1. Where a criminal investigation began on or after 4 April 2005, the primary and secondary disclosure stages are replaced as follows:
2. The initial disclosure test is an objective test. What may assist the accused has to be objectively assessed from any available prosecution material, including what is said by the accused when questioned in interview by HSE and/or the police. The Attorney General’s Guidelines on disclosure (the Guidelines) develop this further, stating that:
”material can be considered to potentially undermine the prosecution case if it has had an adverse effect on the strength of the prosecution case. This will include anything that tends to show a fact inconsistent with the elements of the case that must be proved by the prosecution" 2
3. Some examples are:
It should be noted that several items considered together may have the effect of undermining the prosecution case or of assisting the defence.
4. If material does not meet the test for disclosure, there is no requirement to disclose it. Indeed, it is the prosecution’s statutory responsibility to carry out disclosure in accordance with the CPIA regime. It is not acceptable to abdicate this responsibility by allowing the defence to inspect (or providing the defence with copies of) everything on the schedules of non-sensitive material, irrespective of whether the material satisfies the relevant test for disclosure. 3
5. Initial disclosure should be carried out as soon as possible after a not guilty plea in the magistrates’ court, or immediately after committal or transfer of cases to the Crown Court. At the same time as disclosing material to the defence, or serving a statement that there is no such material to disclose, the prosecutor must also inform the court (Rule 22.2 Criminal Procedure Rules 2011 (“CPR”).
6. However the Guidelines 4 require that prosecutors must always be alive to the need, in the interests of justice and fairness in the particular circumstances of any case, to make disclosure before the duty arises under the CPIA. 5
7. Section 33 CJA 2003 inserts a new section 6A in the CPIA, requiring a defendant in all trials before the Crown Court to disclose details of his/her defence. It is a voluntary process in cases to be heard by magistrates.
8. Defence disclosure takes the form of a defence case statement, which should be “full and careful” 6, and guidance to judges states that they should deal with delays and failures by the defence firmly and fairly 7. The defence statement should:
9. Whenever a defence solicitor provides a defence statement on behalf of an accused, it will be deemed to be given with the authority of the solicitor’s client. Defence solicitors should ensure that statements are agreed with the defendant before being served. Best practice is that the accused should show agreement with the contents of the statement by signing it.
10. If the accused is a body corporate, anyone signing the statement should have written authorisation from the company to sign on its behalf.
11. A defence statement should be served on the prosecution and the court 8 in accordance with the following time limits:
In these cases, the relevant period begins with the day on which the prosecutor complies or purports to comply with the duty of initial disclosure
This time period can be extended by order of the court on the application of the accused and if it is satisfied it would be unreasonable for the accused to comply with the original time limit. Any application to extend the period must be made within the relevant period (14 or 28 days), specify the grounds on which it is made and the number of days extension applied for.
12. If the defence statement is inadequate, a disclosure officer and/or prosecutor will not be able to make a properly informed decision about whether any unused material that has not been disclosed might assist the defence case, or whether the investigator should undertake any further enquiries. In these circumstances, the disclosure officer can, via the prosecutor:
13. Following service of a defence statement, the defence may apply to the court for additional disclosure if they have reasonable cause to believe that the prosecution holds material which it is required to disclose.
14. Section 34 of the 2003 Act inserts a new s.6C into the Criminal Procedure and Investigations Act 1996, requiring the defence to give the prosecutor and the court advance details i.e. name, address and date of birth of any witnesses they intend to call at a trial. This allows the prosecution to check, for example, whether the witness has any relevant previous convictions.
15. In certain circumstances the investigator may interview such witnesses if they consent (see the section on witness statements) for further guidance.
16. The new disclosure requirements are mandatory in both the Crown Court and the magistrates' court and apply to any case in which the accused pleads not guilty in the Magistrates Court on or after 1 May 2010 or any case which is committed/sent to the Crown Court on or after that date. The defence should comply in accordance with the following time limits:
In these cases, the relevant period begins with the day on which the prosecutor complies or purports to comply with the duty of initial disclosure.
The same provisions for extension of the time limit apply as for service of defence case statements. 9
17. Where the accused fails to comply with the witness disclosure requirement, the same sanctions will be available as for other defence disclosure failures (adverse comment by any party to the proceedings and adverse inference on the part of the court, but not contempt of court 10).
18. Section 7A CPIA imposes on the disclosure officer and prosecutor a requirement to undertake a process of continual review, applying the disclosure test to ensure that additional disclosure is not required.
19. The Guidelines require that, in deciding whether non-sensitive material should be disclosed at any stage of the investigation or prosecution, prosecutors should resolve any doubt they may have in favour of disclosure. If the material is sensitive, a court should decide whether it should be disclosed.
20. If, on receipt of a defence statement, there is material which is required to be disclosed, the prosecutor must do so as soon as reasonably practical. If the prosecutor considers no such disclosure is required, s/he must give to the accused a written statement to that effect
21. If you are unsure whether or not material should be disclosed, you should obtain advice through your line management chain. If there is continuing doubt, you should contact your legal liaison point, setting out why you believe the material should, or should not, be disclosed.
22. In all cases the prosecutor must consider disclosing material which is relevant to sentencing, for example information which might mitigate the seriousness of the offence or assist the accused to lay blame in whole or in part upon a co-accused or another person.
23. The interests of justice will also mean that material should continue to be considered post conviction. Any material which might cast doubt on the safety of a conviction should be brought to the attention of the prosecutor immediately.
24. The preparation of a Friskies schedule will assist in highlighting such material. However it may still be necessary to disclose more detailed material held by the prosecution that mitigates the seriousness of the offence or the accused’s role in the offence.