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Disclosure of Evidence: Criminal Procedure and Investigations Act 1996 and Code of Practice 

Disclosure of Evidence: Criminal Procedure and Investigations Act 1996 and Code of Practice
Chapter:
Disclosure of Evidence: Criminal Procedure and Investigations Act 1996 and Code of Practice
Author(s):

David Johnston

and Glenn Hutton

DOI:
10.1093/law/9780198806110.003.0007
Page of

Subscriber: null; date: 15 August 2018

A thick grey line down the margin denotes text that is an extract of the Code itself (i.e. the actual wording of the legislation). This material is examinable for both Sergeants and Inspectors.

2.7.1 Introduction

Disclosure can be grouped under two main areas: the material the prosecution will use in court to prove the case against the defendant, and all other material not forming part of the prosecution case which might have a bearing on the decision the court makes.

The Criminal Procedure and Investigations Act 1996 (the 1996 Act) is made up of seven parts. It is the first two parts which are of interest to the police:

  • part I sets out the procedures for disclosure and the effects of failing to comply with the Act; and

  • part II sets out the duties of police officers in relation to the disclosure provisions.

The 1996 Act introduced a Code of Practice which sets out the manner in which police officers are to record, retain and reveal to the prosecutor material obtained in a criminal investigation and which may be relevant to the investigation, and related matters. The Code assumes that the defence have already been informed of the details of the prosecution case and is included within this chapter. In addition to the Code of Practice this chapter also makes reference to the Attorney-General’s Guidelines on Disclosure for Investigators, Prosecutors and Defence Practitioners (referred to in this chapter as the A-G’s Guidelines); as well as the CPS Disclosure Manual.

2.7.2 Failure to Comply

Compliance with the rules of disclosure, by both the defence and prosecution, is essential if the 1996 Act is to have any real value. First, in cases where the defence are obliged to make disclosure to the prosecution, failure to do so may lead to the court or jury drawing such inferences as appear proper in deciding the guilt or innocence of the accused (s. 11(5) of the 1996 Act). Should the prosecution fail to comply with their obligations then an accused does not have to make defence disclosure and no such inference can be made. Secondly, failure by the prosecution to comply with the rules could lead to the court staying the proceedings on the grounds that there has been an abuse of process (s. 10). It could also lead to an action for damages or such other relief as the court sees fit under the Human Rights Act 1998, particularly in relation to Article 6 of the European Convention on Human Rights and the right to a fair trial. Additionally, where the prosecution have not made disclosure on time or fully, a stay on the proceedings or a further adjournment is possible. Even if there has been a failure to comply with disclosure the case will not automatically be stayed and therefore any failings should be brought to the attention of the CPS so that the matter can be considered. In R (On the Application of Ebrahim) v Feltham Magistrates’ Court [2001] EWHC Admin 130 the court stated that:

It must be remembered that it is commonplace in a criminal trial for the defendant to rely on holes in the prosecution case. If in such a case, there is sufficient credible evidence, apart from the missing evidence, which, if believed, would justify safe conviction then the trial should proceed, leaving the defendant to seek to persuade the jury or magistrates not to convict because evidence that might otherwise have been available was not before the court through no fault of the defendant.

Further guidance was provided in R v Brooks [2004] EWCA Crim 3537, a case where the prosecution failed to comply with the disclosure requirements. The Court of Appeal held that if the court was satisfied that the prosecution had deliberately withheld evidence from the court or frustrated the defence, the court did have the power to stay the prosecution. If the court was not so satisfied it would consider whether, despite all that had gone wrong, a fair trial was possible.

Failure to disclose may result in convictions being overturned; for instance in R v Poole [2003] EWCA Crim 1753, the Court of Appeal overturned convictions for murder because the non-disclosure of prosecution evidence influenced the jury’s assessment of the reliability of the evidence of a key eye-witness. In this case the witness gave an account that was false in a material particular. However, the police did not follow up those inconsistencies and they failed to inform the CPS that his evidence was unreliable.

The level of disclosure that is required will be a question of fact in each case. In Filmer v DPP [2006] EWHC 3450 (Admin) the court held that the extent of disclosure required from the prosecution depends on the evidence and issue in a particular case. The prosecution are required to provide sufficient disclosure to enable a defendant to present his/her case. The court went on to say that this has to be the approach otherwise the prosecution would have to second guess every question the defence may want to ask (this is where the defence disclosure becomes relevant, see para. 2.7.11.1).

2.7.3 Disclosing Initial Details of the Prosecution Case

This refers to the material that the defence are entitled to have in order to consider whether to plead guilty or not guilty. In some cases, it is not a question of whether the defendant committed the crime but whether the prosecution are in a position to prove the offence and, in order to consider this, the defence are unlikely to agree to plead or decide on the mode of trial without knowing the strength of the prosecution case. It is clearly in the public interest that guilty pleas are entered or indicated as soon as possible (R v Calderdale Magistrates’ Court, ex parte Donahue [2001] Crim LR 141) and often this cannot be achieved unless advanced information has been provided. The need to know as early as possible whether a defendant is going to plead not guilty can be particularly important as there are time limits by which the courts have to set trials and committals. Often these can be delayed because the prosecution have not complied with their disclosure duties.

Ensuring that all defendants receive copies of any advanced information (or any later disclosure) is also important. In R v Tompkins [2005] EWCA Crim 3035 the court held that where there has been non-disclosure at the time a plea had been entered, a defendant who had pleaded guilty should not in any way be in a worse position than a defendant who had pleaded not guilty.

2.7.3.1 Obligations on Prosecution Regarding Disclosing the Initial Details of the Prosecution Case

In the magistrates’ court, Part 8 of the Criminal Procedure Rules 2015 provides that where the offence is one that can be tried in a magistrates’ court the prosecutor must provide initial details of the prosecution case to the court and the defendant as soon as practicable, and in any event no later than the beginning of the day of the first hearing. These initial details must include (r. 8.3):

  1. (a) where, immediately before the first hearing in the magistrates’ court, the defendant was in police custody for the offence charged—

    1. (i) a summary of the circumstances of the offence, and

    2. (ii) the defendant’s criminal record, if any;

  2. (b) where paragraph (a) does not apply—

    1. (i) a summary of the circumstances of the offence,

    2. (ii) any account given by the defendant in interview, whether contained in that summary or in another document,

    3. (iii) any written witness statement or exhibit that the prosecutor then has available and considers material to plea, or to the allocation of the case for trial, or to sentence,

    4. (iv) the defendant’s criminal record, if any, and

    5. (v) any available statement of the effect of the offence on a victim, a victim’s family or others.

For trials at the Crown Court, the defence will receive the majority of the prosecution case through the disclosure of witness statements or depositions. If the prosecution wish to use any additional evidence after committal they must serve this on the defence.

It is suggested that Article 6 of the European Convention on Human Rights supports the need to provide advanced information to the defence and that this should be done as soon as possible. Article 6(3)(a) states that a person is:

. . . to be informed promptly . . . and in detail, of the nature and cause of the accusation against him;

Article 6(3)(b) states that an accused is entitled to:

. . . have adequate time . . . for the preparation of his defence.

The point concerning initial information in summary cases was considered in R v Stratford Justices, ex parte Imbert [1999] 2 Cr App R 276, where the court gave its opinion that Article 6 does not give an absolute right to pre-trial disclosure; it will be a question of whether the defendant can have a fair trial. Clearly, it will be easier to satisfy this test where initial information has been provided to the defence. This information might also include the following and so consideration should be had to providing this material to the prosecutor so that he/she can forward it to the defence where appropriate (ensuring that the addresses and other details of witnesses and victims are protected):

  • a copy of the custody record;

  • copies of any interview tape(s);

  • a copy of any first descriptions where relevant;

  • significant information that might affect a bail decision or enable the defence to contest the allocation hearing (A-G’s Guidelines, para. 14);

  • any material which is relevant to sentence (e.g. information which might mitigate the seriousness of the offence or assist the accused to lay blame in whole or in part upon a co-accused or another person);

  • statements and/or a summary of the prosecution cases;

  • a copy of any video evidence.

Where a person has made several statements but all the relevant evidence for the prosecution case is contained in one statement, it is only that one statement which needs to be disclosed. In order to comply with advanced information the defence need to be either given a copy of the document or allowed to inspect the document (or a copy of it). In R v Lane and Lane [2011] EWCA Crim 2745 one of the witnesses refused to put incriminating evidence into his statement due to fear of repercussions. The police had notified the prosecution of the witness’s increased knowledge, but the prosecution failed to notify the defence that the statement had been a partial account. The Court of Appeal held that the statement was untruthful as it did not disclose all the information that it should have done. The witness should have been told to make a full statement or he should have been abandoned as a witness, but he should never have been allowed to make a partial statement.

2.7.4 Disclosure Code of Practice—1 Introduction

The following sections set out the Disclosure Code of Practice issued under the Criminal Procedure and Investigations Act 1996; the latest Code came into effect on 19 March 2015.

2.7.4.1

Disclosure Code of Practice—1 Introduction

1.1 This Code of Practice applies in respect of criminal investigations conducted by police officers which begin on or after the day on which this Code comes into effect. Persons other than police officers who are charged with the duty of conducting an investigation as defined in the Act are to have regard to the relevant provisions of the Code, and should take these into account in applying their own operating procedures.

1.2 This Code does not apply to persons who are not charged with the duty of conducting an investigation as defined in the Act.

1.3 Nothing in this Code applies to material intercepted in obedience to a warrant issued under section 2 of the Interception of Communications Act 1985 or section 5 of the Regulation of Investigatory Powers Act 2000, or to any copy of that material as defined in section 10 of the 1985 Act or section 15 of the 2000 Act.

1.4 This Code extends only to England and Wales.

2.7.4.2

Keynote

Aims of the 1996 Act

The aim of the disclosure rules within the Criminal Procedure and Investigations Act 1996 is to make sure that a defendant gets a fair trial and speeds up the whole trial process. This was confirmed by R v Stratford Justices, ex parte Imbert [1999] 2 Cr App R 276, where the court said that the legislation was to try to ensure that nothing which might assist the defence was kept from the accused.

The Act creates an initial duty on the prosecution to disclose with a continuing duty to disclose until the accused is acquitted or convicted or the prosecutor decides not to proceed with the case.

The prosecution must, from the start, consider any material that might undermine the prosecution case or assist the defence (s. 3 of the 1996 Act). It is submitted that this requires the prosecution to consider in more detail the types of defence that might be used at trial. Once the prosecution have provided their initial disclosure the defence in some cases are obliged to provide a defence statement and in other cases this is optional (see para. 2.7.11.1). Once the defence have provided their defence statement it may provide greater focus to the prosecution as to what other unused material may need to be disclosed.

While the duty of disclosure is placed on the prosecutor, the police have a responsibility to assist in this process. It is therefore vital that police officers understand, not only the statutory requirements made of them, but also the extent of their role within the whole disclosure process.

2.7.5

Disclosure Code of Practice—2 Definitions

2.1 In this Code:

  • a criminal investigation is an investigation conducted by police officers with a view to it being ascertained whether a person should be charged with an offence, or whether a person charged with an offence is guilty of it. This will include:

    • investigations into crimes that have been committed;

    • investigations whose purpose is to ascertain whether a crime has been committed, with a view to the possible institution of criminal proceedings; and

    • investigations which begin in the belief that a crime may be committed, for example when the police keep premises or individuals under observation for a period of time, with a view to the possible institution of criminal proceedings;

  • charging a person with an offence includes prosecution by way of summons or postal requisition;

  • an investigator is any police officer involved in the conduct of a criminal investigation. All investigators have a responsibility for carrying out the duties imposed on them under this Code, including in particular recording information, and retaining records of information and other material;

  • the officer in charge of an investigation is the police officer responsible for directing a criminal investigation. He is also responsible for ensuring that proper procedures are in place for recording information, and retaining records of information and other material, in the investigation;

  • the disclosure officer is the person responsible for examining material retained by the police during the investigation; revealing material to the prosecutor during the investigation and any criminal proceedings resulting from it, and certifying that he has done this; and disclosing material to the accused at the request of the prosecutor;

  • the prosecutor is the authority responsible for the conduct, on behalf of the Crown, of criminal proceedings resulting from a specific criminal investigation;

  • material is material of any kind, including information and objects, which is obtained in the course of a criminal investigation and which may be relevant to the investigation. This includes not only material coming into the possession of the investigator (such as documents seized in the course of searching premises) but also material generated by him (such as interview records);

  • material may be relevant to an investigation if it appears to an investigator, or to the officer in charge of an investigation, or to the disclosure officer, that it has some bearing on any offence under investigation or any person being investigated, or on the surrounding circumstances of the case, unless it is incapable of having any impact on the case;

  • sensitive material is material, the disclosure of which, the disclosure officer believes, would give rise to a real risk of serious prejudice to an important public interest;

  • references to prosecution disclosure are to the duty of the prosecutor under sections 3 and 7A of the Act to disclose material which is in his possession or which he has inspected in pursuance of this Code, and which might reasonably be considered capable of undermining the case against the accused, or of assisting the case for the accused;

  • references to the disclosure of material to a person accused of an offence include references to the disclosure of material to his legal representative;

  • references to police officers and to the chief officer of police include those employed in a police force as defined in section 3(3) of the Prosecution of Offences Act 1985.

2.7.5.1

Keynote

Criminal Investigation

Section 1 of the Criminal Procedure and Investigations Act 1996 defines in which type of cases the disclosure provisions apply. In reality, this applies to all cases other than those where the defendant pleads guilty at the magistrates’ court. These rules only apply where no criminal investigation into the alleged offence took place before 1 April 1997. If an investigation began before 1 April 1997, then it will be necessary to refer to the common law rules; however, ACPO has stated that the 1996 Act should be followed in all cases when considering disclosure. For those investigations that started after 4 April 2005, the amendments introduced by the Criminal Justice Act 2003 will apply.

Some guidance is given by the case of R v Uxbridge Magistrates’ Court, ex parte Patel (2000) 164 JP 209, as to the time an investigation begins. There it was said that the phrase ‘criminal investigation’ in s. 1(3) of the 1996 Act means that a criminal investigation could begin into an offence before it was committed. This could be so in a surveillance case or where a series of offences was committed, some before and some after the appointed day. Whether in any given case that was the correct view would be a question of fact for the court to determine.

Section 1 also defines a criminal investigation and states:

  1. (4) For the purposes of this section a criminal investigation is an investigation which police officers or other persons have a duty to conduct with a view to it being ascertained—

    1. (a) whether a person should be charged with an offence, or

    2. (b) whether a person charged with an offence is guilty of it.

Consequently, this part of the Act also applies to other people, besides the police, who carry out investigations where they have a duty to ascertain whether criminal offences have been committed (e.g. National Crime Agency, HM Revenue and Customs, Department of Work and Pensions investigators). It does not apply to those whose primary responsibility does not relate to criminal offences (e.g. local authorities and schools).

2.7.5.2

Keynote

Disclosure Officer

A disclosure officer can be a police officer or civilian. If not appointed at the start of an investigation, a disclosure officer must be appointed in sufficient time to be able to prepare the unused material schedules for inclusion in the full file submitted to the CPS (CPS Disclosure Manual, paras 3.10 and 3.11).

2.7.5.3

Keynote

Prosecutor

This role is defined by s. 2(3) of the 1996 Act as being ‘any person acting as prosecutor whether an individual or a body’. In other words, the person who will be taking the case to court. On most occasions, this will be the CPS. It would also apply to the Serious Fraud Office or the Data Protection Registrar. In the case of private prosecutions, the prosecutor is obliged to comply with the disclosure provisions of the 1996 Act but does not have to comply with the Code of Practice. The prosecutor is responsible for ensuring that initial disclosure is made to the defence as well as any further disclosure as required under the continuing duty to disclose. The prosecutor should also be available to advise the OIC, disclosure officer and investigators on matters relating to the relevance of material recorded and retained by police, sensitive material and any other disclosure issues that might arise.

Should there need to be an application to the court to withhold material because of public interest (see para. 2.7.9.3), this will be done through the prosecutor.

A more detailed explanation of the roles and responsibilities of the prosecutor are set out in the CPS Disclosure Manual.

2.7.5.4

Keynote

Relevant Material

The material will be relevant whether or not it is beneficial to the prosecution case, weakens the prosecution case or assists the defence case. It is not only material that will become ‘evidence’ in the case that should be considered; any information, record or thing which may have a bearing on the case can be material for the purposes of disclosure. The way in which evidence has been obtained may in itself be relevant.

What is relevant to the offence is once again a question of fact, and will not include everything. In DPP v Metten (1999) 22 January, unreported, it was claimed that the constables who had arrested the defendant had known the identities of potential witnesses to the arrest and these had not been disclosed. The court said that this was not relevant to the case as it did not fall within the definition of an investigation in s. 2(1) of the 1996 Act in that it concerned the time of arrest, and not what happened at the time the offence was committed. Paragraphs 5.4 and 5.5 of the Code give guidance on items that might be considered to be relevant material in a case.

Relevant material may relate to the credibility of witnesses, such as previous convictions, the fact that they have a grudge against the defendant, or where a witness is subsequently shown to be unreliable (R v Dunn [2016] EWCA Crim 1392). It might even include the weather conditions for the day if relevant to the issue of identification. It may include information that house-to-house inquiries were made and that no one witnessed anything.

Particularly at the early stages of an investigation (sometimes not until the defence statement is provided outlining the defence case), it may not be possible to know whether material is relevant. If in doubt, it should be recorded and placed on the schedule of undisclosed material. Throughout the case, investigators and all others involved should continually review the material in the light of the investigation.

Material includes information given orally. Where relevant material is not recorded in any way, it will need to be reduced into a suitable form (CPS Disclosure Manual, para. 5.9).

2.7.6

Disclosure Code of Practice—3 General Responsibilities

3.1 The functions of the investigator, the officer in charge of an investigation and the disclosure officer are separate. Whether they are undertaken by one, two or more persons will depend on the complexity of the case and the administrative arrangements within each police force. Where they are undertaken by more than one person, close consultation between them is essential to the effective performance of the duties imposed by this Code.

3.2 In any criminal investigation, one or more deputy disclosure officers may be appointed to assist the disclosure officer, and a deputy disclosure officer may perform any function of a disclosure officer as defined in paragraph 2.1.

3.3 The chief officer of police for each police force is responsible for putting in place arrangements to ensure that in every investigation the identity of the officer in charge of an investigation and the disclosure officer is recorded. The chief officer of police for each police force shall ensure that disclosure officers and deputy disclosure officers have sufficient skills and authority, commensurate with the complexity of the investigation, to discharge their functions effectively. An individual must not be appointed as disclosure officer, or continue in that role, if that is likely to result in a conflict of interest, for instance, if the disclosure officer is the victim of the alleged crime which is the subject of the investigation. The advice of a more senior officer must always be sought if there is doubt as to whether a conflict of interest precludes an individual acting as disclosure officer. If thereafter the doubt remains, the advice of a prosecutor should be sought.

3.4 The officer in charge of an investigation may delegate tasks to another investigator, to civilians employed by the police force, or to other persons participating in the investigation under arrangements for joint investigations, but he remains responsible for ensuring that these have been carried out and for accounting for any general policies followed in the investigation. In particular, it is an essential part of his duties to ensure that all material which may be relevant to an investigation is retained, and either made available to the disclosure officer or (in exceptional circumstances) revealed directly to the prosecutor.

3.5 In conducting an investigation, the investigator should pursue all reasonable lines of inquiry, whether these point towards or away from the suspect. What is reasonable in each case will depend on the particular circumstances. For example, where material is held on computer, it is a matter for the investigator to decide which material on the computer it is reasonable to inquire into, and in what manner.

3.6 If the officer in charge of an investigation believes that other persons may be in possession of material that may be relevant to the investigation, and if this has not been obtained under paragraph 3.5 above, he should ask the disclosure officer to inform them of the existence of the investigation and to invite them to retain the material in case they receive a request for its disclosure. The disclosure officer should inform the prosecutor that they may have such material. However, the officer in charge of an investigation is not required to make speculative enquiries of other persons; there must be some reason to believe that they may have relevant material. That reason may come from information provided to the police by the accused or from other inquiries made or from some other source.

3.7 If, during a criminal investigation, the officer in charge of an investigation or disclosure officer for any reason no longer has responsibility for the functions falling to him, either his supervisor or the police officer in charge of criminal investigations for the police force concerned must assign someone else to assume that responsibility. That person’s identity must be recorded, as with those initially responsible for these functions in each investigation.

2.7.6.1

Keynote

General Responsibility of the Disclosure Officer

The disclosure officer creates the link between the investigation team and the prosecutor (CPS) and is therefore very important to the disclosure process. For investigations carried out by the police, generally speaking there is no restriction on who performs this role; however, they must be suitably trained and experienced. The role and responsibility of the disclosure officer is set out in the CPS Disclosure Manual at para. 3.9:

  • examine, inspect, view or listen to all relevant material that has been retained by the investigator and that does not form part of the prosecution case

  • create schedules that fully describe the material

  • identify all material which satisfies the disclosure test using the MG6E

  • submit the schedules and copies of disclosable material to the prosecutor

  • at the same time, supply to the prosecutor a copy of material falling into any of the categories described in paragraph 7.3 of the Code and copies of all documents required to be routinely revealed and which have not previously been revealed to the prosecutor

  • consult with and allow the prosecutor to inspect the retained material

  • review the schedules and the retained material continually, particularly after the defence statement has been received, identify to the prosecutor material that satisfies the disclosure test using the MG6E and supply a copy of any such material not already provided

  • schedule and reveal to the prosecutor any relevant additional unused material pursuant to the continuing duty of disclosure

  • certify that all retained material has been revealed to the prosecutor in accordance with the Code

  • where the prosecutor requests the disclosure officer to disclose any material to the accused, give the accused a copy of the material or allow the accused to inspect it.

2.7.6.2

Keynote

Reasonable Lines of Inquiry

An officer who is classed as an investigator must pursue all reasonable lines of inquiry (Code, para. 3.5) and having done so retain all material which is relevant to the case (see para. 2.7.8.1), whether or not it is helpful to the prosecution (Code, para. 5.1). Failure to do so could lead to a miscarriage of justice. In R v Poole [2003] EWCA Crim 1753, Y provided a statement to police in a murder case. It transpired that N had been with Y at the relevant time and this cast doubt over Y’s evidence. The police did not follow up the inconsistencies. The Court of Appeal held that the failure to disclose N’s evidence was a material irregularity which in part led to a successful appeal by the defendant. The investigator also has a responsibility to identify material that could be sensitive and bring this to the attention of the CPS. This need to be proactive was reinforced in R v Joof [2012] EWCA Crim 1475 where the court held that the responsibilities imposed by the Criminal Procedure and Investigations Act 1996 and the A-G’s Guidelines could not be circumvented by not making inquiries. An officer who believed that a person might have information which might undermine the prosecution case or assist the defence could not decline to make inquiries in order to avoid the need to disclose what might be said. Where material is identified steps must be taken to record and retain the material. For information recorded on computers, see ‘Digital Guidance’, chapter 30 of the CPS Disclosure Manual and Annex A to the A-G’s Guidelines.

2.7.6.3

Keynote

Material that Undermines the Prosecution Case

There is only limited case law in this area but it is likely that such material will consist mainly of material which raises question marks over the strength of the prosecution case, the value of evidence given by witnesses and issues relating to identification. If officers feel that the material is not relevant to the prosecution case but may be useful to the defence in cross-examination, it may well come within the category of material which undermines the prosecution case. In Tucker v CPS [2008] EWCA Crim 3063, the prosecution did not reveal to the defence a record containing important information as to a possible motive for a witness lying about the defendant’s involvement in the offence. This led to the conviction being overturned. It was clearly material that undermined the prosecution case as it raised questions over the value of the witness’s evidence.

Disclosure of previous convictions and other matters that might affect the credibility of a witness may ‘undermine the prosecution case’ as it may limit the value of the witness’s testimony. This factor may not be apparent at the time but may come to light after the initial disclosure, such as where it becomes known that the witness has a grudge against the defendant. This is one reason why the 1996 Act requires the decision as to whether material undermines the prosecution case to be continuously monitored throughout the case.

In R (On the Application of Ebrahim) v Feltham Magistrates’ Court [2001] EWHC Admin 130 the court stated that the extent of the investigation should be proportionate to the seriousness of the matter being investigated. What is reasonable in a case may well depend on such factors as the staff and resources available, the seriousness of the case, the strength of evidence against the suspect and the nature of the line of inquiry to be pursued. If in doubt it is suggested that the CPS is contacted for guidance.

Paragraph 5.16 of the CPS Disclosure Manual makes important observations concerning negative results: when making inquiries, ‘negative results can sometimes be as significant to an investigation as positive ones’. It is impossible to define precisely when a negative result may be significant, as every case is different. However, it will include the result of any inquiry that differs from what might be expected, given the prevailing circumstances. Not only must material or information which points towards a fact or an individual be retained, but also that which casts doubt on the suspect’s guilt, or implicates another person. Examples of negative information include:

  • a CCTV camera that did not record the crime/location/suspect in a manner which is consistent with the prosecution case (the fact that a CCTV camera did not function or have videotape loaded will not usually be considered relevant negative information);

  • where a number of people present at a particular location at the particular time that an offence is alleged to have taken place state that they saw nothing unusual;

  • where a finger-mark from a crime scene cannot be identified as belonging to a known suspect;

  • any other failure to match a crime scene sample with one taken from the accused.

2.7.6.4

Keynote

Complaints against Police Officers Involved in a Case

Not only might the credibility of witnesses undermine the prosecution case, but so too might complaints against officers involved in the case, together with any occasions where officers have not been believed in court in the past. In these cases, it will be necessary to decide whether this information should be disclosed to the defence and, if disclosed, in how much detail. This question is probably best answered by the following extract from advice given to prosecutors by the DPP:

It is, of course, necessary in the first instance for the police to bring such matters to the notice of the prosecutor, but it is submitted that the prosecutor should have a greater element of discretion than with the disclosure of previous convictions. With convictions against prosecution witnesses, disclosure normally follows, whereas in relation to disciplinary findings regard should be had to the nature of the finding and its likely relevance to the matters in issue. Findings which involve some element of dishonesty should invariably be disclosed, while matters such as disobedience to orders, neglect of duty and discreditable conduct will often have no relevance to the officer’s veracity or the guilt or otherwise of a defendant. Certainly, there should be no duty on the prosecution to disclose details of unsubstantiated complaints even though this is a popular type of inquiry from some defence representatives. The imposition of such a duty would only encourage the making of false complaints in the hope that they might be used to discredit an officer in the future.

Whether a misconduct finding should be disclosed is a value judgement. The responsibility for that value judgement sits with Professional Standards Departments (PSDs), although the final responsibility to reveal relevant misconduct findings or criminal convictions/cautions rests with the police officer concerned, who will be aware of the issues in the case in which he/she is a witness. PSDs must seek to achieve consistency and balance in the exercise of their responsibility to provide advice and guidance to police officers in these matters. PSDs should always be ready to seek the advice of the CPS in appropriate cases (CPS Disclosure Manual, paras 18.16 and 18.17).

Some guidance is given by the courts. In R v Edwards [1991] 1 WLR 207 the court held that a disciplinary finding and reprimand of a DCI for countersigning interview notes which had been wrongly re-written in another case should have been disclosed to the defence. R v Guney [1998] 2 Cr App R 242 followed Edwards. In Guney six police officers went to the defendant’s home with a warrant to search for drugs. Three of the officers had formerly been members of a squad which had been subject to ‘considerable internal police interest’. The court held that the defence were not entitled to be informed of every occasion when any officer had given evidence ‘unsuccessfully’ or whenever allegations were made against him/her. In this case, the information should have been disclosed. The court went on to say that the records available to the CPS should include transcripts of any decisions of the Court of Appeal Criminal Division where convictions were quashed because of the misconduct or lack of veracity of identified police officers as well as cases stopped by the trial judge or discontinued on the same basis. The systematic collection of such material was preferable to the existing haphazard arrangement.

If in doubt advice should be sought from the CPS.

2.7.6.5

Keynote

Third Party Material

Third party material can be considered in two categories:

  1. (a) that which is or has been in the possession of the police or which has been inspected by the police;

  2. (b) all other material not falling under (a).

Material which falls into the first category is covered by the same rules of disclosure as any other material the police have. Where police do not have material that they believe may be relevant to the case, para. 3.6 of the Code provides direction.

In the vast majority of cases the third party will make the material available to the investigating officer. However, there may be occasions where the third party refuses to hand over the material and/or allow it to be examined.

If the OIC, the investigator or the disclosure officer believes that a third party holds material that may be relevant to the investigation, that person or body should be told of the investigation. They should be alerted to the need to preserve relevant material. Consideration should be given as to whether it is appropriate to seek access to the material and, if so, steps should be taken to obtain such material. It will be important to do so if the material or information is likely to undermine the prosecution case, or to assist a known defence. A letter should be sent to the third party together with the explanatory leaflet; a specimen of such a letter is provided in the CPS Disclosure Manual, Annex B, at B1.

Where access to the material is declined or refused by the third party and it is believed that it is reasonable to seek production of the material before a suspect is charged, the investigator should consider making an application under sch. 1 to the Police and Criminal Evidence Act 1984 (special procedure material) (CPS Disclosure Manual, para. 4.17).

Where the suspect has been charged and the third party refuses to produce the material, application will have to be made to the court for a witness summons. In the magistrates’ court this is covered by s. 97 of the Magistrates’ Courts Act 1980 and in the Crown Court it is covered by ss. 2(2) and 2A to 2D of the Criminal Procedure (Attendance of Witnesses) Act 1965. The third party may still wish to resist the requirement to produce the material and the point was considered in R v Brushett [2001] Crim LR 471 (this was a case that concerned Social Services Department files relating to a children’s home). The court considered a number of earlier cases and established some central principles as follows:

  • To be material evidence documents must be not only relevant to the issues arising in the criminal proceedings, but also documents admissible as such in evidence.

  • Documents which are desired merely for the purpose of possible cross-examination are not admissible in evidence and, thus, are not material for the purposes of s. 97.

  • Whoever seeks production of documents must satisfy the justices with some evidence that the documents are ‘likely to be material’ in the sense indicated, likelihood for this purpose involving a real possibility, although not necessarily a probability.

  • It is not sufficient that the applicant merely wants to find out whether or not the third party has such material documents. This procedure must not be used as a disguised attempt to obtain discovery.

  • Where social services documents are supplied to the prosecution, the prosecution should retain control of such material as part of the disclosure regime. That is envisaged by the rules. It cannot be acceptable to return material to social services to avoid the obligations arising under the rules. In any event, the obligation would arise in relation to the notes taken and retained.

  • The obligation laid on the prosecution by statute and rules cannot be avoided by a third party making an agreement with the prosecution that the prosecution will abrogate any duties laid upon it by either common law or statute.

  • If circumstances arise where it would be unjust not to allow disclosure of certain other material, so a defendant would not receive a fair trial in the sense that he/she could not establish his innocence where he/she might otherwise do so, then that material must be disclosed.

  • The fact that the prosecution have knowledge of the third party material may be a relevant factor to allow the defence access.

  • Material concerning false allegations in the past may be relevant material (R v Bourimech [2002] EWCA Crim 2089).

  • If the disputed material might prove the defendant’s innocence or avoid a miscarriage of justice, the weight came down resoundingly in favour of disclosing it (R v Reading Justices, ex parte Berkshire County Council (1996) 1 Cr App R 239).

In R v Alibhai [2004] EWCA Crim 681 the Court of Appeal held that under the Criminal Procedure and Investigations Act 1996 the prosecutor was only under a duty to disclose material in the hands of third parties if that material had come into the prosecutor’s hands and the prosecutor was of the opinion that such material undermined the case. However, the A-G’s Guidelines went further by requiring a prosecutor to take steps pursuing third party disclosure if there was a suspicion that documents would be detrimental to the prosecution or of assistance to the defence. However, in such circumstances, the prosecutor enjoyed a margin of consideration as to what steps were appropriate. The provisions for disclosure are not intended to create duties for third parties to follow. The disclosure duties under the 1996 Act were created in respect of material that the prosecution or the police had and which the prosecution had inspected. Material was not prosecution material unless it was held by the investigator or by the disclosure officer (DPP v Wood and McGillicuddy [2006] EWHC 32 (Admin)).

The A-G’s Guidelines also deal with materials held by third parties (including government agencies) in paras 53 to 58. Paragraphs 53 to 55 deal with material held by government departments or other Crown bodies and suggest that reasonable steps should be taken to identify and consider material that may be relevant to an issue in the case. Paragraph 56 examines the circumstances in which the prosecution should take steps to obtain access to material or information in the possession of other third parties. In such cases, consideration should be given to take steps to obtain such material or information. It will be important to do so if the material or information is likely to undermine the prosecution case, or assist a known defence. Paragraph 57 deals with the situation where the police or prosecutor meet with a refusal by the third party to supply such material or information. If, despite the reasons put forward for refusal by the third party, it still appears reasonable to seek its production, a witness summons requiring the third party to produce the material should be applied for (such an application can also be made by the defence). The third party can then argue at court that it is not material, or that it should not be disclosed on grounds of public interest immunity.

2.7.7

Disclosure Code of Practice—4 Recording of Information

4.1 If material which may be relevant to the investigation consists of information which is not recorded in any form, the officer in charge of an investigation must ensure that it is recorded in a durable or retrievable form (whether in writing, on video or audio tape, or on computer disk).

4.2 Where it is not practicable to retain the initial record of information because it forms part of a larger record which is to be destroyed, its contents should be transferred as a true record to a durable and more easily-stored form before that happens.

4.3 Negative information is often relevant to an investigation. If it may be relevant it must be recorded. An example might be a number of people present in a particular place at a particular time who state that they saw nothing unusual.

4.4 Where information which may be relevant is obtained, it must be recorded at the time it is obtained or as soon as practicable after that time. This includes, for example, information obtained in house-to-house enquiries, although the requirement to record information promptly does not require an investigator to take a statement from a potential witness where it would not otherwise be taken.

2.7.7.1

Keynote

Contemporaneous Records

The need for contemporaneous records is also required under the Police and Criminal Evidence Act 1984 and if not complied with could affect the admissibility of important evidence (s. 78 of the 1984 Act).

2.7.8

Disclosure Code of Practice—5 Retention of Material

(a) Duty to retain material

5.1 The investigator must retain material obtained in a criminal investigation which may be relevant to the investigation. Material may be photographed, video-recorded, captured digitally or otherwise retained in the form of a copy rather than the original at any time, if the original is perishable; the original was supplied to the investigator rather than generated by him and is to be returned to its owner; or the retention of a copy rather than the original is reasonable in all the circumstances.

5.2 Where material has been seized in the exercise of the powers of seizure conferred by the Police and Criminal Evidence Act 1984, the duty to retain it under this Code is subject to the provisions on the retention of seized material in section 22 of that Act.

5.3 If the officer in charge of an investigation becomes aware as a result of developments in the case that material previously examined but not retained (because it was not thought to be relevant) may now be relevant to the investigation, he should, wherever practicable, take steps to obtain it or ensure that it is retained for further inspection or for production in court if required.

5.4 The duty to retain material includes in particular the duty to retain material falling into the following categories, where it may be relevant to the investigation:

  • crime reports (including crime report forms, relevant parts of incident report books or police officer’s notebooks);

  • custody records;

  • records which are derived from tapes of telephone messages (for example, 999 calls) containing descriptions of an alleged offence or offender;

  • final versions of witness statements (and draft versions where their content differs from the final version), including any exhibits mentioned (unless these have been returned to their owner on the understanding that they will be produced in court if required);

  • interview records (written records, or audio or video tapes, of interviews with actual or potential witnesses or suspects);

  • communications between the police and experts such as forensic scientists, reports of work carried out by experts, and schedules of scientific material prepared by the expert for the investigator, for the purposes of criminal proceedings;

  • records of the first description of a suspect by each potential witness who purports to identify or describe the suspect, whether or not the description differs from that of subsequent descriptions by that or other witnesses;

  • any material casting doubt on the reliability of a witness.

5.5 The duty to retain material, where it may be relevant to the investigation, also includes in particular the duty to retain material which may satisfy the test for prosecution disclosure in the Act, such as:

  • information provided by an accused person which indicates an explanation for the offence with which he has been charged;

  • any material casting doubt on the reliability of a confession;

  • any material casting doubt on the reliability of a prosecution witness.

5.6 The duty to retain material falling into these categories does not extend to items which are purely ancillary to such material and possess no independent significance (for example, duplicate copies of records or reports).

(b) Length of time for which material is to be retained

5.7 All material which may be relevant to the investigation must be retained until a decision is taken whether to institute proceedings against a person for an offence.

5.8 If a criminal investigation results in proceedings being instituted, all material which may be relevant must be retained at least until the accused is acquitted or convicted or the prosecutor decides not to proceed with the case.

5.9 Where the accused is convicted, all material which may be relevant must be retained at least until:

  • the convicted person is released from custody, or discharged from hospital, in cases where the court imposes a custodial sentence or a hospital order;

  • six months from the date of conviction, in all other cases.

If the court imposes a custodial sentence or hospital order and the convicted person is released from custody or discharged from hospital earlier than six months from the date of conviction, all material which may be relevant must be retained at least until six months from the date of conviction.

5.10 If an appeal against conviction is in progress when the release or discharge occurs, or at the end of the period of six months specified in paragraph 5.9, all material which may be relevant must be retained until the appeal is determined. Similarly, if the Criminal Cases Review Commission is considering an application at that point in time, all material which may be relevant must be retained at least until the Commission decides not to refer the case to the Court.

2.7.8.1

Keynote

Retention of Material

In order to disclose material to the defence, there is a need first to find it and secondly retain it. Retention of material applies to documents and other evidence, including videos. Failure to retain material could lead to the prosecution losing the case, particularly where the court considers that its absence will lead to the defendant not being able to receive a fair trial (Article 6 of the European Convention on Human Rights). In Mouat v DPP [2001] EWHC Admin 130 the defendant had been charged with speeding. Police officers had recorded a video of the defendant driving at speed and had shown the video to the defendant prior to charge but had later recorded over it. The defendant contended that he had been intimidated by the unmarked police car being driven only inches from his rear bumper. The policy of the force was to keep videos for 28 days, unless they recorded an offence, in which case they were kept for 12 months. The court held that the police were under a duty to retain the video tapes at least until the end of the suspended enforcement period, during which time the defendant was entitled to consider whether he wished to contest his liability in court.

In deciding what material should be retained in an investigation, consideration should be given to any force orders, what powers there are to seize and retain the said material, as well as the Disclosure Code and the A-G’s Guidelines. Where an investigator discovers material that is relevant to the case, he/she must record that information or retain the material (Code, para. 5.1).

When deciding if the material should be retained the A-G’s Guidelines provide that: ‘investigators should always err on the side of recording and retaining material where they have any doubt as to whether it may be relevant’ (A-G’s Guidelines, para. 25).

It is important to note that the material itself does not have to be admissible in court for it to undermine the prosecution case. This point was made in R v Preston [1994] 2 AC 130, where it was said that:

In the first place, the fact that an item of information cannot be put in evidence by a party does not mean that it is worthless. Often, the train of inquiry which leads to the discovery of evidence which is admissible at a trial may include an item which is not admissible, and this may apply, although less frequently, to the defence as well as the prosecution.

If, during the lifetime of a case, the OIC becomes aware that material which has been examined during the course of an investigation, but not retained, becomes relevant as a result of new developments, para. 5.3 of the Code will apply. That officer should take steps to recover the material wherever practicable, or ensure that it is preserved by the person in possession of it (CPS Disclosure Manual, para. 5.25).

In some of these cases the investigation may well have started some time before the defendant became a suspect. In such cases all the material from the investigation/operation would have to be reviewed to see if it is relevant to the defence case. In cases where there is a surveillance operation or observation point, it may be that the details of the observation point and the surveillance techniques would not be revealed but it would be necessary to retain material generating from it (see para. 2.7.9.3).

2.7.8.2

Keynote

CCTV

The likelihood of an incident being caught on CCTV can be quite strong, which raises the question as to the responsibility of the police to investigate the possibility of there being a recording and retaining the recording tape. This point was considered in R (On the Application of Ebrahim) v Feltham Magistrates’ Court [2001] EWHC Admin 130. These cases related to the obliteration of video evidence. In coming to its judgment, the court considered a number of previous decisions where the police were not required to retain CCTV evidence. The general question for the court was whether the prosecution had been under a duty to obtain or retain video evidence. If there was no such duty, the prosecution could not have abused the process of the court simply because the material was no longer available, i.e. it was a reasonable line of inquiry (as to whether they were under a duty to obtain the evidence, see para. 2.7.6.2). Ebrahim shows that CCTV footage does not necessarily have to be retained in all cases. R v Dobson [2001] EWCA Crim 1606 followed Ebrahim. Dobson had been convicted of arson with intent to endanger life, his defence being that he was elsewhere at the time. There had been a strong possibility that the route that Dobson claimed to have taken would have been covered by CCTV but it would have depended on which side of the road he had been using and which way the cameras were pointing at the time. Dobson’s solicitors had not asked for the tapes to be preserved at interview and the police confirmed that the possibility of investigating the tapes had been overlooked. The tapes had been overwritten after 31 days. In following the principles set down in Ebrahim, the police, by their own admissions, had failed in their duty to obtain and retain the relevant footage. While there was plainly a degree of prejudice in Dobson being deprived of the opportunity of checking the footage in the hope that it supported his case, that prejudice was held not to have seriously prejudiced his case given the uncertainty of the likelihood that it would assist and the fact that Dobson had equally been in a position to appreciate the possible existence and significance of the tapes. The fact that there was no suggestion of malice or intentional omission by the police was also an important consideration for the court.

2.7.9

Disclosure Code of Practice—6 Preparation of Material for Prosecutor

(a) Introduction

6.1 The officer in charge of the investigation, the disclosure officer or an investigator may seek advice from the prosecutor about whether any particular item of material may be relevant to the investigation.

6.2 Material which may be relevant to an investigation, which has been retained in accordance with this code, and which the disclosure officer believes will not form part of the prosecution case, must be listed on a schedule. This process will differ depending on whether the case is likely to be heard in the magistrates’ court or the Crown Court.

(b) Magistrates’ Court

Anticipated Guilty pleas

6.3 If the accused is charged with a summary offence or an either-way offence that is likely to remain in the magistrates’ court, and it is considered that he is likely to plead guilty (e.g. because he has admitted the offence), a schedule or streamlined disclosure certificate is not required. However, the Common Law duty to disclose material which may assist the defence at bail hearings or in the early preparation of their case remains, and where there is such material the certification on the Police Report (MG5/SDF) must be completed. Where there is no such material, a certificate to that effect must be completed in like form to that attached at the Annex [of the Codes].

6.4 If, contrary to the expectation of a guilty plea being entered, the accused pleads not guilty at the first hearing, the disclosure officer must ensure that the streamlined disclosure certificate is prepared and submitted as soon as is reasonably practicable after that happens.

Anticipated Not Guilty pleas

6.5 If the accused is charged with a summary offence or an either-way offence that is likely to remain in the magistrates’ court, and it is considered that he is likely to plead not guilty, a streamlined disclosure certificate must be completed in like form to that attached at the Annex.

Material which may assist the defence

6.6 In every case, irrespective of the anticipated plea, if there is material known to the disclosure officer that might assist the defence with the early preparation of their case or at a bail hearing (e.g. a key prosecution witness has relevant previous convictions or a witness has withdrawn his or her statement), a note must be made on the MG5 (or other format agreed under the National File Standards). The material must be disclosed to the prosecutor who will disclose it to the defence if he thinks it meets this Common Law test.

No undermining or assisting material and sensitive material – magistrates’ court cases

6.7 If there is no material which might fall to be disclosed as undermining the prosecution case or assisting the defence, the officer should complete the appropriate entry on the streamlined disclosure certificate. If there is any sensitive unused material the officer should complete a sensitive material schedule (MG6D or similar) and attach it to the prosecution file. In exceptional circumstances, when its existence is so sensitive that it cannot be listed, it should be revealed to the prosecutor separately.

(c) Crown Court

6.8 For cases to be held in the Crown Court, the unused material schedules (MG6 series) are used.

6.9 The disclosure officer must ensure that a schedule is prepared in the following circumstances:

  • the accused is charged with an offence which is triable only on indictment;

  • the accused is charged with an offence which is triable either way, and it is considered that the case is likely to be tried on indictment.

6.10 Material which the disclosure officer does not believe is sensitive must be listed on a schedule of non-sensitive material. The schedule must include a statement that the disclosure officer does not believe the material is sensitive.

Way in which material is to be listed on schedule

6.11 For indictable only cases or either-way cases sent to the Crown Court, schedules MG6C, D and E should be completed to facilitate service of the MG6C with the prosecution case, wherever possible. The disclosure officer should ensure that each item of material is listed separately on the schedule, and is numbered consecutively. The description of each item should make clear the nature of the item and should contain sufficient detail to enable the prosecutor to decide whether he needs to inspect the material before deciding whether or not it should be disclosed.

6.12 In some enquiries it may not be practicable to list each item of material separately. For example, there may be many items of a similar or repetitive nature. These may be listed in a block and described by quantity and generic title.

6.13 Even if some material is listed in a block, the disclosure officer must ensure that any items among that material which might satisfy the test for prosecution disclosure are listed and described individually.

(d) Sensitive material – Crown Court

6.14 Any material which is believed to be sensitive either must be listed on a schedule of sensitive material or, in exceptional circumstances where its existence is so sensitive that it cannot be listed, it should be revealed to the prosecutor separately. If there is no sensitive material, the disclosure officer must record this fact on a schedule of sensitive material, or otherwise so indicate.

6.15 Subject to paragraph 6.16 below, the disclosure officer must list on a sensitive schedule any material the disclosure of which he believes would give rise to a real risk of serious prejudice to an important public interest, and the reason for that belief. The schedule must include a statement that the disclosure officer believes the material is sensitive. Depending on the circumstances, examples of such material may include the following among others:

  • material relating to national security;

  • material received from the intelligence and security agencies;

  • material relating to intelligence from foreign sources which reveals sensitive intelligence gathering methods;

  • material given in confidence;

  • material relating to the identity or activities of informants, or undercover police officers, or witnesses, or other persons supplying information to the police who may be in danger if their identities are revealed;

  • material revealing the location of any premises or other place used for police surveillance, or the identity of any person allowing a police officer to use them for surveillance;

  • material revealing, either directly or indirectly, techniques and methods relied upon by a police officer in the course of a criminal investigation, for example covert surveillance techniques, or other methods of detecting crime;

  • material whose disclosure might facilitate the commission of other offences or hinder the prevention and detection of crime;

  • material upon the strength of which search warrants were obtained;

  • material containing details of persons taking part in identification parades;

  • material supplied to an investigator during a criminal investigation which has been generated by an official of a body concerned with the regulation or supervision of bodies corporate or of persons engaged in financial activities, or which has been generated by a person retained by such a body;

  • material supplied to an investigator during a criminal investigation which relates to a child or young person and which has been generated by a local authority social services department, an Area Child Protection Committee or other party contacted by an investigator during the investigation;

  • material relating to the private life of a witness.

6.16 In exceptional circumstances, where an investigator considers that material is so sensitive that its revelation to the prosecutor by means of an entry on the sensitive schedule is inappropriate, the existence of the material must be revealed to the prosecutor separately. This will apply only where compromising the material would be likely to lead directly to the loss of life, or directly threaten national security.

6.17 In such circumstances, the responsibility for informing the prosecutor lies with the investigator who knows the detail of the sensitive material. The investigator should act as soon as is reasonably practicable after the file containing the prosecution case is sent to the prosecutor. The investigator must also ensure that the prosecutor is able to inspect the material so that he can assess whether it is disclosable and, if so, whether it needs to be brought before a court for a ruling on disclosure.

2.7.9.1

Keynote

Initial Disclosure

Under s. 3 of the 1996 Act, all previously undisclosed material that might undermine the prosecution case must be disclosed to the defence. If there is no such material, then the accused must be given a written statement to that effect. This applies to all material in possession of the police or that has been inspected under the provisions of the Disclosure Code of Practice. This therefore requires the disclosure officer to know what material exists and what material has already been made available to the defence.

In magistrates’ courts there is now a streamlined procedure in summary cases that are expected to end in a guilty plea, so that a schedule of unused material need not be served in such cases, but that the prosecution should perform its obligations at common law (as set out in R v DPP ex parte Lee, see para. 2.7.10.2) and provide written confirmation that it has been done.

The prosecution only have to disclose material relevant to the prosecution in question. For instance, surveillance logs concerning another matter would not need to be disclosed (R v Dennis (2000) 13 April, unreported). It is up to the prosecutor to decide on the format in which material is disclosed to the accused. If material is to be copied, s. 3(3) of the 1996 Act leaves open the question of whether this should be done by the prosecutor or by the police. The prosecutor must also provide the defence with a schedule of all non-sensitive material (s. 4(2) of the 1996 Act). This includes all other information in police possession, or material that has been examined by the police other than ‘sensitive material’ (this is disclosed to the prosecutor separately). ‘Sensitive material’ is material which it is not in the public interest to disclose. At this stage, the defence are not entitled to inspect items on the schedule that have not been disclosed (s. 3(6) and (7)).

Material must not be disclosed to the extent that the court concludes that it is not in the public interest to disclose it and orders accordingly or it is material whose disclosure is prohibited by s. 17 of the Regulation of Investigatory Powers Act 2000 unless it falls within the exception provided by s. 18 of the Act.

2.7.9.2

Keynote

Completing the Schedules

It is important that the schedules themselves are completed fully. Guidance is given by paras 6.9 to 6.11 of the Code and in detail in the CPS Disclosure Manual, chapters 6 to 8. While items should be listed separately, there may be occasions where items are similar or the same, in which case these may be listed together (CPS Disclosure Manual, para. 7.4). This also applies to sensitive schedules, in so far as is possible without compromising the confidentiality of the information (see also the CPS Disclosure Manual, para. 7.4). Paragraph 21 and the Annex to the A-G’s Guidelines also allows in some circumstances, because of the large volumes of material, not to examine all the material.

The following items should also be considered when deciding on initial disclosure in cases where the disclosure is in the public interest (that is where they are not ‘sensitive material’ ):

  • records of previous convictions and cautions for prosecution witnesses;

  • any other information which casts doubt on the reliability of a prosecution witness or on the accuracy of any prosecution evidence;

  • any motives for the making of false allegations by a prosecution witness;

  • any material which may have a bearing on the admissibility of any prosecution evidence;

  • the fact that a witness has sought, been offered or received a reward;

  • any material that might go to the credibility of a prosecution witness;

  • any information which may cast doubt on the reliability of a confession. Any item which relates to the accused’s mental or physical health, his intellectual capacity, or to any ill-treatment which the accused may have suffered when in the investigator’s custody is likely to have the potential for casting doubt on the reliability of a purported confession;

  • information that a person other than the accused was or might have been responsible or which points to another person whether charged or not (including a co-accused) having involvement in the commission of the offence (CPS Disclosure Manual, para. 10.1).

The disclosure officer should be mindful of the need to demonstrate that he/she has taken all reasonable steps should it transpire that full disclosure had not been made.

It should be remembered that the prosecutor is required to advise the disclosure officer of any omissions or amendments or where there are insufficient or unclear descriptions, or where there has been a failure to provide schedules at all. The disclosure officer must then take all necessary remedial action and provide properly completed schedules to the prosecutor. Failure to do so may result in the matter being raised with a senior officer. There may also be occasions where schedules need to be edited; this is covered in the CPS Disclosure Manual at paras 7.7 and 7.8. The responsibility to edit rests with the police but the prosecutor should be consulted where editing or separating is other than straightforward (CPS Disclosure Manual, para. 7.9).

2.7.9.3

Keynote

Sensitive Material

This is material which the disclosure officer believes it is not in the public interest to disclose. While the general principle that governs the 1996 Act and Article 6 of the European Convention is that material should not be withheld from the defence, sensitive material is an exception to this. In Van Mechelen v Netherlands (1998) 25 EHRR 647, the court stated that in some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6. It should be noted that the court did recognise that the entitlement of disclosure of relevant evidence was not an absolute right but could only be restricted as was strictly necessary. In R v Keane [1994] 1 WLR 746 Lord Taylor CJ stated that ‘the judge should carry out a balancing exercise, having regard both to the weight of the public interest in non-disclosure and to the importance of the documents to the issues of interest, present and potential, to the defence, and if the disputed material might prove a defendant’s innocence or avoid a miscarriage of justice, the balance came down resoundingly in favour of disclosure’.

Decisions as to what should be withheld from the defence are a matter for the court and, where necessary, an application to withhold the material must be made to the court (R v Ward [1993] 1 WLR 619). The application of public interest immunity was considered by the House of Lords in R v H [2004] UKHL 3. In this case, the defendants were charged with conspiracy to supply a Class A drug following a covert police investigation, and sought disclosure of material held by the prosecution relating to the investigation. The prosecution resisted the disclosure on grounds of public interest immunity. The court held that if the material did not weaken the prosecution case or strengthen the defence, there would be no requirement to disclose it. Once material is considered to be sensitive then it should be disclosed only if the public interest application fails (unless abandoning the case is considered more appropriate) or with the express written approval of the Treasury Solicitor (CPS Disclosure Manual, chapters 33 to 34). Such material is not as wide as it seems; for instance it does not mean evidence which might harm the prosecution case. This category is limited and the Code of Practice, at para. 6.12, gives a number of examples of such material. It will be for the disclosure officer to decide what material, if any, falls into this category; guidance is provided in chapters 13 and 18 of the CPS Disclosure Manual.

Paragraph 6.12 of the Code provides examples of sensitive material. Many of these items are included within the common law principles of public interest immunity. The case law in this area will still apply to decisions regarding the disclosure of such material. These groups are not exclusive and the areas most likely to apply will be those concerning the protection of intelligence and intelligence methods. In any consideration as to what should be withheld, the provisions of part II of the Regulation of Investigatory Powers Act 2000 should be referred to. Part II of the Act will make provision, not only for the gathering and recording of intelligence, but also disclosure of any material gained and methods used. Claims to withhold material may be made by parties other than the prosecutor (who would do so on behalf of the police). In some cases, the relevant minister or the Attorney-General may intervene to claim immunity. Alternatively, the claim to immunity may be made by the party seeking to withhold the evidence, either on its own initiative or at the request of the relevant government department.

Guidance is also provided in para. 65 of the A-G’s Guidelines: even where an application is made to the court to withhold material a prosecutor should aim to disclose as much of the material as he/she properly can (by giving the defence redacted or edited copies of summaries).

In deciding whether material attracts public interest immunity the court will have to be satisfied that the material in no way helps the defence or undermines the prosecution case. Where the material related to secret or confidential systems it should not be revealed as this would aid serious criminal enterprise in the future (R v Templar [2003] EWCA Crim 3186).

Where police consider that material should not be disclosed due to its sensitive nature, the CPS Disclosure Manual should be followed. This is covered at paras 8.5 to 8.27. Some of the key points from these paragraphs include the following:

  • Consultation should take place at a senior level, and a senior officer (who may be independent of the investigation) should be involved.

  • The consultation should cover:

    • the reasons why the material is said to be sensitive;

    • the degree of sensitivity said to attach to the material, i.e. why it is considered that disclosure will create a real risk of serious prejudice to an important public interest;

    • the consequences of revealing to the defence:

      • the material itself,

      • the category of the material,

      • the fact that an application is being made;

    • the apparent significance of the material to the issues in the trial;

    • the involvement of any third parties in bringing the material to the attention of the police;

    • where the material is likely to be the subject of an order for disclosure, what police views are regarding continuance of the prosecution.

  • Any submission that is to be made to the court will be signed by the prosecutor, and by the senior officer, who will state that to the best of his/her knowledge and belief the assertions of fact on which the submission is based are correct. In applications for public interest immunity the CPS has an obligation to ensure that all such material is in its possession and the police have a duty to pass the material on (R v Menga and Marshalleck [1998] Crim LR 58).

  • Whether it is possible to disclose the material without compromising its sensitivity.

Care must be taken to safeguard material that is sensitive and keep it separate from other material because if the material subject to a public interest immunity order for non-disclosure is inadvertently disclosed by the prosecution to lawyers for the defendants, those lawyers cannot be ordered not to further disseminate that material to any third party, including their own clients (R v G [2004] EWCA Crim 1368).

The investigator also has a responsibility to identify material that could be sensitive and bring this to the attention of the CPS. Where material is identified steps must be taken to record and retain the material. For information recorded on computers, see ‘Digital guidance’, chapter 30 of the CPS Disclosure Manual and Annex A to the A-G’s Guidelines.

2.7.9.4

Keynote

Informants

The courts recognise the need to protect the identity of informants to ensure that the supply of information about criminal activities does not dry up and to ensure the informants’ own safety. However, there may be occasions where if the case is to continue the identity of an informant will have to be disclosed.

This is particularly so where there is a suggestion that an informant has participated in the events constituting, surrounding or following the crime; the judge must consider whether this role so impinges on an issue of interest to the defence, present or potential, as to make disclosure necessary (R v Turner [1995] 1 WLR 264).

The need to disclose details of informants has been considered by the Court of Appeal in two cases. The first case, R v Denton [2002] EWCA Crim 272, concerned a defendant who was a police informer. The defendant was charged with murder and alleged that he had been told by his police handlers not to tell his lawyers about his status. The court held that there was no duty for the Crown to disclose to the defence, or to seek a ruling from the judge, as to any information regarding an accused being a police informer. On any common sense view, the material had already been disclosed to the defendant, and the Crown had no duty to supply the defendant with information with which he was already familiar. This last point may also be relevant to other situations. The second case, R v Dervish [2001] EWCA Crim 2789, concerned an undercover operation that was commenced after an informant gave information. The court held in this case that the public interest in protecting the identification of an informant had to be balanced against the right of the defendant to a fair trial; if there was material that might assist the defence, the necessity for the defendant to have a fair trial would outweigh the other interests in the case and the material would have to be disclosed or the prosecution discontinued. There had been no such material in this case. In R v Edwards (formerly Steadman) [2012] EWCA Crim 5, a murder case, the prosecution failed to disclose the fact that they were seeking one of the witness’s registration as an informant, and that this witness was willing to give information if he did not receive any additional custodial sentence in respect of the offences with which he had been charged. The court stated that these were factors which should have been made available to the jury in deciding the credibility of the witness. However, in the circumstances of the case, even with full and proper disclosure, the task of assessing this witness’s reliability would have changed neither the landscape of the trial nor the jury’s deliberations upon the evidence. The circumstantial case was compelling, and the verdict was safe.

Where an informant who has participated in the crime is called to give evidence at the trial there would have to be very strong reasons for this fact not to be disclosed (R v Patel [2001] EWCA Crim 2505).

There are strong links between the principles of informants and undercover police officers. In R v Barkshire [2011] EWCA Crim 1885 the Court of Appeal, upholding the appeal, held that recordings and the statement of an undercover police officer contained information which assisted the defence. They showed that the undercover officer had been involved in activities which went much further than the authorisation that he had been given. They appeared to show him as an enthusiastic supporter of criminal activity, arguably, as an agent provocateur. Further, the recordings supported the defendant’s contentions that their intended activities were directed to the saving of life and avoidance of injury, and that they proposed to conduct the occupation in a careful and proportionate manner. This material was pertinent to a potential submission of abuse of process by way of entrapment and in any event had the capacity to support B’s defence.

2.7.9.5

Keynote

Observation Points and the Johnson Ruling

R v Rankine [1986] 2 WLR 1075, considering previous cases, stated that it was the rule that police officers should not be required to disclose sources of their information, whether those sources were paid informers or public spirited citizens, subject to a discretion to admit to avoid a miscarriage of justice and that observation posts were included in this rule.

In R v Johnson [1988] 1 WLR 1377, the appellant was convicted of supplying drugs. The only evidence against him was given by police officers, who testified that, while stationed in private premises in a known drug-dealing locality, they had observed him selling drugs. The defence applied to cross-examine the officers on the exact location of the observation posts, in order to test what they could see, having regard to the layout of the street and the objects in it. In the jury’s absence, the prosecution called evidence as to the difficulty of obtaining assistance from the public, and the desire of the occupiers, who were also occupiers at the time of the offence, that their names and addresses should not be disclosed because they feared for their safety.

The judge ruled that the exact location of the premises need not be revealed. The appeal was dismissed; although the conduct of the defence was to some extent affected by the restraints placed on it, this led to no injustice. The jury were well aware of the restraints, and were most carefully directed about the very special care they had to give to any disadvantage they may have brought to the defence. Johnson was applied and approved in R v Hewitt (1992) 95 Cr App R 81 (see also R v Grimes [1994] Crim LR 213).

In Johnson, Watkins LJ at pp. 1385–6 gave the following guidance as to the minimum evidential requirements needed if disclosure is to be protected:

  1. a) The police officer in charge of the observations to be conducted, no one of lower rank than a sergeant should usually be acceptable for this purpose, must be able to testify that beforehand he visited all observation places to be used and ascertained the attitude of occupiers of premises, not only to the use to be made of them, but to the possible disclosure thereafter of the use made and facts which could lead to the identification of the premises thereafter and of the occupiers. He may of course in addition inform the court of difficulties, if any, usually encountered in the particular locality of obtaining assistance from the public.

  2. b) A police officer of no lower rank than a chief inspector must be able to testify that immediately prior to the trial he visited the places used for observations, the results of which it is proposed to give in evidence, and ascertained whether the occupiers are the same as when the observations took place and whether they are or are not, what the attitude of those occupiers is to the possible disclosure of the use previously made of the premises and of facts which could lead at the trial to identification of premises and occupiers.

Such evidence will of course be given in the absence of the jury when the application to exclude the material evidence is made. The judge should explain to the jury, as this judge did, when summing up or at some appropriate time before that, the effect of his ruling to exclude, if he so rules.

The guidelines in Johnson do not require a threat of violence before protection can be afforded to the occupier of an observation post; it suffices that the occupier is in fear of harassment (Blake v DPP (1993) 97 Cr App R 169).

This extended the rules established in R v Rankine [1986] QB 861 and is based on the protection of the owner or occupier of the premises, and not on the identity of the observation post. Thus, where officers have witnessed the commission of an offence as part of a surveillance operation conducted from an unmarked police vehicle, information relating to the surveillance and the colour, make and model of the vehicle should not be withheld (R v Brown and Daley (1988) 87 Cr App R 52).

2.7.10

Disclosure Code of Practice—7 Revelation of Material to Prosecutor

7.1 Certain unused material must be disclosed to the accused at Common Law if it would assist the defence with the early preparation of their case or at a bail hearing. This material may consist of items such as a previous relevant conviction of a key prosecution witness or the withdrawal of support for the prosecution by a witness. This material must be revealed to the prosecutor for service on the defence with the initial details of the prosecution case.

7.1A In anticipated not guilty plea cases for hearing in the magistrates’ court the disclosure officer must give the streamlined disclosure certificate to the prosecutor at the same time as he gives the prosecutor the file containing the material for the prosecution case.

7.1B In cases sent to the Crown Court, wherever possible, the disclosure officer should give the schedules concerning unused material to the prosecutor at the same time as the prosecution file in preparation for the first hearing and any case management that the judge may wish to conduct at that stage.

7.2 The disclosure officer should draw the attention of the prosecutor to any material an investigator has retained (including material to which paragraph 6.13 applies) which may satisfy the test for prosecution disclosure in the Act, and should explain why he has come to that view.

7.3 At the same time as complying with the duties in paragraphs 7.1 and 7.2, the disclosure officer must give the prosecutor a copy of any material which falls into the following categories (unless such material has already been given to the prosecutor as part of the file containing the material for the prosecution case):

  • information provided by an accused person which indicates an explanation for the offence with which he has been charged;

  • any material casting doubt on the reliability of a confession;

  • any material casting doubt on the reliability of a prosecution witness;

  • any other material which the investigator believes may satisfy the test for prosecution disclosure in the Act.

7.4 If the prosecutor asks to inspect material which has not already been copied to him, the disclosure officer must allow him to inspect it. If the prosecutor asks for a copy of material which has not already been copied to him, the disclosure officer must give him a copy. However, this does not apply where the disclosure officer believes, having consulted the officer in charge of the investigation, that the material is too sensitive to be copied and can only be inspected.

7.5 If material consists of information which is recorded other than in writing, whether it should be given to the prosecutor in its original form as a whole, or by way of relevant extracts recorded in the same form, or in the form of a transcript, is a matter for agreement between the disclosure officer and the prosecutor.

2.7.10.1

Keynote

What Satisfies the Test for Prosecution Disclosure

Paragraphs 7.2 to 7.3 of the Code create a catch-all provision and presumably require the disclosure officer to make inquiries of the other officers in the case to ensure that all material is included.

However, what needs to be disclosed should be balanced by the A-G’s Guidelines:

Properly applied, the CPIA should ensure that material is not disclosed which overburdens the participants in the trial process, diverts attention from the relevant issues, leads to unjustifiable delay, and is wasteful of resources. Consideration of disclosure issues should be an integral part of a good investigation and not something that exists separately.

Disclosure must not be an open-ended trawl of unused material. A critical element to fair and proper disclosure is that the defence play their role to ensure that the prosecution are directed to material which might reasonably be considered capable of undermining the prosecution case or assisting the case for the accused. This process is key to ensuring prosecutors make informed determinations about disclosure of unused material. The defence statement is important in identifying the issues in the case and why it is suggested that the material meets the test for disclosure (A-G’s Guidelines, paras 3 and 9).

There will occasionally be cases where the police investigation has been intelligence-led; there may be a deputy disclosure officer appointed just to deal with intelligence material which, by its very nature, is likely to be sensitive (see para. 2.7.9.3). Where there are a number of disclosure officers assigned to a case, there should be a lead disclosure officer who is the focus for inquiries and whose responsibility it is to ensure that the investigator’s disclosure obligations are complied with. Where appropriate, regular case conferences and other meetings should be held to ensure prosecutors are apprised of all relevant developments in investigations. Full records should be kept of such meetings (A-G’s Guidelines, para. 18).

It should be noted that where material is available to police from a particular source, e.g. local authority records, a decision that some of the material is relevant does not mean that it all has to be disclosed. This point was reinforced by the case of R v Abbott [2003] EWCA Crim 350, where the Court of Appeal held that the defendant was not entitled to blanket disclosure of all the files.

2.7.10.2

Keynote

Time Period for Initial Disclosure

While there are provisions to set specific time periods by which initial disclosure must be met, none currently exist. Until such time, disclosure at this stage must be made as soon as practicable after the duty arises.

In R v Bourimech [2002] EWCA Crim 2089, the defendant sought disclosure following the service of his defence statement of a previous crime report made by the victim. One day before the trial was scheduled to begin, the crime report relating to that incident was served among other papers on the defence. This report escaped the notice of the defence until the final day of the trial. The court held that the defect in disclosure amounted to unfairness in the proceedings and the court could not be confident that if the victim had been cross-examined in relation to the previous allegation the jury might have been influenced by the credit and credibility of the witness.

In most cases prosecution disclosure can wait until after this time without jeopardising the defendant’s right to a fair trial. However, the prosecutor must always be alive to the need to make advance disclosure of material that should be disclosed at an earlier stage (R v DPP, ex parte Lee [1999] 1 WLR 1950). Examples include:

  • previous convictions of a complainant or a deceased if that information could reasonably be expected to assist the defence when applying for bail;

  • material that might enable a defendant to make an application to stay the proceedings as an abuse of process;

  • material that might enable a defendant to submit that he/she should only be sent for trial on a lesser charge, or perhaps that he/she should not be sent for trial at all;

  • depending on what the defendant chooses to reveal about his/her case at this early stage, material that would enable the defendant and his/her legal advisers to make preparations for trial that would be significantly less effective if disclosure were delayed; for example, names of eye-witnesses whom the prosecution did not intend to use.

It should be noted that any disclosure by the prosecution prior to the application hearing would not normally exceed that required by s. 3 of the 1996 Act.

2.7.11

Disclosure Code of Practice—8 Subsequent Action by Disclosure Officer

8.1 At the time when a streamlined disclosure certificate is prepared for magistrates’ court cases, or a schedule of non-sensitive material is prepared for Crown Court cases, the disclosure officer may not know exactly what material will form the case against the accused. In addition, the prosecutor may not have given advice about the likely relevance of particular items of material. Once these matters have been determined, the disclosure officer must give the prosecutor, where necessary, an amended certificate or schedule listing any additional material:

  • which may be relevant to the investigation,

  • which does not form part of the case against the accused,

  • which is not already listed on the schedule, and

  • which he believes is not sensitive, unless he is informed in writing by the prosecutor that the prosecutor intends to disclose the material to the defence.

8.2 Section 7A of the Act imposes a continuing duty on the prosecutor, for the duration of criminal proceedings against the accused, to disclose material which satisfies the test for disclosure (subject to public interest considerations). To enable him to do this, any new material coming to light should be treated in the same way as the earlier material.

8.3 In particular, after a defence statement has been given, or details of the issues in dispute have been recorded on the effective trial preparation form, the disclosure officer must look again at the material which has been retained and must draw the attention of the prosecutor to any 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; and he must reveal it to him in accordance with paragraphs 7.4 and 7.5 above.

2.7.11.1

Keynote

Disclosure by the Defence

The duty on the defence to make disclosure only arises after the prosecution has made the initial disclosure (s. 5(1) of the 1996 Act). This duty falls into two categories: compulsory and voluntary. The disclosure required by the defence is limited to material that they intend to use at trial.

The defence statement should set out the nature of the defendant’s defence, including any particular defences on which he/she intends to rely and particulars of the matters of fact on which the defendant intends to rely; this means the defence will need to disclose a factual narrative of their case. In addition, those issues, relevant to the case, which the accused disputes with the prosecution must be set out with reasons. From 4 April 2005 the defence statement must indicate any point of law (including any point as to the admissibility of evidence or an abuse of process) which the defendant wishes to raise, and any authority on which he/she intends to rely for that purpose (s. 6A of the 1996 Act). This requirement to give reasons is intended to stop the defence going on a ‘fishing expedition’ to speculatively look at material in order to find some kind of defence.

Where the defence case involves an alibi, the statement must give details of the alibi, including the name and address of any alibi witness. In cases where there are co-accused, there is no duty to disclose this information to the other defendants, although this could be done voluntarily.

An alibi for the purposes of the defence statement is defined as 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/she 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. Where this applies, the defence must provide details including the name, address and date of birth of any witness the accused believes is able to give evidence in support of the alibi, or as many of those details as are known to the accused when the statement is given. Where such details are not known, the statement must include any information in the accused’s possession which might be of material assistance in identifying or finding any such witness (s. 6A(2) of the 1996 Act).

The defence must also give to the court and the prosecutor notice of any other witnesses other than the defendant will be called to give evidence. If any other witness is to be called then the name, address and date of birth of each such proposed witness, or as many of those details as are known to the accused must be provided. If any of this information is not available the defence must provide any information in their possession which might be of material assistance in identifying or finding any such proposed witness (s. 6C of the 1996 Act), see para. 2.7.11.7.

There may be occasions where the defence statement is allowed to be used in cross-examination when it is alleged that the defendant has changed his/her defence or in re-examination to rebut a suggestion of recent invention (R v Lowe [2003] EWCA Crim 3182).

2.7.11.2

Keynote

Compulsory Disclosure by Defence (s. 5)

In proceedings before the Crown Court, where the prosecutor has provided initial disclosure, or purported to, the accused must serve a defence statement on the prosecutor and the court. The accused must also provide details of any witnesses he/ she intends to call at the trial. Where there are other accused in the proceedings and the court so orders, the accused must also give a defence statement to each of the other accused specified by the court, and a request for a copy of the defence statement may be made by any co-accused.

Once a defence statement has been provided (whether compulsorily or voluntarily), the prosecution must disclose any prosecution material that:

  • might be reasonably expected to assist the accused’s defence; and

  • has not already been disclosed.

It will be a question of fact whether material in police possession might be reasonably expected to assist the defence case. If the court feels that material that was not disclosed would to any reasonable person have been expected to help the defence case, the case may fail.

If there is no additional material to be disclosed then the prosecutor must give a written statement to this effect. It is not the responsibility of the prosecutor or the police to examine material held by third parties which the defence have stated they wish to examine (the defence can request this from the third party or apply for a witness summons). However, there may be occasions where matters disclosed in the defence statement lead investigators to look at material held by third parties as it might impact on the prosecution case. This stage of the disclosure process may require further inquiries prompted by the defence statement. The result of those inquiries may then have to be disclosed because it either undermines the prosecution case or it assists the accused’s defence.

Where the defence statement points the prosecution to other lines of inquiry, e.g. the investigation of an alibi, or where forensic expert evidence is involved, the disclosure officer should inform the officer in charge of the investigation and copy the defence statement to him/her, together with any CPS advice provided if appropriate (CPS Disclosure Manual, para. 15.17).

2.7.11.3

Keynote

Voluntary Disclosure by Accused (s. 6)

In the magistrates’ court, the accused is not obliged to serve a defence statement but may choose to do so, in which case the statutory provisions apply. However, it is a mandatory requirement for the accused to provide details of his or her witnesses. The purpose of s. 6 of the 1996 Act is to allow the defence, in cases where the case is being tried summarily as a not guilty plea, to obtain further disclosure from the prosecution after the initial disclosure. This is only likely to happen where:

  • the defence are not satisfied with the material disclosed at the initial disclosure stage or where they wish to examine items listed in the schedule of non-sensitive material;

  • the defence wish to show the strength of their case in order to persuade the prosecution not to proceed.

If the defence decide to make a defence statement they must comply with the same conditions imposed on compulsory defence disclosure.

2.7.11.4

Keynote

Time Period for the Defence Statement

Once the prosecution provides the initial disclosure, the defence have 14 days in respect of summary proceedings, or 28 days in respect of Crown Court proceedings within which the accused in criminal proceedings must give: a compulsory defence statement under s. 5 of the Act; a voluntary defence statement under s. 6 of the Act; or a notice of his/her intention to call any person, other than him/herself, as a witness at trial under s. 6C of the Act (Alibi witness). The court can only grant an extension if satisfied that the accused could not reasonably have given a defence statement or given notification within the relevant period. There is no limit on the number of days by which the relevant period may be extended or the number of applications for extensions that may be made (Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011 (SI 2011/209)).

2.7.11.5

Keynote

Effect of Failure in Defence Disclosure

If the defence fail to give a defence statement under s. 5 or, where a defence statement is provided, they:

  • are outside the time limits;

  • set out inconsistent defences in a defence statement or at trial put forward a different defence; or

  • at trial adduce evidence in support of an alibi without having given particulars of the alibi in a defence statement, or call a witness in support of an alibi without providing details of the witness or information that might help trace the witness;

then the following sanctions may apply:

  • the court or, with the leave of the court, any other party may make such comment as appears appropriate;

  • the court or jury may draw such inferences as appear proper in deciding whether the accused is guilty of the offence concerned (but there must also be other evidence to convict the defendant);

  • even if the defence serve the defence statement outside the time limits, the prosecution must still consider the impact of the statement in terms of the need for any further disclosure (Murphy v DPP [2006] EWHC 1753 (Admin)).

2.7.11.6

Keynote

Continuing Duty of Prosecutor to Disclose (s. 7A)

Section 7A places a continuing duty on the prosecutor at any time between the initial disclosure and the accused being acquitted or convicted or the prosecutor deciding not to proceed with the case concerned, to keep under review the question of further disclosure. In considering the need for further disclosure the prosecutor must consider whether material might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused. If there is any such material, it must be disclosed to the accused as soon as is reasonably practicable. Consideration of what might need to be disclosed could change depending on the state of affairs at that time (including the case for the prosecution as it then stands) and so should be reviewed on a continuing basis (s. 7A(4)).

In R v Tyrell [2004] EWCA Crim 3279 this responsibility was clearly outlined. The court held that there was an obligation to consider whether there was any material in the hands of the prosecution which might undermine the case against the applicants or might reasonably be expected to assist the disclosed defences. In addition, the Crown had to consider whether there was any material which might be relevant to an issue which might feature in the trial; this clearly required a continuing duty. In this case, the court found that disclosure had been considered many times as the case progressed in relation to a variety of issues as they arose and ensured a fair trial.

Material must not be disclosed to the extent that the court concludes that it is not in the public interest to disclose it and orders accordingly or it is material whose disclosure is prohibited by s. 17 of the Regulation of Investigatory Powers Act 2000.

There is a duty on the prosecution to continue to review the disclosure of prosecution material right up until the case is completed (acquittal, conviction or discontinuance of the case). If the defence are not satisfied that the prosecution have disclosed all they should have, s. 8 of the 1996 Act allows for the defence to apply to the court for further disclosure.

2.7.11.7

Keynote

Interviewing Defence Witnesses or Alibi Witnesses

Section 21A of the Criminal Procedure and Investigations Act 1996 introduced a Code of Practice for Arranging and Conducting Interviews of Witnesses Notified by the Accused. The Code sets out guidance that police officers and other persons charged with investigating offences must follow if they arrange or conduct interviews of proposed witnesses whose details are disclosed to the prosecution under the 1996 Act. These are set out below:

Arrangement of the interview

Information to be provided to the witness before any interview may take place

  1. 3.1 If an investigator wishes to interview a witness, the witness must be asked whether he consents to being interviewed and informed that:

    • an interview is being requested following his identification by the accused as a proposed witness under section 6A(2) or section 6C of the Act,

    • he is not obliged to attend the proposed interview,

    • he is entitled to be accompanied by a solicitor at the interview (but nothing in this Code of Practice creates any duty on the part of the Legal Services Commission to provide funding for any such attendance), and

    • a record will be made of the interview and he will subsequently be sent a copy of the record.

  2. 3.2 If the witness consents to being interviewed, the witness must be asked:

    • whether he wishes to have a solicitor present at the interview,

    • whether he consents to a solicitor attending the interview on behalf of the accused, as an observer, and

    • whether he consents to a copy of the record being sent to the accused. If he does not consent, the witness must be informed that the effect of disclosure requirements in criminal proceedings may nevertheless require the prosecution to disclose the record to the accused (and any co-accused) in the course of the proceedings.

Information to be provided to the accused before any interview may take place

  1. 4.1 The investigator must notify the accused or, if the accused is legally represented in the proceedings, the accused’s representatives:

    • that the investigator requested an interview with the witness,

    • whether the witness consented to the interview, and

    • if the witness consented to the interview, whether the witness also consented to a solicitor attending the interview on behalf of the accused, as an observer.

  2. 4.2 If the accused is not legally represented in the proceedings, and if the witness consents to a solicitor attending the interview on behalf of the accused, the accused must be offered the opportunity, a reasonable time before the interview is held, to appoint a solicitor to attend it.

Identification of the date, time and venue for the interview

  1. 5 The investigator must nominate a reasonable date, time and venue for the interview and notify the witness of them and any subsequent changes to them.

Notification to the accused’s solicitor of the date, time and venue of the interview

  1. 6 If the witness has consented to the presence of the accused’s solicitor, the accused’s solicitor must be notified that the interview is taking place, invited to observe, and provided with reasonable notice of the date, time and venue of the interview and any subsequent changes.

Conduct of the interview

The investigator conducting the interview

  1. 7 The identity of the investigator conducting the interview must be recorded. That person must have sufficient skills and authority, commensurate with the complexity of the investigation, to discharge his functions effectively. That person must not conduct the interview if that is likely to result in a conflict of interest, for instance, if that person is the victim of the alleged crime which is the subject of the proceedings. The advice of a more senior officer must always be sought if there is doubt as to whether a conflict of interest precludes an individual conducting the interview. If thereafter the doubt remains, the advice of a prosecutor must be sought.

Attendance of the accused’s solicitor

  1. 8.1 The accused’s solicitor may only attend the interview if the witness has consented to his presence as an observer. Provided that the accused’s solicitor was given reasonable notice of the date, time and place of the interview, the fact that the accused’s solicitor is not present will not prevent the interview from being conducted. If the witness at any time withdraws consent to the accused’s solicitor being present at the interview, the interview may continue without the presence of the accused’s solicitor.

  2. 8.2 The accused’s solicitor may attend only as an observer.

Attendance of the witness’s solicitor

  1. 9 Where a witness has indicated that he wishes to appoint a solicitor to be present, that solicitor must be permitted to attend the interview.

Attendance of any other appropriate person

  1. 10 A witness under the age of 18 or a witness who is mentally disordered or otherwise mentally vulnerable must be interviewed in the presence of an appropriate person.

Recording of the interview

  1. 11.1 An accurate record must be made of the interview, whether it takes place at a police station or elsewhere. The record must be made, where practicable, by audio recording or by visual recording with sound, or otherwise in writing. Any written record must be made and completed during the interview, unless this would not be practicable or would interfere with the conduct of the interview, and must constitute either a verbatim record of what has been said or, failing this, an account of the interview which adequately and accurately summarises it. If a written record is not made during the interview it must be made as soon as practicable after its completion. Written interview records must be timed and signed by the maker.

  2. 11.2 A copy of the record must be given, within a reasonable time of the interview, to:

    1. (a) the witness, and

    2. (b) if the witness consents, to the accused or the accused’s solicitor.

2.7.12

Disclosure Code of Practice—9 Certification by Disclosure Officer

9.1 The disclosure officer must certify to the prosecutor that to the best of his knowledge and belief, all relevant material which has been retained and made available to him has been revealed to the prosecutor in accordance with this Code. He must sign and date the certificate. It will be necessary to certify not only at the time when the schedule and accompanying material is submitted to the prosecutor, and when relevant material which has been retained is reconsidered after the accused has given a defence statement, but also whenever a schedule is otherwise given or material is otherwise revealed to the prosecutor.

2.7.13

Disclosure Code of Practice—10 Disclosure of Material to Accused

10.1 Other than early disclosure under Common Law, in the magistrates’ court the streamlined certificate at the Annex (and any relevant unused material to be disclosed under it) must be disclosed to the accused either:

  • at the hearing where a not guilty plea is entered, or

  • as soon as possible following a formal indication from the accused or representative that a not guilty plea will be entered at the hearing.

10.1A If material has not already been copied to the prosecutor, and he requests its disclosure to the accused on the ground that:

  • it satisfies the test for prosecution disclosure, or

  • the court has ordered its disclosure after considering an application from the accused, the disclosure officer must disclose it to the accused.

10.2 If material has been copied to the prosecutor, and it is to be disclosed, whether it is disclosed by the prosecutor or the disclosure officer is a matter of agreement between the two of them.

10.3 The disclosure officer must disclose material to the accused either by giving him a copy or by allowing him to inspect it. If the accused person asks for a copy of any material which he has been allowed to inspect, the disclosure officer must give it to him, unless in the opinion of the disclosure officer that is either not practicable (for example because the material consists of an object which cannot be copied, or because the volume of material is so great), or not desirable (for example because the material is a statement by a child witness in relation to a sexual offence).

10.4 If material which the accused has been allowed to inspect consists of information which is recorded other than in writing, whether it should be given to the accused in its original form or in the form of a transcript is a matter for the discretion of the disclosure officer. If the material is transcribed, the disclosure officer must ensure that the transcript is certified to the accused as a true record of the material which has been transcribed.

10.5 If a court concludes that an item of sensitive material satisfies the prosecution disclosure test and that the interests of the defence outweigh the public interest in withholding disclosure, it will be necessary to disclose the material if the case is to proceed. This does not mean that sensitive documents must always be disclosed in their original form: for example, the court may agree that sensitive details still requiring protection should be blocked out, or that documents may be summarised, or that the prosecutor may make an admission about the substance of the material under section 10 of the Criminal Justice Act 1967.

2.7.13.1

Keynote

Disclosing Material to the Defence

The court can order disclosure of material which the prosecution contend is sensitive. In such cases it may be appropriate to seek guidance on whether to disclose the material or offer no evidence, thereby protecting the sensitive material or the source of that material (e.g. where informants or surveillance techniques are involved).

Forces may have instructions as to providing further copies when requested by the defence in relation to procedures and costs. It is suggested that where copies are provided, some proof of delivery should be obtained.

2.7.13.2

Keynote

Disclosure of Statements in Cases of Complaints against the Police

Statements made by witnesses during an investigation of a complaint against a police officer are disclosable; however, the timing of the disclosure may be controlled. In R v Police Complaints Authority, ex parte Green [2002] EWCA Civ 389, the Court of Appeal stated that there is no requirement to disclose witness statements to eye-witness complainants during the course of an investigation. The evidence of such complainants could be contaminated and, therefore, disclosure would risk hindering or frustrating the very purpose of the investigation. A complainant’s legitimate interests were appropriately and adequately safeguarded by his/her right to a thorough and independent investigation, to contribute to the evidence, to be kept informed of the progress of the investigation and to be given reasoned conclusions on completion of the investigation. However, a complainant had no right to participate in the investigation as though he/she were supervising it. The general rule was that complainants, whether victims or next of kin, were not entitled to the disclosure of witness statements used in the course of a police investigation until its conclusion at the earliest.

Police complaints and disciplinary files may also fall within sensitive material that does not have to be disclosed (Halford v Sharples [1992] 1 WLR 736). This would not apply to written complaints against the police prompting investigations or the actual statements obtained during the investigations, although immunity may be claimed in the case of a particular document by reason of its contents (R v Chief Constable of the West Midlands Police, ex parte Wiley [1995] 1 AC 274). However, the working papers and reports prepared by the investigating officers do form a class which is entitled to immunity and therefore production of such material should be ordered only where the public interest in disclosure of their contents outweighs the public interest in preserving confidentiality (Taylor v Anderton [1995] 1 WLR 447).

2.7.13.3

Keynote

Confidentiality

The defence may only use material disclosed to them under the 1996 Act for purposes related to the defence case; any other use will be a contempt of court. Once evidence has been given in open court, however, the material is available for other purposes.