#13786 - Disclosure And Drafting Indictments - BPC Criminal Litigation (formerly BPTC) 2024/2025

(1) Duties of Disclosure

(1) P’s Initial Disclosure

What disclosure?

• Two types of material:

  • Used Material (Used by P - Indictments, Statements, Record of Taped Interview (ROTI)

  • Unused Material (Material not used by P)... Often, this includes custody records which are usually not used, but disclosed as of right if requested.

When?

• Under s.1 CPIA:

  • Mags - P’s duty of disclosure must be satisfied within 28 days of D’s NG plea, and in any event in enough time for D and legal advisors to consider the evidence (para57 Disclosure Guidelines)

  • CC - P’s duty of disclosure of case papers (used material) must be satisfied within 50 days (if D is in custody), or 70 days (D on bail). Usually, JP directs disclosure within 14 days after case is sent. As regards the unused material, s3 states to look at the Regulations, but the Regulations don’t refer to unused material time limits. So, turn back to s13 - P must act as soon as is reasonably practicable.

What?

• s3 CPIA, P must disclose to D all material in P’s possession which has not already been disclosed, which might reasonably be considered capable of:

  • undermining the case for P against D, or

  • assisting the case for D. Thus, this is a low standard!

• The test under s.3 CPIA is an objective one.

• Disclosure Guidelines require when deciding s3 CPIA, prosecutors should consider, inter alia:

  • the use that might be made of the material in XX;

  • its capacity to support submissions that could lead to

    • the exclusion of evidence

    • a stay of proceedings as an abuse of process, where the material is required to allow a proper application to be made;

    • Finding any PA acted incompatibly with D's rights under ECHR;

  • its capacity to suggest an explanation or partial explanation of the accused’s actions;

  • the capacity of the material to have a bearing on scientific or medical evidence in the case (including relating to the defendant’s mental health).

• The Disclosure Guidelines go on to state that it should also be borne in mind that while items of material viewed in isolation may not be reasonably considered to be capable of undermining the prosecution case or assisting the accused, several items together can have that effect.

• Disclosure Code requires all material (including information) which may be relevant to the investigation must be recorded and retained.

• All material which may be relevant to a criminal investigation must be retained at least until a convicted defendant is released from custody (or discharged from hospital) or, in cases which did not result in a custodial sentence or a hospital order, until 6 months from the date of conviction. In cases where an appeal against conviction is in progress all material that may be relevant must be retained until the appeal is concluded.

• Copies must be given to D, or if not practicable/desirable, D to inspect at reasonable time/place.

• No disclosure required in breach of s17 RIPA.

(2) D’s Defence Statement

Summary Trial

• s6 - When P complies with s3 or purports to comply with it, D may then make a Defence Statement and (if he does so) must file with Court, and serve on P.

Trial on Indictment

• s5 - When P complies with s3 or purports to comply with it, D must then make a Defence Statement and file with Court, and serve on P.

  • Within 28 days of P’s first disclosure.

What is a Defence Statement?

• s6A defines it as:

  • Setting out nature of D’s defence (setting out particular defences);

  • Facts in issue with P and reasons why;

  • Facts on which he relies for his defence;

  • Indicating any point of law relied upon.

  • If it contains an alibi, it must outline the name, address, DoB of any W, and disclose any information likely to be of “material assistance” in identifying such witnesses.

    • “Evidence in support of an alibi” means that because D is in a particular place/area at the relevant time, he couldn’t have committed the offence. This does not include:

      1. Where offence is continuing one, and only contradicting P’s evidence, that he was there part not all of the time;

      2. Evidence indicating D was not present at the crime, but with no evidence where he was;

      3. D’s whereabouts other than at the time of the offence;

      4. Where the offence took place on a Wednesday, and D said he always goes to the gym on wednesdays.

• No requirement it be signed by D (no power to require in PD), but judge may satisfy himself that D is fully complied with his duties.

• If D puts forward no positive defence, then he must simply say he doesn’t admit it, but requires that it be proved by D.

• s6C - D must give to the court and prosecutor a notice indicating whether he intends to call any W. He must give name, address, DoB and any info of “material assistance” in identifying and finding them. He doesn’t have to rename any listed in the defence statement. This must be done during the relevant period. He must keep this updated if anything changes - appropriately amended notice. This applies equally to both summary and indictment trials

When to Serve?.

• 14 days after P’s disclosure - Summary Trial

• 28 days after P’s disclosure - Indictment

• (Unless extended by the Court)

  • s6B - If D gives in a defence statement before the relevant time, then he must either give in an updating defence statement or a written statement saying he has no changes during the relevant time.

P’s Continuing Disclosure

• After P has purported to comply with s3 disclosure, he must keep under review whether there is any material capable of undermining the case for P against D, or of assisting D’s case, and must disclose it to D.

• If further disclosure is necessary as a result of things mentioned in the Defence Statement, P must disclose it within the “relevant period”.

• This includes a duty to disclose D1’s defence statement to D2, if it might reasonably be considered to help D2’s defence.

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.

• If D wants an order of disclosure for P, of material that D has “reasonable cause to believe” P has, D must serve that application on Court and P. No order may be made unless P is present in court, or has 14 days to make representations.

Faults in D’s Disclosure

• If D fails to give DS, updating DS, or relies upon a defence/witness/alibi not set out in DS, or does so outside the relevant period, any party or the court may comment upon it, and the court/jury may draw such inferences as appear proper when determining D’s guilt (s5-6). P’s Disclosure guidelines require P always challenges lack or, or inadequate, DS.

Indictments

What is an indictment?

• A jury can only try one indictment.

• An indictment can only contain EW/IO offences, but summary in rare occasions.

When to Prefer Indictment?

• r14.1 - P must serve (“prefer”) a draft indictment (“Bill of Indictment”) on CC officer not more than 28 days after case is sent to CC for trial, from HC judge giving permission to serve draft indictment (“Voluntary Bill” - This is when an indictment is quashed in CC on D’s application) or CA ordering retrial.

• After it is preferred, CC Officer must sign it and serve a copy on all parties. When preferred it becomes a formal indictment per s2 AOJA 1933. NB: Due to the amended Act, lack of a signature will not invalidate an indictment, but good practice requires it. Today, it is “preferring” which makes it a valid indictment, not signature as it used to be. But required in PD!

• Once served (“preferred”) it becomes a formal indictment.

• This 28 day limit can be extended even after it has expired.

What goes in the indictment?

• r14.2 requires each count to contain:

  1. Statement of Offence - The name of the offence, the statute

  2. Particulars of the Offence (the conduct constituting the offence)

• Charges should be tried separately where D would be "prejudiced or embarrassed" in his defence per s5(3) IA 1915. Otherwise, the counts would amount to bad character for the others.

• Further, unduly long, complex indictments should be avoided where difficult for jury to follow.

Joinder of Multiple Offenders

• R v Assim - Where the offences are so related, by time or other factors, that it is in the interests of justice that they are tried together, subject always to Court’s discretion be tried together.

• They would thereby be charged jointly and severally. Though they may be tried on separate counts too! EG: Joint assault on V.

• An order for separate trials may be made before, or at any stage of the trial per s5(3).

• Where D1’s defence is an attack on D2, it is judicial discretion whether this means D2 is sufficiently prejudiced or embarrassed that separate trials are appropriate - Grondkowski & Malinowski.

• “Cut throat” defences are rarely successful grounds, alone, for severance! Even when this leads to D’s bad character being admissible, and other prejudicial evidence against him.

• But where D1 is charged with assaulting V, and D2 is charged with assaulting D1, if a joint trial were to take place, if either D1, or D2 gave evidence in own defence, P could XX him to bring out evidence against the other defendant rather than adduce in EiC. Thus, this should be separate trials, as it would enable counsel for P to cross examine each D about the other.

Joining Counts

• r14.2(3) - indictments may contain more than one count if the counts are:

  • Founded on the same facts (usually alternatives: eg s20, and s18 OAPA)

  • Part of a series of offences of the same...