Disclosure of Evidence

• Disclosure can be grouped into two types of material: material the prosecution will use in court to prove the case, and all other material not forming part of the prosecution but might have a bearing on the decision the court makes.
• Relevant material includes anything which may affect the credibility of witnesses, including previous convictions, statements made by them about the offence, and their relationship with the defendant.
• The prosecutor must disclose any unused material that is relevant to the defence case or could undermine the prosecution's case.
• The defence must disclose any evidence they intend to rely upon at trial or that could damage the prosecution's case.
• What are the three pieces of legislation relevant to Disclosure of Evidence?

  Criminal Procedure and Investigations Act (1996), parts I and II; CPIA Code of Practice and Attorney-General’s Guidelines on Disclosure for Investigators, Prosecutors and Defence Practitioners (A-G’s guidelines).
• What does Criminal Procedure and Investigations Act (1996) Part I set out?

  Procedures for disclosure and the effects of failing to comply with the Act.
• What does Criminal Procedure and Investigations Act (1996) Part II set out?

  Duties of police officers in relation to the disclosure provisions.
• What does the CPIA Code of Practice set out?

  The manner in which police are to record, retain and reveal to the prosecutor material obtained in investigation and which may be relevant to the investigation. The Code assumes defence have already been informed of the details.  
• Where defence are obliged to make disclosure to prosecution but fail to do so, what may happen according to S11(5)?

  Court or jury may draw their own inferences in deciding defendant’s guilt or innocence.
• What does the defence not have to do, if prosecution fails to comply with CPIA/ disclosure?

  Does not have to make a defence, and no inference will be made about their lack of defence.
• What may happen if prosecution fails to comply to CPIA/ disclosure?

  Defence doesn't have to make a defence; court may stay proceedings on the grounds of abuse of process (S10); further adjournment; may lead to an action for damages or other such relief, as the court sees fit, under the Human Rights Act 1998 and Article 6 of the European Convention on Human Rights, the right to a fair trial.
• If there is sufficient credible evidence produced by prosecution, without missing evidence, which could justify safe conviction, the trial should proceed. Defence may seek to persuade the jury or magistrates not to convict because some of prosecution's evidence was not available, through no fault of the defendant.
• What happens if the court is satisfied that prosecution deliberately withheld evidence?

  It may stay prosecution
• Failure to disclose may result in convictions being overturned, e.g. where CPS was not informed a witness’s evidence was unreliable.
• True or false: defence is entitled to see initial details of prosecution case?

  True. It assists them deciding whether to plead guilty or not. Without knowing prosecution case’s strengths and weaknesses, defence is unlikely to agree on what to plead. It is in public interest that guilty pleas are entered or indicated ASAP.
• When is the last opportunity for prosecution to provide initial details to defence for an offence triable at magistrates?

  No later than the beginning the day of the first hearing
• Where offence can be tried at Mag and the defendant has been in police custody immediately before hearing, what information should defence be provided with?

  Summary of circumstances and defendant’s criminal record.
• Where offence can be tried at Mag and the defendant has NOT been in police custody immediately before hearing, what information should defence be provided with?

  i. Summary of circumstances;

  ii. Any account given by defendant in interview;

  iii. Any written witness statement or exhibit which prosecutor considers material to plea;

  iv. Defendant’s criminal record;

  v. Victim statement, or statement from victim’s family or others.
• Where offence can be tried at Crown court, what does Article 6(3)(b) of the European Convention on Human Rights state?

  The accused is entitled to adequate time for preparation of their defence.
• Where offence can be tried at Crown court, whatinitial details have been provided to the defence (by the prosecutor, who receives it from police)?

  §  Custody record;

  §  Interview tapes;

  §  First descriptions, where relevant;

  §  Significant info that might affect a bail decision or enable the defence to contest the allocation hearing;

  §  Material relevant to sentence (e.g. which may mitigate the seriousness of the offence or assist the accused to lay blame wholly or partially on another);

  §  Statements and/ or summary of prosecution cases;

  §  Any video evidence.
• Where a witness refuses to put incriminating evidence into their statement for fear of repercussion and police notified prosecution, but prosecution hadn’t notified defence that the statement was partial account, the Court of Appeal found the statement to be untruthful. The witness should have been told to make a full statement or they should have been abandoned as a witness. They should never have been allowed to make a partial statement.
• True or false: Where a witness refused to put incriminating evidence into his statement for fear of repercussion, he should never have been allowed to make a partial statement?


  True. He should either have made a complete statement, or been withdrawn as a witness
• S1 of CPIA 1996 applies to all cases other than those where defendant pleads guilty at Magistrates
• True or false: a criminal investigation could begin before the offence was committed?

  True. E.g. surveillance or where a series of offences was committed – some before and some after the appointed day.
• What is the threshold for OIC to make enquiry of third party about potential relevant material?

  OIC must have a reason to believe this material exists, that it may be relevant, and that the third party possesses it.
• Duties of disclosure are to...

  o Examine, inspect, view or listen to all relevant material, including when it doesn't form prosecution case;

  o Create schedules fully describing material;

  o Identify all material which satisfies disclosure test on MG6E;

  o Submit schedules to prosecutor;

  o Allow prosecutor to inspect material;

  o Continually review material, particularly after defence statement;

  o Certify all retained material has been revealed to prosecutor in accordance with the Code;

  o Where prosecutor requests, give the accused a copy of material or allow the accused to inspect it.
• Who may initiate and carry out pre-charge engagement?

  Investigator or prosecutor
• Which MG form is for material that may undermine prosecution and/ or assist defence?

  MG6E
• What material should be included on an MG6E?

  Material that may undermine prosecution, cast doubt on suspect’s guilt, assist defence or implicates another.
• What are some examples of material that could go on an MG6E?

  o   CCTV that does not record crime/ location/ suspect/ circumstances that are consistent with the prosecution case;

  o   Where a number of people who were present saw nothing;

  o   Where finger-mark cannot be identified as belonging to a known suspect;

  o   Any other failure to match a crime scene sample with one taken from accused.
• Where a DCI has countersigned interview notes which had been wrongly rewritten, the court held the resulting disciplinary action should have been disclosed. Dishonesty in police officers involved in an investigation should be shared with prosecutor
• Where access to third party material that is believed to be relevant to the case is declined or refused, and it is believed it is reasonable to seek production BEFORE a suspect is charged, what can an officer do?

  Make an application under sch 1 of PACE (special procedure material).
• When would an officer apply for production order under Sch 1 of PACE (special procedure material)?

  Where access to third party material that is believed to be relevant to the case is declined or refused and the suspect has not been charged
• Where suspect has been charged and third party refuses to produce material, what can officers do?

  Apply for a witness summons from court.
• When might police apply for a witness summons from court?

  When a third party refuses to produce relevant material and the suspect has been charged
• Whoever seeks production of third party material must satisfy the justices that the material has a real possibility of being relevant
• OIC cannot make speculative enquiry regarding third party material. There must be some reason to believe the third party has this material.
• Prosecution’s knowledge of relevant third party material may be enough to allow defence access.
• True or false: third party material held abroad cannot be requested by police?

  False. All reasonable steps to obtain it must be taken
• True or false: defence should be informed of all steps to obtain third party material?

  True - and the results of these efforts