#10407 - Disclosure - BPC Criminal Litigation (formerly BPTC) 2024/2025

DISCLOSURE

Used and Unused Material

Used material = material relied on to prove indictment i.e. the case papers: WSs, exhibits, ROTI

Unused material = material NOT relied upon e.g. PC's pocket book, dead-end police enquiries, repetitive statements, crime reports

Investigator's Duty to Retain and Record Relevant Material

Investigator = police officer investigating crime

Duty to Record and Retain Relevant Material

Code of Practice (under Criminal Procedure and Investigations Act (“CPIA”))– makes investigator responsible for ensuring that any information relevant to the investigation is recorded and retained, whether:

• gathered during the course of the investigation (eg. docs seized in search of premises), OR

• generated by the investigation (eg. interview records)

Where any doubt about relevance of material, investigator should retain it.

Duty to retain particularly applies to:

• Crime reports, report forms, relevant parts of incident report books and POs' notebooks,

• Final versions of Witness Statements,

• Draft versions of Witness Statements where content differs from final version,

• Interview records (written or taped),

• expert reports and schedules,

• any material casting doubt on reliability of a confession,

• any material casting doubt on reliability of a Witness.

Does not extend to purely ancillary items, eg. duplicate copies of docs.

Material must be retained at least until criminal proceedings are concluded

If Defendant convicted, must be retained until at least 6 months after conviction or until Defendant released from custody (whichever is later)

Offences going to Trial

Schedule of Unused Material

Where Investigator believes that Defendant is likely to plead NG at summary trial, or case likely to be tried in Crown Court, he must prepare a schedule listing material retained which does NOT form part of Prosecution case against Defendant.

Any sensitive material should be listed in a separate schedule (material which investigator believes not in public interest to disclose).

Material undermining Prosecution Case

Investigator should draw Prosecution's attention to any material which might undermine the Prosecution case.

The Disclosure officer

= responsible for examining records created during investigation and proceedings and disclosing material as required to the Prosecution or Defendant

Must certify that, to the best of his knowledge and belief, the duties imposed under the Code have been complied with

After Defence Statement

If Defence statement given, investigator must look again at the material retained and draw Prosecution's attention to any material which might reasonably be expected to assist the defence disclosed.

Later Material

If investigator comes into possession of new material, must comply with duties –

• ie. draw to Prosecution's attention if material might undermine Prosecution case or reasonably be expected to assist the defence disclosed.

Prosecution Disclosure

• Before statutory duty to disclose arises, Prosecution may be under common-law duty to disclose such material to the defence at an earlier stage,

  • eg. as it might help the defence in a bail application or to prepare for trial.

The test for disclosure

Main duty to disclose previously undisclosed material if it might reasonably be considered capable of

1. undermining the case of the Prosecution against Defendant; OR

2. assisting Defendant's case

• If no such material – Defendant must be given written statement of this.

• “Prosecution material” - material which Prosecution possesses or has been allowed to inspect.

• “Disclosure”:

  • give to Defence, OR

  • allow Defence to inspect it at a reasonable time and place.

• Disclosure must generally be carried out as soon as reasonably practicable.

• Material must not be disclosed if Court concluded it is not in public interest to disclose it.

• If Prosecution given doc indicating any non-sensitive info which has not been given to Defendant, this also must be given to Defendant at same time as primary prosecution disclosure.

Material to be Disclosed

• Material should be disclosed which might give Defence basis for Cross Examination of a Witness or would support defence arguments that evidence inadmissible or proceedings ought to be stayed.

• AG's Guidelines on Disclosure of Information in Criminal Proceedings: Prosecution should disclose any information which:

  • cases doubt upon the accuracy of any Prosecution evidence,

  • may point to another person having involvement in the commission of the offence,

  • may case doubt upon reliability of a confession,

  • might go to credibility of a Prosecution Witness

  • might support a defence that is raised by Defendant or apparent from Prosecution papers (whether or not consistent with defence all ready advanced by Defendant)

  • may have bearing on the admissibility of Prosecution evidence.

• Previous convictions of Prosecution Witnesses ought to be disclosed (Vasiliou [2000])

Continuing Duty of Review

s7A – Prosecution disclosure duty includes continuing duty to disclose any unused material falling within s3

• Prosecution must, until conviction/acquittal/dismissal, keep under review Q of whether at any time (particularly following disclosure of defence statement) there is Prosecution material which:

  • might reasonably be considered capable of undermining the case for the Prosecution against Defendant, or of assisting the case for Defendant, and

  • which has not been disclosed.

• If there is such material, must be disclosed as soon as reasonably practicable

• Where defence statement given, Prosecution must:

  • disclose any previously undisclosed material which now falls within s3, or

  • provide a written statement that there is no such material.

Notice of Additional Evidence

• If Prosecution, after primary disclosure, wish to add a Witness/Witness Statement – must serve Witness Statement + “notice of additional evidence” on defence

  • no time-limit but must be done before trial

  • if serve very late so Defence do not have time to adjust case in light of Witness – Judge should grant an adjournment.

• Defence have 7 days from service to object

• If no objection – Prosecution can read Witness Statement in Crown Court

• If objection – Prosecution must call Witness or abandon evidence

Time limits for disclosure of used material

General rule

Disclose as soon as reasonably possible

Summary trial in Mags'

Standard direction on NG plea = 28 days after plea

Cases sent to CC under s51

Must consider if practicable to order disclosure at the same time as serves papers (70 days from date matter sent if on bail OR 50 days if in custody)

Defence Disclosure

Duty to reveal the case which will be presented at trial

• 2 types: Defence Statement and Notice of Witnesses.

s5 CPIA - Once Prosecution has made primary disclosure, and case is sent to Crown Court, Defendant must give defence statement to Prosecution and Court.

• If trial in Magistrates Court: may give defence statement

Defence Statement (compulsory in CC / optional in mags')

Contents (s6A)

Defence statement is a written statement which:

• sets out the nature of Defendant's defence (inc. any particular defences relying on)

• indicates matters of fact which takes issue with AND sets out why

• any particular matters of fact wish to rely on in defence

• indicates any point of law (inc admissibility of evidence or abuse of process) which he wishes to take AND authority relied on.

• gives particulars of any alibi (inc. name, address, DOB of alibi W or information of use in finding Witness if address unknown)

  • “alibi evidence” = evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission

Time-limit (CPIA 1996 (Defence Disclosure Time Limits) Regulations 2011)

CC (compulsory) - Defendant must present the defence statement within 28 days beginning with day on which Prosecution complies (or purports to comply) with initial duty to disclose.

• Court can extend period of satisfied Defendant cannot reasonably be expected to give a defence statement within that period (no limit on length or no of extensions)

• Application for extension must be made within “relevant period” (ie. within period Defence Statement due)

mags' (voluntary): present within 14 days beginning with day Prosecution complies/purports to comply with initial duty to disclose

• Applications to extend must be within the 14-day period.

Serving on Co-Defendants

• Court may order that Defence Statement is also served on Co-Defendants of its own volition/on their application

  • ie. where Defence Statement may assist the co-Defendant's case.

Jury seeing the Defence Statement

• s6E – Jury may be shown the Defence Statement if:

  • Judge directs (may direct editing to remove references to inadmissible evidence) of own motion/on application by a party,

  • only if of the opinion that seeing the Defence Statement would:

    • help the Jury to understand the case, or

    • resolve an issue in the case.

Drafting Defence Statement

• When drafting Defence Statement, must ensure:

  • Defendant understands the importance of the accuracy of the statement, and

  • Defendant has opportunity to carefully consider the Defence Statement and approves it.

• Advisable Defence Statement should be signed by Defendant

Updating where Defence Statement Served before Prosecution Disclosure (s6B)

Where Defence Statement served before Prosecution disclosure, Defendant required to provide:

• an updated defence statement, or

• a statement that no update to...