Disclosure stages

The revised disclosure test

1. Where a criminal investigation began on or after 4 April 2005, the primary and secondary disclosure stages are replaced as follows:

• Initial prosecution disclosure. This requires the prosecution to disclose any unused material which might reasonably be considered capable of undermining the prosecution case or of assisting the case for the accused.¹
• Defence disclosure. This is made by a "defence statement", which is mandatory in Crown Court cases and voluntary in magistrates' court cases.
• Continuing duty of disclosure. The prosecutor must keep under review the question of whether there is material which might reasonably be considered capable of undermining the prosecution case or of assisting the case for the accused. This duty specifically arises following receipt of a defence statement.

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:

• A witness statement which contradicts or casts doubt on other evidence on which HSE intends to rely;
• A notebook entry that is inconsistent with the investigator’s final conclusions;
• A series of measurements of airborne solvent levels, one or more of which are significantly lower than the majority;
• A draft expert statement that indicates a formed view which conflicts wholly or partly with the final opinion.

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.

6. However the Guidelines⁴ 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

Defence disclosure

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 fairly⁷. The defence statement should:

• Set out the nature of the accused’s defence, including any particular defences on which he intends to rely;
• Indicate the aspects of the prosecution case with which the defendant takes issue;
• Set out, in the case of each such matter, why he takes issue with the prosecution;
• Indicate any point of law (including any point as to the admissibility of evidence or an abuse of process) which he wishes to take, and any authority on which he intends to rely for that purpose;
• Give particulars of any alibi, including the name, address and date of birth of any witness who is able to give evidence in support of the alibi, or as many details as are known to the accused when the statement is given;
• Provide any information in the accused’s possession which might be of material assistance in identifying any such witness.

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 within 14 days of the prosecution purporting to serve initial disclosure. This time period can be extended with the court’s agreement but any application to extend the period must be made within the 14 days.

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:

• request more information; and
• inform the defence that the inadequacy of the defence disclosure will be made known to the court.

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.

Duty of ongoing review and disclosure

14. 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.

15. 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.

16. 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

17. 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.

---

Footnotes

1. Section 3 Criminal Procedure and Investigations Act 1996 (“CPIA”) as amended by section 32 Criminal Justice Act 2003 (“CJA 2003”).
2. Para 10 of the Guidelines.
3. Disclosure: A protocol for the control and management of unused material in the Crown Court (Court of Appeal, 20 February 2006).
4. Paras 55 - 56 of the Guidelines.
5. R v DPP ex parte Lee [1999] 2 All ER 737.
6. Disclosure: A protocol for the control and management of unused material in the Crown Court, para 40.
7. Disclosure: A protocol for the control and management of unused material in the Crown Court, para 29: “Delays and failures by the defence are as damaging to the timely, fair and efficient hearing of the case as delays and failures by the prosecution.” The ultimate sanction for a late, incomplete or inadequate defence statement is the drawing of an inference at trial in deciding whether the accused is guilty (section 11 CPIA).