Disclosure

What is the investigator’s duty with regards to disclosure?	To retain any material obtained in a criminal investigation which may be relevant to that investigation. Such material may include: Crime reports; Custody records; Records derived from tapes of telephone messages (e.g. 999 calls) containing descriptions of the alleged offence or offender; Final versions of W/S (and previous drafts if they differ from the final version; Interview records; Communication between police and experts and reports of work carried out by experts; Any material casting doubt on the reliability of the confession; Any material casting doubt on the reliability of a witness; Any other material that would fall within the test for primary prosecution disclosure.
What is the duty on the prosecutor about disclosure?	The prosecution must disclose everything they wish to rely on, such as witness statements. It is the duty of the prosecutor to disclose any unused prosecution material which might reasonably be considered capable of: Undermining the case for the prosecution against the accused; or Of assisting the case for the accused. NB This is an objective test! This may include material that would help the defendant (‘D’) in cross examination, or support arguments that evidence is inadmissible or that proceedings should be stayed, or suggest an explanation of D’s actions.
When must the prosecutor make disclosure?	There is no prescribed time-limit, so disclosure must be done as soon as reasonably practicable. In the Crown Court this is usually at the same time as service of the papers (70days if bailed and 50days if in custody). In Mags’ it is usually required within 28days following pleas.
When does the duty on the prosecutor cease?	It is a continuing duty to disclose this material until either the D is convicted or acquitted or the case is dropped.
What are the duties on the defence in relation to disclosure?	Mags’ Court: D may supply a defence statement. Crown Court: D must supply a defence statement. A defence statement may also be required to be served on co-Ds if the court so orders. NB A defence statement is deemed to be given on behalf of D, and may be shown to the jury. The defence statement must be served within 14days of the prosecution complying with their duty of disclosure.
What is the content of a defence statement?	It should set out: The nature of the defence, including any particular defences he wishes to rely upon; The facts that D takes issue with the prosecution and why; The facts D intends to rely on; Any point of law D wishes to take, and any authority on which D intends to rely for that purpose; and Where the defence is alibi: The name, address and DOB of any witness able to support the alibi; and Any information that may help in identifying such witnesses where details cannot be provided. In addition, D must give notice of witnesses he wishes to call.
What are the consequences if D fails to make disclosure properly?	Where D fails in any of his duties of disclosure, such as: not giving a defence statement when required; Providing a defence statement late; Failing to provide an updated statement or a statement that there are no changes; Provides an updated statement late; Sets out inconsistent defences in the defence statement; Puts forward at trial a defence not included in the defence statement; Relied on a matter at trial that was not mentioned in the defence statement; Adduces evidence of an alibi after failing to give particulars of the alibi; or Calls an alibi witness without giving notice of that witness; The court may direct that adverse inferences may be drawj that appear proper.
On what grounds can the prosecution withhold documents?	Public interest immunity, but only with the permission of the court.
Public Interest Immunity application	Test from R v H: Is there a real risk of serious prejudice to an important public interest if full disclosure ordered? Can D’s interests be protected without disclosure or with partial disclosure? Is this the minimum necessary to protect the public interest? Will this render the whole trial unfair?
What can D do if the prosecution have not disclosed something they want disclosed?	D can make an application to the court for an order requiring the disclosure. The application must be served on the court and the...

#13736 - Disclosure - BPC Criminal Litigation (formerly BPTC) 2024/2025

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