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A Spotlight on Prosecution Disclosure

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A number of cases in 2018 have pointed the spotlight on disclosure in criminal cases, especially concerning those where the allegation is rape or other serious sexual assault, although the issues are not limited to allegations of this nature. A number of trials have collapsed or cases discontinued where it has become apparent that the prosecution have failed to disclose vital information which could have had an important bearing on the case and which, once assessed, has demonstrated that there is no longer a realistic prospect of conviction, which is the first key consideration in the Code for Crown Prosecutors as to whether a suspect should be, or continue to be, prosecuted – you can read more about this on Will I be Prosecuted? (How Decisions to Prosecute or Offer Out-Of-Court Disposals are Made).

Many cases dealt with by the Criminal Cases Review Commission (CCRC) concern failure of disclosure of prosecution material. The Chair of the CCRC, Richard Foster, put it this way: “All those involved in criminal justice know we have a major problem. I drew particular attention to non-disclosure in my 2015/16 Annual Report and I wrote to the Law Officers, Director of Public Prosecutions and the National Police Chiefs’ Council urging action. It is why I referred to non-disclosure at our 20th Anniversary Conference as “the biggest single current problem” affecting the right to a fair trial.” 

 

 

Why is Disclosure so Important?

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An efficient and properly conducted system of disclosure in criminal cases is fundamental to a fair system of criminal justice.

When a case is being investigated, the police or other investigating authority will carry out a number of enquiries. Depending on the nature of the case, witnesses will be spoken to, physical evidence will be gathered and subjected to scientific testing (fingerprints, DNA etc.), documents will be collected and examined, computers and mobile phones will be seized and interrogated, video evidence will be viewed, social media accounts will be accessed and information recovered. From this material the prosecution will produce its case and this will be served on the defence as the case against the accused. This is referred to as the ‘used’ material since it contains that material which the prosecution seek to rely upon to prove its case.

Unused Material

'This is what the rules on disclosure are all about, and why they are so important, because the investigatory authorities not only have access to the material which demonstrates guilt, but may also have access to the material which demonstrates innocence'

But what of all the other material? This is the ‘unused’ material. What if there is information gathered during the investigation which calls into question the case against the suspect, material which – if revealed to the defence and relied on in court – might make the difference between a verdict of guilty and a verdict of not guilty? This is what the rules on disclosure are all about, and why they are so important, because the investigatory authorities not only have access to the material which demonstrates guilt, but may also have access to the material which demonstrates innocence. For the prosecution simply to keep the information which is helpful to the accused to itself would lead to a jury not being able to consider all relevant evidence in a case and therefore to any conviction which resulted being considered unsafe.

Where Can the Law on Disclosure be Found?

The Criminal Procedure and Investigations Act 1996 (CPIA) Part I Disclosure and Part II Criminal Investigations contains the main statutory disclosure provisions.

Additional guidance for the proper disclosure of unused material can be found in:

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What is the Duty of Disclosure on the Prosecution in a Criminal Case?

The Initial Duty of Disclosure

The prosecution are under an initial duty of disclosure and must follow the disclosure test contained in s.3 CPIA, to ‘disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused.’

Section 3(2) of the CPIA defines ‘prosecution material’ as material (a) which is in the prosecutor’s possession, and came into his possession in connection with the case for the prosecution against the accused, or (b) which, in pursuance of a code operative under Part II [the Code of Practice], he has inspected in connection with the case for the prosecution against the accused. ‘Material’ includes objects and information (s.2 CPIA).

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This disclosure test means, in essence, that any material in the possession of the prosecution which may (from an objective standpoint) weaken the prosecution case or strengthen the defence case should be disclosed to the defence. This is what is referred to above as 'the golden rule'. The A-G’s Guidelines (paragraphs 6 to 8) give a number of examples of those matters which should be taken into consideration in deciding if disclosure is required and includes:

a. the use that might be made of the material in cross-examination;
b. its capacity to support submissions that could lead to: (i) the exclusion of evidence; (ii) a stay of proceedings, where the material is required to allow a proper application to be made; (iii) a court or tribunal finding that any public authority had acted incompatibly with the accused’s rights under the ECHR;
c. its capacity to suggest an explanation or partial explanation of the accused’s actions;
d. the capacity of the material to have a bearing on scientific or medical evidence in the case;
e. It should be borne in mind that while items of material viewed in isolation may not be reasonably considered to be capable of undermining the prosecution case or assisting the accused, several items together can have that effect;
f. Material relating to the accused’s mental or physical health, intellectual capacity, or to any ill-treatment which the accused may have suffered when in the investigator’s custody is likely to fall within the test for disclosure.

When Does the Duty to Disclose Commence?

The statutory duty under the CPIA commences once the defendant (in the Magistrates’ Court) has pleaded not guilty and the case has been adjourned for trial or (for cases going to the Crown Court) once the case has been sent for trial to the Crown Court (see s.1 CPIA). It lasts until the end of the trial (see s.7A CPIA; R (on the application of Nunn) v Chief Constable of Suffolk Constabulary and another [2014] UKSC 37; [2014] 2 Cr. App. R. 22; [2015] Crim. L.R. 76; see also section 7 of the Code of Practice). Before this time there is a common law duty of disclosure requiring the prosecution to disclose material reasonably thought capable of assisting a defendant, for example in bail applications or where it would be helpful in allowing a defendant to prepare his case.

The Investigation Process

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The Investigator, Officer in Charge, Disclosure Officer & Prosecutor

The Code of Practice issued under Part II s.23 CPIA contains detailed provisions about the investigation process and the collection of material. In a criminal investigation there will be an investigator (involved in conducting the investigation), an officer in charge of the investigation (responsible for directing the investigation and ensuring there are proper procedures for recording information and keeping records), a disclosure officer (responsible for examining retained material, revealing it to the prosecutor and revealing material to the defence at the prosecutor’s request) and a prosecutor (responsible for conducting the prosecution itself).

The functions of the investigator, the officer in charge and the disclosure officer are separate. In a simple case all of these functions may be carried out by a single person but in a more complex case by a number of people.

'the investigator should pursue all reasonable lines of inquiry, whether these point towards or away from the suspect'

The Code of Practice makes it clear that ‘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.’ (para 3.5.) The A-G’s Guidelines similarly state that, ‘A fair investigation involves the pursuit of material following all reasonable lines of enquiry, whether they point towards or away from the suspect. What is ‘reasonable’ will depend on the context of the case. A fair investigation does not mean an endless investigation: investigators and disclosure officers must give thought to defining, and thereby limiting, the scope of their investigations, seeking the guidance of the prosecutor where appropriate.’ (par 17.) Indeed, this guidance further states (para. 20) ‘Investigators are to approach their task seeking to establish what actually happened. They are to be fair and objective.’

Third Party Material

The duty to pursue all reasonable lines of enquiry (whether pointing towards or away from the suspect) might lead to the belief that there is material which may undermine the prosecution case and/or assist the defence held by a third party. In these circumstances guidance is provided in paragraphs 53 to 64 of the A-G’s Guidelines and paragraphs 44 to 53 of the Judicial Protocol. In cases of alleged child abuse detailed guidance is contained in the Child Abuse protocol (see the section above on where the law on disclosure can be found).

Duty to Retain, Inspect and Record Information

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There is a duty on the investigator to retain material which may be relevant to an investigation. The Disclosure Officer must inspect, view, listen to or search all relevant material that has been retained by the investigator and then provide a personal declaration to the effect that this task has been undertaken. A detailed examination of all material seized may be required but the A-G’s guidelines accept that in some cases a detailed examination of every item of material seized would be virtually impossible. In complex cases this makes it especially important for the defence to work with the prosecution and assist in clarifying the issues and those areas in which it properly believes there is material which should be disclosed. In those cases where the prosecution has recovered vast volumes of electronic material, the duty of providing initial disclosure is not rendered incapable of fulfilment by the physical impossibility of reading (and scheduling) each and every item of material seized; the prosecution is entitled to use appropriate sampling and search terms (R v R and others (Practice Note) [2015] EWCA Crim 1941; [2016] 1 Cr App R 20).

'There is a duty on the investigator to retain material which may be relevant to an investigation'

When in doubt as to the value of material, the disclosure officer must seek the prosecutor’s advice. This is explicit in the A-G’s Guidance: (para. 26) ‘Disclosure officers must specifically draw material to the attention of the prosecutor for consideration where they have any doubt as to Attorney General's Guidelines on Disclosure whether it might reasonably be considered capable of undermining the prosecution case or of assisting the case for the accused.’ And para 27: ‘Disclosure officers must seek the advice and assistance of prosecutors when in doubt as to their responsibility as early as possible. They must deal expeditiously with requests by the prosecutor for further information on material, which may lead to disclosure.’

The disclosure officer will provide the prosecutor with details of the material retained, the method for which (the use of schedules or a streamlined procedure in the Magistrates’ Court) is provided by the Code of Practice (paragraph 6). The A-G’s Guidelines (para. 29) make the point that prosecutors must thoroughly review that which is provided to them by the disclosure officers: ‘Prosecutors must review schedules prepared by disclosure officers thoroughly and must be alert to the possibility that relevant material may exist which has not been revealed to them or material included which should not have been. If no schedules have been provided, or there are apparent omissions from the schedules, or documents or other items are inadequately described or are unclear, the prosecutor must at once take action to obtain properly completed schedules. Likewise schedules should be returned for amendment if irrelevant items are included. If prosecutors remain dissatisfied with the quality or content of the schedules they must raise the matter with a senior investigator to resolve the matter satisfactorily.’

Once reviewed by a prosecutor the decision is made as to what will be disclosed to the defence. For Crown Court cases the disclosed material is listed on a schedule (MG6C). In Magistrates’ Court cases there is a streamlined procedure where the material to be disclosed is listed on a Disclosure Certificate.  The disclosed material can either be copied or, in more complex cases where there is a large amount of disclosed material, be made available for inspection.

The Continuing Duty of Disclosure

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Although there is an initial duty of disclosure on the prosecution, this duty is a continuing one and does not conclude until the verdict has been reached or the case is otherwise discontinued. This duty of continuing disclosure is imposed by s.7A of the CPIA as follows: The prosecutor must keep under review the question whether at any given time (and, in particular, following the giving of a defence statement) there is prosecution material which (a) might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, and (b) has not been disclosed to the accused.

'the prosecution must disclose material which may assist the defence/undermine the prosecution case at any stage of the case'

This means that the prosecution must disclose material which may assist the defence/undermine the prosecution case at any stage of the case, even if this material is only discovered at a late stage, such as during the trial itself. However, s.7A refers to the duty on the prosecution to review disclosure upon receipt of the Defence Statement.  The Defence Statement and its importance to the disclosure process is set out below.

The Defence Statement – the Defence Duty of Disclosure in Criminal Cases

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A Defence Statement is mandatory in Crown Court cases and optional (but sometimes valuable) in Magistrates’ Court cases. If you are unsure if your case is one which will remain in the Magistrates’ Court or one which can go to the Crown Court have a look at Which Court Will I Go To?

Section 6A of the CPIA provides the requirements of a Defence Statement which must be a written statement setting out:

(a) the nature of the accused’s defence, including any particular defences on which he intends to rely,

(b) the matters of fact on which he takes issue with the prosecution,

(c) in the case of each such matter, why he takes issue with the prosecution,

(d) particulars of the matters of fact on which he intends to rely for the purposes of his defence,

(e) any points of law (including any point as to the admissibility of evidence or an abuse of process) which he wishes to take, and any authority on which he intends to rely for that purpose.

(2) A defence statement that discloses an alibi must give particulars of it, including—

(a) 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;

(b) any information in the accused’s possession which might be of material assistance in identifying or finding any such witness in whose case any of the details mentioned in paragraph (a) are not known to the accused when the statement is given.

A Defence Statement must be served within 28 days of the prosecution providing initial disclosure (or purporting to do so) and in the Magistrates’ Court, if a decision is taken to serve a Defence Statement, this must be done within 14 days of the date when the prosecution complies with its duty of initial disclosure (or purports to do so).  Within these time limits an application may be made to extend time for service.

How can a Defence Statement help?

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A Defence Statement is not the same as a proof of evidence provided by a defendant to his legal team. A proof of evidence will often be a far more detailed document than a Defence Statement and may include matters which do not need to be disclosed in a Defence Statement. However, a Defence Statement not only sets out what the defence is that the defendant intends to rely on a trial, but crucially it narrows the issues by focusing on what the defendant disputes in the prosecution case. Once it is clear what the defence case is, it allows the prosecution to re-examine the material which has been collected in the course of the investigation and decide if, in light of the issues raised, if that material now needs to be disclosed.  Indeed, this is what the prosecution are required to do in light of the duty to keep disclosure under review.

'A Defence Statement not only sets out what the defence is that the defendant intends to rely on a trial, but crucially it narrows the issues by focusing on what the defendant disputes in the prosecution case'

Paragraph 31 of the A-G’s Guidelines provides that prosecutors should copy the defence statement to the disclosure officer and investigator as soon as reasonably practicable and prosecutors should advise the investigator if, in their view, reasonable and relevant lines of further enquiry should be pursued. If the defence statement does point to other reasonable lines of enquiry, further investigation is required and evidence obtained as a result of these enquiries may be used as part of the prosecution case or to rebut the defence.

Example of how a Defence Statement can assist disclosure

' the prosecution will review disclosure, the police now checking the phone in the specific knowledge of precisely the sort of text messages they are looking for'

To take an example, imagine that a defendant is charged with assault. He denies the assault in interview and is charged with the offence. When he is arrested his phone is seized from him and retained by the police. He later discloses to his defence team that the complainant has a long-standing dislike of him and the defendant believes he is the person responsible for sending him numerous text messages from an unidentified phone for several months before the alleged assault saying that he is going to set him up and get him arrested. This information can be set out in the Defence Statement. In these circumstances, and in light of the content of the Defence Statement, the prosecution will review disclosure, the police now checking the phone in the specific knowledge of precisely the sort of text messages they are looking for, amongst many thousands of texts that may be on the phone. If they locate any messages of this nature they should be disclosed to the defence because they undermine the case against the defendant and/or assist his case. Without the Defence Statement this evidence may well have been missed and the defendant would not have had valuable evidence to present in his defence in court. Further, once the police have discovered this evidence and are satisfied they were indeed sent by the complainant, this may well result in the prosecution taking the view that this is a case which should not be proceeded with to trial.

A little guidance on prosecution and defence engagement

'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'

It is for these reasons that the Judicial Protocol provides (para.15) that ‘The court will require the defence to engage and assist in the early identification of the real issues in the case and, particularly in the larger and more complex cases, to contribute to the search terms to be used for, and the parameters of, the review of any electronically held material (which can be very considerable).’ Further, at paragraph 16 it states: ‘A constructive approach to disclosure is a necessary part of professional best practice, for the defence and prosecution. This does not undermine the defendant’s legitimate interests, it accords with his or her obligations under the Rules and it ensures that all the relevant material is provided.’ (See also CrimPR Part 3 Case Management regarding cooperation between the prosecution and defence.)

The A-G’s Guidelines add to this (at paragraph 9): ‘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.’

The Code of Practice takes this further by providing (at para 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.’

It follows that a properly drafted Defence Statement has a crucial role to play in the disclosure of material in criminal cases.

Applications for Specific Disclosure

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If, despite a well drafted Defence Statement, the prosecution still do not disclose material or sufficient material which the defence believe exists, then an application can be made to the court to force the issue. This is known as an application for specific disclosure’ and also ‘a section 8 application’ because it is made under s.8 of the CPIA.

'If, despite a well drafted Defence Statement, the prosecution still do not disclose material or sufficient material which the defence believe exists, then an application can be made to the court to force the issue'

Section 8(2) CPIA provides that  ‘If the accused has at any time reasonable cause to believe that there is prosecution material which is required by section 7A to be disclosed to him and has not been, he may apply to the court for an order requiring the prosecutor to disclose it to him.’  An application can only be made under this section where a Defence Statement has been served (s.8(1) CPIA). This means that although in the Magistrates’ Court a Defence Statement is not mandatory, a section 8 application cannot be made unless a Defence Statement has been served.

The section requires the defence to have ‘reasonable cause to believe’ there is material which has not been disclosed, so it cannot be used as a speculative application or what lawyers like to call ‘a fishing expedition’.  In reality this type of application will only be required (and will only be condoned) where all reasonable efforts have been made to secure the material, both by formal means (a properly drafted Defence Statement) and informal means, namely contacting the prosecution and asking for the material (see paragraph 23 of the Judicial Protocol). It is also worth bearing in mind that prosecutors only need to disclose material which satisfies the disclosure test (undermines prosecution case or assists defence case) and not otherwise. The material sought must relate to a clear issue in the case as set out in the Defence Statement (para. 26 Judicial Protocol). The procedure for making a section 8 application is contained in CrimPR rule 15.5.

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Disclosure Failure by the Prosecution

Where, despite a properly prepared Defence Statement and all reasonable efforts to secure relevant disclosable material (including a section 8 application), the prosecution fail to make full and proper disclosure, the integrity of the trial process can be placed at risk. Indeed, the whole purpose of disclosure is to ensure that all admissible material can be placed before the court by both sides in order for the jury, magistrates or judge to make an informed decision in reaching a verdict and for the magistrates or judge to impose a proper sentence.

It follows that, ultimately, a prosecution failure to disclose unused material can lead to the Court of Appeal Criminal Division reaching the view that a guilty verdict is unsafe.  Failure to disclose prosecution material can also lead to the case being stopped, on an application by the defence, as an abuse of process.

Disclosure Failure by the Defence

As mentioned above, a properly drafted Defence Statement can be an excellent tool for ensuring that the prosecution focus on the issues and disclose relevant unused material. It is also a necessity if a section 8 application for specific disclosure is to be made. These are positive reasons for providing a proper Defence Statement.

If a Defence Statement is not served (in the Crown Court), or if a Defence Statement is deficient (e.g. it refers to a different defence to that which is advanced at trial) or served late then this may result in the jury or magistrates drawing an adverse inference against the defendant if they consider it proper to do so (s.11 CPIA).  The prosecution are likely to use any such failure in cross-examination to seek to expose weaknesses in the defence case and can comment on these matters in the closing speech.

Limits on Prosecution Disclosure – Sensitive Material and Public Interest Immunity

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There are certain types of evidence which are considered sensitive in that, if disclosed, would create a real risk of serious prejudice to an important public interest. The House of Lords in R v H [2004] UKHL 3; [2004] 2 Cr. App. R. 10 (in a quote set out at the top of this page) stated that “The golden rule is that full disclosure of [unused] material should be made.” They went on to say, however, that “Circumstances may arise in which material held by the prosecution and tending to undermine the prosecution or assist the defence cannot be disclosed to the defence, fully or even at all, without the risk of serious prejudice to an important public interest. The public interest most regularly engaged is that in the effective investigation and prosecution of serious crime, which may involve resort to informers and undercover agents, or the use of scientific or operational techniques (such as surveillance) which cannot be disclosed without exposing individuals to the risk of personal injury or jeopardising the success of future operations. In such circumstances some derogation from the golden rule of full disclosure may be justified but such derogation must always be the minimum derogation necessary to protect the public interest in question and must never imperil the overall fairness of the trial.”

'Circumstances may arise in which material ... cannot be disclosed to the defence, fully or even at all, without the risk of serious prejudice to an important public interest. '

An application to the court for a ruling on disclosure in these circumstances is known as a Public Interest Immunity (or ‘PII’) application. Its purpose is to avoid disclosing material to protect the public interest and the role of the court is to decide the minimum extent to which disclosure can be withheld to protect the public interest whilst maintaining the fairness of the trial.

The application is made under CrimPR rule 15.3 (see also Judicial Protocol paragraphs 54 and 55). The level of public interest attaching to the material will dictate the extent to which the nature of material in issue can be disclosed to the defence. In the most critical of cases the fact of the application will not be disclosed to the defence. Under rule 15.6 the defence are entitled to seek a review of any disclosure decision by the court in which they must describe the material that the defendant wants the prosecutor to disclose, and (ii) explain why the defendant thinks it is no longer in the public interest for the prosecutor not to disclose it.

The principles which will be applied by the court in deciding a PII application are contained in the case of R v H (above), such principles now being contained in the Judicial Protocol paragraph 54:

“When any issue of derogation from the golden rule of full disclosure comes before it, the court must address a series of questions:

(1) What is the material which the prosecution seek to withhold? This must be considered by the court in detail.

'The public interest most regularly engaged is that in the effective investigation and prosecution of serious crime, which may involve resort to informers and undercover agents, or the use of scientific or operational techniques (such as surveillance) which cannot be disclosed without exposing individuals to the risk of personal injury or jeopardising the success of future operations'

(2) Is the material such as may weaken the prosecution case or strengthen that of the defence? If No, disclosure should not be ordered. If Yes, full disclosure should (subject to (3), (4) and (5) below) be ordered.

(3) Is there a real risk of serious prejudice to an important public interest (and, if so, what) if full disclosure of the material is ordered? If No, full disclosure should be ordered.
(4) If the answer to (2) and (3) is Yes, can the defendant’s interest be protected without disclosure or disclosure be ordered to an extent or in a way which will give adequate protection to the public interest in question and also afford adequate protection to the interests of the defence?

This question requires the court to consider, with specific reference to the material which the prosecution seek to withhold and the facts of the case and the defence as disclosed, whether the prosecution should formally admit what the defence seek to establish or whether disclosure short of full disclosure may be ordered. This may be done in appropriate cases by the preparation of summaries or extracts of evidence, or the provision of documents in an edited or anonymised form, provided the documents supplied are in each instance approved by the judge. In appropriate cases the appointment of special counsel may be a necessary step to ensure that the contentions of the prosecution are tested and the interests of the defendant protected ... In cases of exceptional difficulty the court may require the appointment of special counsel to ensure a correct answer to questions (2) and (3) as well as (4).

(5) Do the measures proposed in answer to (4) represent the minimum derogation necessary to protect the public interest in question? If No, the court should order such greater disclosure as will represent the minimum derogation from the golden rule of full disclosure.

(6) If limited disclosure is ordered pursuant to (4) or (5), may the effect be to render the trial process, viewed as a whole, unfair to the defendant? If Yes, then fuller disclosure should be ordered even if this leads or may lead the prosecution to discontinue the proceedings so as to avoid having to make disclosure.

(7) If the answer to (6) when first given is No, does that remain the correct answer as the trial unfolds, evidence is adduced and the defence advanced? It is important that the answer to (6) should not be treated as a final, once-and-for-all, answer but as a provisional answer which the court must keep under review.” ([2004] 2 AC 134, at 155-156)

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Disclosure Best Practice

Proper disclosure of unused material goes to the heart of the criminal justice system. No trial should commence until disclosure has been carried out effectively in accordance with the CPIA and the guidelines. Even during the trial itself there is a continuing duty of disclosure on the prosecution. For disclosure to operate effectively those tasked with disclosure responsilities need adequate training so as to understand their duties and sufficient time to carry them out. Disclosure officers need to communicate effectively with prosecutors over areas of uncertainty and prosecutors need to be vigilant of errors, or potential errors, in the disclosure regime. From a defence perspective, a properly drafted Defence Statement and effective communication with the prosecution will clarify the areas of dispute and focus on what is relevant for the purposes of disclosure and enable, where necessary, an effective application for specific disclosure to be made. Failure by the prosecution and defence to focus on these tasks in a timely and efficient manner is likely to result in miscarriages of justice.


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