1. This section gives an overview of the Criminal Procedure and Investigations Act 1996 (“CPIA”) disclosure regime, taking into account the Human Rights Act 1998, the Attorney General’s Guidelines on disclosure ("the Guidelines”) issued on 4 April 2005 and the Criminal Justice Act 2003 (“CJA 2003”).
2. The CPIA, as amended by the CJA 2003, provides the statutory framework governing the disclosure of unused material in criminal proceedings. A Code of Practice made under Part II of the CPIA details how relevant material obtained in a criminal investigation is to be recorded, retained and revealed to the prosecutor.
3. Sections 32 to 39 of the CJA 2003 make various amendments to the CPIA and apply to investigations commenced on or after 4 April 2005. The Guidelines, however, apply to investigations commenced both before and after that date.
4. The CPIA provisions substantially change the common law rules that operated before the CPIA came into effect. The CPIA provides a system of mutual disclosure between prosecution and defence, which takes place at different stages of the prosecution process.
5. Some common law principles still underlie the CPIA disclosure regime. If the CPIA does not specifically deal with a situation where disclosure is sought by the defence, common law principles may guide a court in deciding the extent of the prosecution duty to disclose unused material 1. If the defence argue that they are entitled to unused material in such a situation, you should contact Legal Adviser’s Office.
6. Part 22 of the Criminal Procedure Rules (“CPR”) 2012 applies in the Magistrates’ Court and Crown Court to applications under the CPIA.
7. The Court of Appeal has issued a Protocol for the control and management of unused material 2, which applies to all Crown Court cases. The Protocol should be applied by trial judges and should be familiar to both prosecution and defence.3
8. The Court noted that failures in the past to follow disclosure requirements had proved costly and had obstructed justice. It emphasised that it is the duty of every judge to actively manage disclosure issues in every case.
9. The Court also stated, however, that it is essential that the trial process does not become overburdened or diverted by erroneous or inappropriate disclosure of unused material, or by misconceived applications to the court. It emphasised that material will fall to be disclosed if, and only if, it satisfies the test for disclosure (subject to overriding public interest considerations). Consideration of irrelevant unused material can consume unjustifiable and disproportionate amounts of time and public resources.