#13787 - Disclosure And Considering Evidence - BPC Criminal Litigation (formerly BPTC) 2024/2025

Disclosure, and Considering Evidence

Disclosure

• Duties, and responsibilities, of parties governed by CPIA 1996.

• The staged approach is:

  • Initial Prosecution Disclosure;

  • Defence Disclosure;

  • Continual Review by P.

Faults in P’s Disclosure

• Failure of P to disclose either under s3 or s7A is not of itself grounds for staying, unless there is such delay it denies D a fair trial.

Faults in D’s DS

• This section applies:

  • If, under s5, D fails to give a defence statement, updating defence statement at all (or within the relevant time), or relies upon a defence/witness/alibi not set out in his defence statement

  • If, under s6, D gives an initial defence statement outside the relevant period, he fails to give an updated statement, gives a witness notice outside the relevant period, or calls a witness not adequately identified

• Any party or the court may comment upon it, and the court or jury may draw such inferences as appear proper when determining whether D is guilty.

• s6E(2) CPIA - Judge can warn the defendant at PCMH or other pre-trial hearing that failure to comply with the relevant provisions may lead to comment being made or adverse inferences being drawn. Similarly, the Disclosure Guidelines states that (para 33) “Prosecutors should challenge the lack of, or inadequate, defence statements in writing, copying the document to the court and the defence and seeking directions from the court to require the provision of an adequate statement from the defence.”

• At the PCMH in the CC the judge will, as a matter of course, scrutinise DS. Where a DS is deficient or where, without good reason, a DS has not been prepared, the judge will often put the case back and will not call it on until the problem is resolved

• Where W hasn’t been adequately identified, or serves Witness Notice late, other parties may only comment upon it with the leave of the court.

• If D puts forward defence different from his DS, when deciding whether to do anything, the court must have regard to the extent of the differences and whether any justification for it.

• Where W hasn’t been adequately identified, or failed to include in the Witness Notice, the court shall have regard to any justification for it.

• Failure to comply with these disclosures is not a criminal offence.

• The jury may be given a copy of the defence statement under s6E(5). This will assist P in XX D over inconsistencies in his DS and trial defences. But relevance depends upon whether inconsistency is marginal or significant!

Disclosure from TP

• Paragraph 56 of the Disclosure Guidelines provides as follows: “There may be cases where the investigator, disclosure officer or prosecutor believes that a third party (for example, a local authority, a social services department, a hospital, a doctor, a school, a provider of forensic services) has material or information which might be relevant to the prosecution case. In such cases, investigators, disclosure officers and prosecutors should take reasonable steps to identify, to the investigator, disclosure officer or prosecutor that (a) such material exists and (b) that it may be relevant to an issue in the case.”

• Where material is requested from a third party but access or disclosure is refused, the prosecution can consider (in the Crown Court) seeking a summons under s2 Criminal Procedure (Attendance of Witnesses) Act 1965 for production of the material, or (in the Magistrates’ Court) under the similar provisions in s97 MCA 1980.

• CrimPR rule 28.5 an application for a summons requiring a witness to produce a document or thing or to give evidence about information apparently held in confidence that relates to another person must be made in writing on a prescribed form. The application must be served on the court, on the proposed witness and, if so directed by the court, the person to whom the evidence relates and another party. No summons can be issued unless everyone served has had at least 14 days to make representations (including as to whether there should be a hearing before the summons is issued) and “the court is satisfied that it has been able to take adequate account of the duties and rights, including rights of confidentiality, of the proposed witness and of any person to whom the proposed evidence relates.”

• From 1st January 2014, in cases of alleged child abuse concerning victims aged 17 and under at the time of the offending, the 2013 Protocol and Good Practice Model on Disclosure of Information in Cases of Alleged Child Abuse and Linked Criminal and Care Directions Hearings (The Child Abuse Protocol) comes into force. It provides a framework and timetable for the police and Crown Prosecution Service to obtain discloseable material from local authorities and for applications to be...