 2, the defence statement must be served within 28 days of the prosecution\'s compliance (or purported compliance) with the duty of initial disclosure. D9.43 SANCTIONS FOR FAILURE IN PROVIDING DEFENCE MATERIALS Public Interest Immunity ======================== **D9.50** 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. In such circumstances the 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 (*H*\[2004\] UKHL 3).