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III TEMPLE GARDENS
UNUSED MATERIAL AND DISCLOSURE
SPEAKER: MISS ADRIENNE KNIGHT
ARCHBOLD CHAPTER 12
ARCHBOLD SUPPLEMENT-ATTORNEY GENERALS GUIDELINES 2005/2011
ANNEX A AND N
CRIMINAL PROCEDURE AND INVESTIGATION ACT 1996 AS AMENDED.
CRIMINAL PROCEDURE AND INVESTIGATIONS ACT 1996 (CODE OF PRACTICE)
ORDER 2005 (S.I. 2005 NO. 985).
A PROTOCOL FOR THE CONTROL AND MANAGEMENT OF UNUSED MATERIAL
IN THE CROWN COURT ISSUED IN FEBRUARY 2006 BY LORD JUSTICE THOMAS
THE DISCLOSURE MANUAL www.cps.gov.co.uk
REVIEW OF DISCLOSURE IN CRIMINAL PROCEEDINGS www.judiciary.gov.uk
1.
INTRODUCTION: Quotes from the Attorney General and others
“The "golden rule" is that fairness requires full disclosure should be made of all material
held by the prosecution that weakens its case or strengthens that of the defence.”
R. v. H. and C. [2004] 2 A.C. 134 at 147:
“Fairness ordinarily requires that any material held by the prosecution which weakens its case
or strengthens that of the defendant, if not relied on as part of its formal case against the
defendant, should be disclosed to the defence. Bitter experience has shown that miscarriages
of justice may occur where such material is withheld from disclosure.”
“Handing the defence the “keys to the warehouse” has been the cause of many gross abuses
in the past, resulting in huge sums being run up by the defence without any proportionate
benefit to the course of justice. These abuses must end.”
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2.
THE DUTY TO GATHER AND RECORD UNUSED MATERIAL
N54 Archbold Supplement
For the statutory scheme to work properly, investigators and disclosure officers responsible
for the gathering, inspection, retention and recording of relevant unused prosecution material
must perform their tasks thoroughly, scrupulously and fairly. In this, they must adhere to the
appropriate provisions of the CPIA Code of Practice.
CRIMINAL PROCEDURE AND INVESTIGATIONS ACT 1996 (CODE OF PRACTICE)
ORDER 2005 (S.I. 2005 NO. 985).
A248. Archbold Supplement
28. Relevant....Investigators must retain material that may be relevant to the investigation.
However, it may become apparent to the investigator that some material obtained in the
course of an investigation because it was considered potentially relevant, is in fact incapable
of impact. It need not then be retained or dealt with in accordance with these Guidelines,
although the investigator should err on the side of caution in coming to this conclusion and
seek the advice of the prosecutor as appropriate.
Relevant.. “…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.”
3.
WHAT ELSE SHOULD BE RECORDED ON THE SCHEDULE?
Paragraph 3.5 of the Code of Practice. Archbold Supplement Annex A
“an investigator should pursue all reasonable lines of inquiry, whether these point towards or
away from the suspect”.
Paragraph 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.”
4.
DISCLOSURE LAW
Parts I and II of the CPIA 1996, as amended by the CJA 2003.
Part I (ss.1-21) has created a staged approach
(initial prosecution disclosure, defence disclosure, continual review by the prosecution).
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Part II (ss.22-27) provides for a code of practice for regulating action the police must take in
recording and retaining material obtained in the course of a criminal investigation and
revealing it to the prosecution for a decision on disclosure.
The Attorney-General issued new guidelines on disclosure of information in criminal
proceedings, also taking the 2003 Act amendments into account, in April 2005.
Supplemented by further guidelines in respect of digitally stored material on July 14, 2011.
5.
DISCLOSURE PRIOR TO INITIAL DISCLOSURE.
(Which may effect bail, abuse of process, dismissal etc)
AG Guidelines A-253 Archbold Supplement)
6.
INITIAL DUTY OF PROSECUTOR TO DISCLOSE-
SECTION 3 CRIMINAL PROCEDURE AND INVESTIGATION ACT 1996. ATTORNEY
GENERALS GUIDELINES. ARCHBOLD APPENDIX A AND N
The prosecutor must(a)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, or
(b)give to the accused a written statement that there is no material of a description mentioned
in paragraph (a).
The correct test for disclosure will depend upon the date the relevant criminal investigation
commenced.
7.
WHAT SHOULD THE PROSECUTOR DISCLOSE?
The disclosure test refers to providing the defence with copies of, or access 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.
Prosecutors will only be expected to anticipate what material might weaken their case or
strengthen the defence in the light of information available at the time of the disclosure
decision, and this may include information revealed during questioning.
Material that should fulfil the disclosure test: Inconsistencies get a special mention
(a)by the use to be made of it in cross-examination; or
(b)by its capacity to support submissions that could lead to:
(i)the exclusion of evidence; or
(ii)a stay of proceedings; or
(iii)a court or tribunal finding that any public authority had acted incompatibly with the
accused ‘s rights under the ECHR; or
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(c)by its capacity to suggest an explanation or partial explanation of the accused's actions.
Examples of material that might reasonably be considered capable of undermining the
prosecution case or of assisting the case for the accused are:
i.Any material casting doubt upon the accuracy of any prosecution evidence.
ii.Any material which may point to another person, whether charged or not (including a coaccused) having involvement in the commission of the offence.
iii.Any material which may cast doubt upon the reliability of a confession.
iv.Any material that might go to the credibility of a prosecution witness.
v.Any material that might support a defence that is either raised by the defence or apparent
from the prosecution papers.
vi.Any material which may have a bearing on the admissibility of any prosecution evidence.
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 .
8.
INADEQUATE DISCLOSURE
AG
“Disclosure is one of the most important issues in the criminal justice system and the
application of proper and fair disclosure is a vital component of a fair criminal justice system.
This amounts to no more and no less than a proper application of the Criminal Procedure and
Investigations Act 1996 (CPIA) recently amended by the Criminal Justice Act 2003.
“This means that the disclosure regime set out in the Act must be scrupulously followed.
These Guidelines build upon the existing law to help to ensure that the legislation is operated
more effectively, consistently and fairly”
Speakers observation-It still isn’t working!
Eg
Regina v Sadakat Ali Malook[2011] EWCA Crim 254
Olu, Wilson & Brooks [2010] EWCA Crim 2975
9.
AND WHO IS TO BLAME?
“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 scheme of the Act 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”.
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10.
THE DEFENCE STATEMENT
A-245 Attorney General
‘A comprehensive defence statement assists the participants in the trial to ensure that it is fair.
The trial process is not well served if the defence make general and unspecified allegations
and then seek far-reaching disclosure in the hope that material may turn up to make them
good. The more detail a defence statement contains the more likely it is that the prosecutor
will make an informed decision about whether any remaining undisclosed material might
reasonably be considered capable of undermining the prosecution case or of assisting the case
for the accused, or whether to advise the investigator to undertake further enquiries. It also
helps in the management of the trial by narrowing down and focussing on the issues in
dispute. It may result in the prosecution discontinuing the case. Defence practitioners should
be aware of these considerations when advising their clients.
Judges must, of course, be alert to ensure that defendants do not suffer because of the faults
and failings of their lawyers, but there must be a clear indication to the professions that if
justice is to be done, and if disclosure to be dealt with fairly in accordance with the law, a full
and careful defence case statement is essential.’
11.
SECTION 8 APPLICATION
The procedure for the making of such a written application is set out in the Criminal
Procedure Rules, Criminal Procedure Rules 2011 (S.I. 2011 No. 1709), r.22.5
Application by accused for disclosure
(1)This section applies where the accused has given a defence statement under section 5, 6, or
6B and the prosecutor has complied with section 7A(5) or has purported to comply with it or
has failed to comply with it.
(2)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.
12.
PUBLIC INTEREST IMMUNITY
PII
R. v. H. [2004] 2 A.C. 134, HL, as follows:
“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
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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”
Categories Listed in the Code of Practice
Archbold 12-33
The list of examples of sensitive material provided in the code of practice under Part II of the
CPIA 1996, para. 6.12, reads as follows (numbering added):
(i)material relating to national security;
(ii)material received from the intelligence and security agencies;
(iii)material relating to intelligence from foreign sources which reveals sensitive intelligence
gathering methods;
(iv)material given in confidence;
(v)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;
(vi)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;
(vii)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;
(viii)material whose disclosure might facilitate the commission of other offences or hinder
the prevention and detection of crime;
(ix)material upon the strength of which search warrants were obtained;
(x)material containing details of persons taking part in identification parades;
(xi)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;
(xii)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;
(xiii)material relating to the private life of a witness.
13.
THIRD PARTY MATERIAL
Within the U.K.
A-274
The CPIA code and the AG's Guidelines makes clear the obligation on the prosecution
to pursue all reasonable lines of enquiry in relation to material held by third parties
within the U.K. (see above paragraph 3)
A252.
If as a result of the duty to pursue all reasonable lines of enquiry, the investigator or
prosecutor obtains or receives the material from the third party, then it must be dealt with in
accordance with the CPIA 1996, i.e. the prosecutor must disclose material if it meets the
disclosure tests. , subject to any public interest immunity claim.
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A-252 (51-53)
Material not in the possession of an investigator or prosecutor falls outside the CPIA 1996. In
such cases the Attorney General's Guidelines on Disclosure prescribe the approach to be
taken to disclosure of material held by third parties as does the judicial disclosure protocol.
(Protocol required a police officer familiar with the facts of a case to examine any social
services records relating to a complainant)
If the third party still does not comply different tests apply
The disclosure of unused material that has been gathered or generated by a third party is an
area of the law that has caused some difficulties. This is because there is no specific
procedure for the disclosure of material held by third parties in criminal proceedings,
although the procedure under section 2 of the Criminal Procedure (Attendance of Witnesses)
Act 1965 or section 97 of the Magistrates' Courts Act 1980 is often used in order to effect
such disclosure. It should, however, be noted that the test applied under both Acts is not the
test to be applied under the CPIA. These two provisions require that the material in question
is material evidence, i.e., immediately admissible in evidence in the proceedings. R. v.
Reading JJ., ex p. Berkshire County Council [1996] 1 Cr.App.R. 239, R. v. Derby
Magistrates' Court, ex p. B [1996] A.C. 487 and R. v. Alibhai [2004] EWCA Crim. 681).
R v P [2010] EWCA Crim 2438-Social Services Files and Protocol.
Held, allowing the appeal, that the undisclosed material within the social services files
contradicted a number of the assertions made by the complainants at trial. That material
would have had a considerable bearing on the strength of the points put to the complainants
by the defence in cross-examination and on the jury's consideration of the complainants'
credibility. The absence of that contemporaneous material, which went to the heart of the
issues that the jury had to decide, had to have created the real risk that the jury would have
reached a different conclusion. Accordingly, the convictions were unsafe and had to be
quashed. It was to be hoped that the regrettable history of the instant case would not be
repeated now that the national Protocol required a police officer familiar with the facts of a
case to examine any social services records relating to a complainant to see if there was any
material contained within them which undermined the prosecution case or was helpful to the
defence, and to ensure that any such material was brought to the attention of the prosecutor so
that it could be disclosed to the defence. The instant case undoubtedly provided a salutary
lesson to all charged with the responsibility of carrying out that task as to how grave the
consequences could be if it was not carried out diligently
Outside the U.K.
A-275 (58-63)
The obligation on the investigator and prosecutor under the CPIA code and the AttorneyGeneral's Guidelines to pursue all reasonable lines of enquiry also applies to material held
overseas
R. v. Flook [2010] 1 Cr.App.R. 30, CA – Third Party Disclosure overseas
R v R [2008]EWCA Crim 678
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DISCLOSURE OF DIGITALLY-STORED MATERIAL
A-258
The Attorney-General has issued guidelines on the disclosure of digitally-stored
material.(2011) The objective is to set out how digital material satisfying the test for
disclosure can best be identified and disclosed to the defence without imposing unrealistic or
disproportionate demands on the investigator or prosecutor.
A259
The guidelines are intended to supplement the Attorney General's Guidelines on Disclosure
(reissued in April 2005) and specifically paragraph 27. Paragraph 27 explains that the
disclosure officer's obligation to inspect retained material may be fulfilled in relation to
digitally stored material by using search terms or dip sampling methods, so long as the
material is described on the schedules as clearly as possible and the manner and extent of the
inspection is recorded along with the justification for adopting that approach.
15.
CONTINUING DUTY OF PROSECUTOR TO DISCLOSE
A-246
Section 7A of the Act imposes a continuing duty upon the prosecutor to keep under review at
all times the question of whether there is any unused material which might reasonably be
considered capable of undermining the prosecution case against the accused or assisting the
case for the accused and which has not previously been disclosed.
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RESPONSIBILITIES
Investigators and disclosure officers
A-248.
23.
Investigators and disclosure officers must be fair and objective and must work
together with prosecutors to ensure that disclosure obligations are met. A failure to take
action leading to inadequate disclosure may result in a wrongful conviction. It may
alternatively lead to a successful abuse of process argument, an acquittal against the weight
of the evidence or the appellate courts may find that a conviction is unsafe and quash it.
Speakers Observation – Isnt it a little worrying that the AG felt the need to tell the police this!
24. Officers appointed as disclosure officers must have the requisite experience, skills,
competence and resources to undertake their vital role. In discharging their obligations under
the Act, code, common law and any operational instructions, investigators should always err
on the side of recording and retaining material where they have any doubt as to whether it
may be relevant.
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Prosecutors
A-249
32. Prosecutors must do all that they can to facilitate proper disclosure, as part of their
general and personal professional responsibility to act fairly and impartially in the interests of
justice and in accordance with the law.
Speakers Observation –Same as above
33. 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 the
prosecutor must at once take action to obtain properly completed schedules.
Prosecution advocates
A-250
42. Prosecution advocates should ensure that all material that ought to be disclosed under the
Act is disclosed to the defence. However, prosecution advocates cannot be expected to
disclose material if they are not aware of its existence. As far as is possible, prosecution
advocates must place themselves in a fully informed position to enable them to make
decisions on disclosure.
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THE FUTURE
Review of Disclosure in Criminal Proceedings – Lord Justice Gross for the Lord Chief
Justice www.judiciary.gov.uk
Commissioned as a result of concerns raised by Judges and practitioners.
THE END