Disclosure of unused material in criminal proceedings
The Criminal Procedure and Investigations Act
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 2013 (”the Guidelines”), the Judicial Protocol on the Disclosure of Unused Material in Criminal Cases 2013 (“the Protocol” and the Criminal Justice Act 2003 (“CJA 2003”). It explains the disclosure regime which has been in place since 4 April 2005 and which applies to all investigations commenced on or after that date. The Guidelines make it clear that the regime set out in the CPIA 1996 as updated by the CJA 2003 must be scrupulously followed and Inspectors appointed as disclosure officers must have the requisite experience, skills, competence and resources to undertake their vital role. The Criminal Practice Directions emphasis this by stating that disclosure is a vital part of the preparation for trial, both in the magistrates’ court and in the Crown court. All parties must be familiar with their obligations.
Inspectors should consult Legal Adviser’s Office if they are dealing with an investigation which commenced before 4 April 2005 and need advice on the disclosure regime applying to that investigation.
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. There are currently two Codes operating in parallel: one which applies to investigations started before 19 March 2015 and a newer Code which applies to investigations begun on or after that date. The main change in the new Code is an amendment to the procedure for disclosure in magistrates’ court proceedings.
3. Sections 32 to 39 of the CJA 2003 made 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 changed 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. If the defence argue that they are entitled to unused material in such a situation, you should contact Legal Adviser’s Office.
6. Part 15 of the Criminal Procedure Rules (“CPR”) 2015 relates to disclosure under the CPIA and applies in the Magistrates’ Court and Crown Court.
7. The Protocol applies to all Crown Court and magistrates’ court cases. The Protocol should be applied by trial judges and should be familiar to both prosecution and defence. It should be read in conjunction with the CPIA and the Guidelines.
8. The Protocol notes that failures in the past to follow disclosure requirements have led to miscarriages of justice. It emphasises that it is the duty of the court to actively manage disclosure issues in every case.
9. The Protocol also states, 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 emphasises 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.