Criminal Litigation - Disclosure of unused material and defence statements
1. investigator’s duty to retain unused material (detailed knowledge not required), prosecutor’s duty of disclosure and the test for determining whether unused material should be disclosed by the prosecution
2. time li...
Syllabus 5: Disclosure of unused material and defence statements
1. Statutory Regime
[D9.2, D9.4]
s.3 CPIA 1996
- Compulsory in relation to cases sent to the CC to be tried on indictment. (Begins with the arrival
of the case and end with the conclusion of the trial).
- Applies in summary trials including youth court where the defendant has pleaded NG.
Stage approach to the disclosure of unused prosecution material and the defence case:
(a) Statutory duty obliges police officers investigating an offence to record and retain info
(b) Material which is relevant to the investigation but is not expected to form part of the pros case
should be provided by the police to the pros for review.
(c) Pros must apply statutory test in s.3 and must disclose material meeting this test.
(d) Defence have duty to inform pros of the case they intend to present at trial
(e) Pros throughout the proceedings are under a duty to disclose material which meets the statutory
test for disclosure
(f) Following service of DS and any further disclosure an accused may make further application
for disclosure.
2. Investigation Stage
[D9.6, D9.8, D9.9, D9.12]
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.
The CJIA Code sets out functions for individuals within a criminal investigation and their
responsibilities.
Duty to record
Investigators must record all material which may be relevant to the investigation, and which is not
already recorded (includes negative information).
Duty to reveal material to the prosecutor
Retained material which may be relevant to an investigation but which the disclosure officer believes
will not form part of the prosecution case must be listed on a schedule. (CC = MG6C, MC=
streamlined disclosure certificate).
Sensitive material (give rise to a real risk of serious prejudice to an important public interest if it were
to be disclosed) should be listed in a separate schedule or exceptionally disclosed to the prosecutor
separately.
3. Prosecution Disclosure
[D9.13-D9.17, D9.19- D9.28]
Prosecution’s duty to review and disclose is a continuing one (s.7A). They must ensure that all
material which ought to be disclosed is disclosed to the defence.
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