Disclosure stages

Disclosure of unused material in criminal investigations

1. Where a criminal investigation began on or after 4 April 2005, disclosure to the defence takes place in the following stages:

Stage 1: Initial disclosure by the prosecution: This requires the prosecution to disclose any unused material which might reasonably be considered capable of undermining the prosecution case or of assisting the case for the accused.
Stage 2: commonly referred to as "Defence disclosure": This is made by a defence statement (sometimes referred to as a "defence case statement"), which is mandatory in Crown Court cases and voluntary in magistrates' court cases. The defence also have to disclose to the prosecutor and the court advance details of any witnesses they intend to call at a trial (see paragraph 14 below).
Stage 3: Continuing duty of disclosure by the prosecution: The prosecutor must keep under review throughout the criminal proceedings the question of whether there is material which might reasonably be considered capable of undermining the prosecution case or of assisting the case for the accused. This duty specifically arises following receipt of a defence statement and when details of the issues in dispute in a prosecution have been recorded on the effective trial preparation form.

The disclosure test

2. The initial disclosure test is an objective test. Material must be disclosed if it "might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused". What may assist the accused has to be objectively assessed from any available prosecution material, including what is said by the accused when questioned in interview by HSE and/or the police. The Guidelines on disclosure develop this further, stating that:

It should also 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.

It includes material which has the capacity to be used in cross-examination, to support a defence application to stay the proceedings for abuse of process, to support submissions to exclude evidence or to show that a public authority has acted incompatibly with the accused rights under Human Rights legislation. Legal advice may be needed to enable a disclosure officer to assess whether material falls into any of these categories.

3. Some examples of material which may undermine the prosecution case or assist the defence are:

A witness statement which contradicts or casts doubt on other evidence on which HSE intends to rely
A notebook entry that is inconsistent with the investigator's final conclusions
A series of measurements of airborne solvent levels, one or more of which are significantly lower than the majority
A draft expert statement that indicates a formed view which conflicts wholly or partly with the final opinion
A draft witness statement which differs in a material particular from the final signed version

The disclosure officer identifies this material by listing it on the disclosure officer's report (for more details see the section on "Preparing the schedules". It should be noted that several items considered together may have the effect of undermining the prosecution case or of assisting the defence, even if they would not satisfy the disclosure test when viewed individually.

4. If material does not meet the test for disclosure, there is no requirement to disclose it. Indeed, it is the prosecution's statutory responsibility to carry out disclosure in accordance with the CPIA regime. It is not acceptable to abdicate this responsibility by allowing the defence to inspect (or providing the defence with copies of) everything on the schedules of non-sensitive material, irrespective of whether the material satisfies the relevant test for disclosure.

5. For investigations commencing before 19 March 2015, initial disclosure should be carried out by the prosecutor as soon as reasonably practicable after a not guilty plea in the magistrates' court, or after sending or transfer of cases to the Crown Court. At the same time as disclosing material to the defence, or serving a statement that there is no such material to disclose, the prosecutor must also inform the court (Rule 22.2 Criminal Procedure Rules 2014 ("CPR").

For investigations commencing on or after 19 March 2015, where the accused is charged with or summonsed for a summary offence or an either way offence which 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 the format provided in the revised Code.

HSE's Material and Evidence Management Tool (MEMT) can assist in the production of the schedules. The certificate, together with any disclosable material, must be served on the accused at the hearing where the not guilty plea is entered. If a guilty plea is expected, but the accused actually enters a not guilty plea, the disclosure officer must ensure that the certificate is completed as soon as reasonably practicable after the plea. If there is any sensitive material, the usual CP2 form should be used to reveal it to the prosecutor.

6. However the Guidelines require that prosecutors must always be alive to the need, in the interests of justice and fairness in the particular circumstances of any case, to make disclosure before the duty arises under the CPIA. This covers the situation where there is material known to the disclosure officer that may assist the defence with the early preparation of their case. The example given in the Code is where a key witness has previous convictions or where a witness has withdrawn a statement. In such cases, a note must be made in the investigation report (IMPACT: Evidential Factors: Section (ii): Lines of Defence and potential weaknesses in the prosecution case) and the material must be disclosed to the prosecutor. Therefore, for investigations commencing on or after 19 March 2015, if the accused is likely to plead guilty, a certificate that there is nothing to disclose under common law must still be completed, or appropriate disclosure given, if the accused is likely to plead not guilty, the appropriate material will be included in the streamlined disclosure certificate procedure.

Defence disclosure

7. Section 33 CJA 2003 inserted section 6A into the CPIA, requiring a defendant in all trials before the Crown Court to disclose details of their defence. It is a voluntary process in cases to be heard by magistrates.

8. Defence disclosure takes the form of a defence case statement. Both the Guidelines and the Protocol emphasise that defence engagement with the disclosure process should be "early and meaningful", and that the defence statement should be "clear and detailed". The Protocol states that judges should investigate inadequate defence statements and give appropriate warnings. The Protocol does also make it clear that judges should be similarly proactive in monitoring the prosecution process.

The defence statement should:

Set out the nature of the accused's defence, including any particular defences on which they intends to rely;
Indicate the aspects of the prosecution case with which the defendant takes issue;
Set out, in the case of each such matter, why they take issue with the prosecution;
Indicate any point of law (including any point as to the admissibility of evidence or an abuse of process) which they wish to take, and any authority on which they intend to rely for that purpose;
Give particulars of any alibi, including the name, address and date of birth of any witness who is able to give evidence in support of the alibi, or as many details as are known to the accused when the statement is given;
Provide any information in the accused's possession which might be of material assistance in identifying any such witness.

9. Whenever a defence solicitor provides a defence statement on behalf of an accused, it will be deemed to be given with the authority of the solicitor's client. Defence solicitors should ensure that statements are agreed with the defendant before being served. Best practice is that the accused should show agreement with the contents of the statement by signing it.

10. If the accused is a body corporate, anyone signing the statement should have written authorisation from the company to sign on its behalf.

11. A defence statement should be served on the prosecution and the court in accordance with the following time limits:

Compulsory disclosure (Crown Court): within a period expiring at the end of 28 days
Voluntary disclosure (Magistrates' court): within a period expiring at the end of 14 days

In these cases, the relevant period begins with the day on which the prosecutor complies or purports to comply with the duty of initial disclosure.

This time period can be extended by order of the court on the application of the accused and if it is satisfied it would be unreasonable for the accused to comply with the original time limit. Any application to extend the period must be made within the relevant period (14 or 28 days), specify the grounds on which it is made and the number of days extension applied for.

12. If the defence statement is inadequate, a disclosure officer and/or prosecutor will not be able to make a properly informed decision about whether any unused material that has not been disclosed might assist the defence case, or whether the investigator should undertake any further enquiries. In these circumstances, the disclosure officer can, via the prosecutor:

request more information; and
inform the defence that the inadequacy of the defence disclosure will be made known to the court.

It is also possible for the prosecution to apply to the trial judge to bring the inadequacy of the defence statement to their attention. This should be discussed with the prosecutor.

13. Following service of a defence statement, the defence may apply to the court for additional disclosure (pursuant to section 8 CPIA) if they have reasonable cause to believe that the prosecution holds material which it is required to disclose, but has not done so.

14. Section 34 of the 2003 Act inserted section 6C into the Criminal Procedure and Investigations Act 1996, requiring the defence to give the prosecutor and the court advance details ie name, address and date of birth of any witnesses they intend to call at a trial. This allows the prosecution to check, for example, whether the witness has any relevant previous convictions.

15. In certain circumstances the investigator may interview such witnesses if they consent (see the section on witness statements) for further guidance.

16. These witness disclosure requirements are mandatory in both the Crown Court and the magistrates' court and apply to any case in which the accused pleads not guilty in the Magistrates Court on or any case which is sent to the Crown Court. The defence should comply in accordance with the following time limits:

Compulsory disclosure (Crown Court): within a period expiring at the end of 28 days
Voluntary disclosure (Magistrates' court): within a period expiring at the end of 14 days

In these cases, the relevant period begins with the day on which the prosecutor complies or purports to comply with the duty of initial disclosure.

The same provisions for extension of the time limit apply as for service of defence case statements.

17. Where the accused fails to comply with the witness disclosure requirement, the same sanctions will be available as for other defence disclosure failures (adverse comment by any party to the proceedings and adverse inference on the part of the court, but not committal for contempt of court).

Duty of continuing review and disclosure

18. Section 7A CPIA imposes on the disclosure officer and prosecutor a requirement to undertake a process of continual review throughout the prosecution process, applying the disclosure test to ensure whether additional disclosure is required. This must be done particularly on receipt of a defence statement and when details of the issues in dispute in a prosecution have been recorded on the effective trial preparation form. If this review reveals material which satisfies the disclosure test and has not previously been disclosed, the disclosure officer must identify it to the prosecutor by scheduling any material which is now considered relevant by adding to the original disclosure schedule on MEMT (and numbering accordingly), flagging up which items are additional and identifying any further material satisfying the disclosure test by listing it in a disclosure officer's report. If the prosecutor agrees that the material is disclosable, they must disclose it as soon as reasonably practical. If the prosecutor considers no such disclosure is required, s/he must give to the accused a written statement to that effect (for more details see "Preparing the schedules").

19. This requirement extends to the continual review of unused material held by third parties, which may become potentially relevant because it might undermine the prosecution case/assist the defence at different stages of the prosecution process.

20. If you are unsure whether or not material should be disclosed, you should obtain advice by consulting the prosecutor, who will seek advice from prosecuting counsel as appropriate. You should also consult your line management chain as appropriate.

Material relevant to sentencing

21.Paragraph 71 of the Guidelines make it clear that in all cases the prosecutor must consider disclosing material which is relevant to sentencing, for example 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.

22. The interests of justice will also mean that material should continue to be considered post conviction. Any material which might cast doubt on the safety of a conviction should be brought to the attention of the prosecutor immediately.

23. The preparation of a Friskies schedule will assist in highlighting such material. However it may still be necessary to disclose more detailed material held by the prosecution that mitigates the seriousness of the offence or the accused's role in the offence.

Giving reasons

24. Throughout the disclosure process it is important that investigators, disclosure officers and prosecutors record their reasoning concerning disclosure decisions. This is necessary to ensure that there is good and consistent decision-making in the course of a prosecution.

25. Additionally it should be borne in mind that a decision not to disclose is subject to judicial review. In order to satisfy the High Court that a proper decision making process was undertaken, HSE will need to be able to defend the process by which the decision was made, as well as satisfying the court that the decision was proportionate. Such records may also be relevant if the defence makes a s8 application to the court for further disclosure.