Thursday 4 January 2007

Welcome back after the holidays. Tonight we discussed the rules on disclosure of evidence, both the evidence to be used by the prosecution and the unused material.

Traditionally, the prosecution in a criminal trial in England and Wales has a duty to disclose to the defence evidence in its possession. The reason for this is to equalise the imbalance in resources between the prosecution - which is financed by the state - and the defendant, thereby doing everything possible to ensure that the accused receives a fair trial. The prosecutor’s duty of disclosure is governed by two sets of rules:

1. rules relating to the evidence upon which the prosecution intends to rely at the trial and


2. those rules which govern any relevant evidence and other material which the prosecution does not intend using at the trial, but which may be relevant to the defence. It is important to note that the rules operate in different ways depending on whether the accused is charged with a summary offence, an offence triable either way or an indictable offence.

Important changes to the disclosure rules relating to trials on indictment were introduced by Criminal Justice Act 2003, which has amended the relevant sections of the Criminal Procedure and Investigations Act 1996 by imposing significantly more rigorous requirements on defendants in trials on indictment. In addition, the Criminal Procedure Rules have introduced changes to disclosure in summary and either-way offences. In a nutshell:

• in summary cases, evidence to be used at trial will be disclosed under the Attorney-General’s guidelines;


• in indictable-only offences the prosecution will disclose its evidence in the “case sent” bundle that is served on the defence after the case is sent to Crown Court;


• in either-way offences disclosure will be made under Part 21 CrPR and in the committal bundle.

For indictable offences, such as murder or robbery, there are two sets of rules that govern the pre-trial disclosure of evidence by the prosecution. The Criminal Procedure & Investigations Act 1996 established a statutory scheme for the compulsory reciprocal pre-trial disclosure of evidence by prosecution and defence in all cases on indictment. The relevant provisions were supplemented by a code of practice under Part II CPIA 1996, which requires the police to record relevant information, and to retain and reveal to the prosecutor material which may be relevant to the investigation. The duty on the prosecution under CPIA 1996 relates only to UNUSED material, that is, evidence gathered during the police investigation but which will not form part of the prosecution’s case at trial.

Evidence intended for use at trial will be disclosed under reg 2 Crime and Disorder Act 1998 (Service of Prosecution Evidence) Regulations 2000. Those papers will comprise the charge(s), witness statements and other evidence together with the draft indictment. The prosecution file should be served within a 42-day limit, although this time limit can be extended by the judge.


In order to appreciate the scope of the reforms under CJA 2003, we will begin by outlining the scheme that existed under CPIA 1996 before amendment in April 2005.

The Code of Practice under s23 CPIA 1996 imposed strict obligations on the police during the investigative stage to ensure that relevant material is recorded and retained and the Attorney-General’s guidelines urge investigators to err on the side of caution where there is doubt as to the relevance of any material.

CPIA 1996 established a three-stage procedure for disclosure.

1. PRIMARY DISCLOSURE: by the prosecution: s3(1) CPIA 1996 required disclosure of evidence which, in the prosecutor’s opinion, might undermine the prosecution case. The defendant was also entitled to a schedule detailing non-sensitive material in the prosecutor’s possession.


2. DEFENCE DISCLOSURE: s5 required the defendant to provide a defence statement setting out in general terms the nature of the defence, indicating matters on which the accused takes issue with the prosecution case and the reasons why issue is taken, and giving further particulars of any alibi defence.


3. SECONDARY DISCLOSURE: by the prosecution: once the defence statement had been served, the prosecutor had a duty-, under s7, to disclose material which might reasonably be expected to assist the defence as disclosed in the defence statement.

s32 Criminal Justice Act 2003 amends s3 by renaming primary disclosure “initial prosecution disclosure” and incorporating an objective element. Instead of s3 requiring the prosecution to disclose evidence which in the prosecutor’s opinion might undermine the case for the prosecution against the accused, the prosecution is now required to disclose evidence which might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused. Prosecutors must now be able to justify a judgment that undisclosed material is not capable of undermining the prosecution’s case. You may think that this isn’t so very different.

Under s7 CPIA 1996 the prosecutor must make secondary disclosure of material not previously disclosed that might reasonably be expected to assist the accused’s defence as disclosed in the defence statement. Under s9 the prosecutor remains under a continuing duty to review unused material and disclose as appropriate.

s6A CPIA 1996 (inserted by s33(2) CJA 2003) introduces significant additional disclosure requirements on a defendant. The defence statement must be in writing and:

• set out the nature of the accused’s defence including any particular defence on which he intends to rely;


• indicate the matters of fact on which he takes issue with the prosecution;


• set out, in the case of each matter, why he takes issue with the prosecution; and


• indicate any point of law (including any point as to the admissibility of evidence) that he wishes to take and any authority on which he intends to rely for that purpose.

The effect of these changes is to require defence statements to be much more specific in detailing any defence that is to be relied on at trial.

Under s6C CPIA 1996 (inserted by s34 CJA 2003) defendants are required to indicate whether they intend to call any witnesses, together with the details of

1. name, address and date of birth of each witness, or such details as are known;


2. any information in the defendant’s possession that might help in identifying such witnesses.

Why? To enable the prosecution to conduct pre-trial interviews with such witnesses in an attempt to assess their veracity This could conceivably deter witnesses from coming forward or intimidate them into changing their evidence.

Even more alarming, s35 CJA 2003 inserts a new s6D, providing that where an expert witness is approached by the defence with a view to his compiling a report for possible use at trial, the defendant must give to the court and the prosecutor a notice specifying that person’s name and address. This puts the prosecution on notice where an expert is consulted but does not testify and enables the prosecutor to approach that expert with a view to recruiting him to the prosecution’s cause. CJA 2003 does not appear to impose any sanction, in the form of adverse inferences, for a failure by the defence to notify the prosecution of an approach to a possible expert witness, which raises the question whether practitioners will actually comply with the requirement.

Sanctions against the defendant for non-disclosure in accordance with the statutory scheme take the form of adverse inferences being drawn, where appropriate, under s11 CPIA 1996. For the prosecution, sanctions will be decided on a case-by-case basis.

The full disclosure of the evidence obtained by the police is an important part of the defendant’s right to a fair trial in the Crown Court. In domestic law, the sanctions the court will take against the prosecution where it has failed to disclose evidence and other material to the defence are decided on the facts of each case. Compare:

Patel and Others [2001] where the Court of Appeal allowed the defendants’ appeals against their conviction for conspiracy to cheat the public revenue because the prosecution had failed to disclose the extent to which informants had participated in the conspiracy and had told lies in earlier prosecutions against other persons alleged to have been involved in the conspiracy. The Court of Appeal held that the prosecution’s failure to disclose material information to the trial judge had made the defendants’ convictions unsafe.

with

Craven [2001] where the appellant claimed that his conviction was unsafe because the prosecution had failed to disclose fingerprint evidence that might have weakened the case against him. The Court of Appeal held that the court is entitled to look at all the evidence and that, as the evidence that had been withheld did not materially weaken the case against the defendant, it did not render the conviction unsafe.

The revised s11 CPIA 1996 allows adverse inferences to be drawn for failure to comply with many of the disclosure requirements that now lie with the defendant:

• failure to serve an initial defence statement or serving it out of time;


• failing to send an updated statement when required to do so or serving it out of time;


• pleading inconsistent defences in the defence statement; (a favourite with the examiner)


• advancing a defence at trial which is different from any previously disclosed;


• advancing a defence at trial that has not previously been disclosed;


• relying on an alibi defence not previously disclosed;


• calling a witness who was not identified in the defence statement or advance notice of witnesses section (s6C).

Where the defendant fails to disclose in accordance with the requirements, the jury will be entitled to draw whatever inferences are appropriate, including inferences of guilt. Comment on non-disclosure is permitted by both the court and the parties. s11 does make clear that inferences alone will be insufficient to found a conviction.

s8 CPIA 1996 provides that the prosecutor can apply to the court for an order that material should not be disclosed at either the primary or secondary disclosure stage on the basis that it is not in the public interest for it to be disclosed.

At both the primary and secondary stage, the prosecution’s duty of disclosure is subject to the doctrine of public interest immunity. Under ss3(6) and 7(5) CPIA 1996, in relation to primary and secondary disclosure respectively, CPIA 1996 expressly preserves the existing law on public interest immunity. The prosecution must provide a separate schedule of sensitive material which may be covered by public interest immunity. This is likely to include evidence relating to

1. national security


2. confidential information


3. the identity of informants


4. the identity of undercover police officers


5. details of premises used for police surveillance


6. other crime detection methods.

It is for the court to decide, by applying the usual common law principles, whether sensitive material should not be disclosed because it is covered by public interest immunity. The hearing can be either with or without notice depending on the type of application made by the prosecutor.

Different rules apply depending on whether the evidence to be disclosed is going to be used by the prosecution at the trial and whether the offence is tried summarily or on indictment.

(1) EVIDENCE AND MATERIAL UPON WHICH THE PROSECUTION INTENDS TO RELY. As the accused plays an influential part in determining the mode of trial decision, it is important that his decision should be informed. This means that he should be in possession of as much information about the prosecution case as possible. Part 21 CrPR therefore requires that, at an early stage in the proceedings and before the mode of trial hearing in an either-way offence, the prosecution should disclose to the accused the substance of the case against him or copies of the statements of the proposed prosecution witnesses. If the magistrates decide that the case is suitable to be tried in the Crown Court or the defendant elects trial in the Crown Court, the prosecution will serve on the accused a committal bundle before the committal proceedings. The committal bundle will contain the statements of all the witnesses who will give evidence for the prosecution at the trial.

(2) UNUSED EVIDENCE AND OTHER MATERIAL IN EITHER-WAY OFFENCES. The procedure to be adopted in relation to unused evidence depends on whether the case is to be tried by the magistrates or at the Crown Court. Where the matter is to be tried at the Crown Court, the full disclosure regime applies to trials on indictment.
The rules relating to advance disclosure in summary trials are to be found in the common law, the Attorney-General’s guidelines on disclosure and CPIA 1996. Whilst there is no statutory obligation for the prosecution to disclose evidence upon which it intends to rely at trial, in November 2000 the Attorney-General issued guidelines on the disclosure of information in criminal proceedings. In order to comply with Art 6 ECHR, the revised guidelines state that, in addition to complying with the obligations under CPIA 1996, the prosecution should provide the defence with all the evidence upon which the Crown proposes to rely at summary, trial to allow the accused or his legal adviser sufficient time and opportunity to consider the evidence before it is called.

sl(1) CPIA 1996 partly incorporates the statutory scheme into summary trials. The prosecutor has a primary duty to disclose any unused material to the defence if the accused pleads not guilty and the case proceeds to summary trial. At this stage, under s6 CPIA 1996, the defence can voluntarily serve a defence statement on the prosecutor and the court. This will include providing details of any alibi which it is intended to run at the trial. If a defence statement is served, the prosecution must fulfil its obligations at the secondary disclosure stage. It appears that, where the defence voluntarily serves a defence statement then, as in trials on indictment, the court may comment on, or draw inferences from, disclosure which is late, defective or inconsistent with the defence case at trial. In view of these potential sanctions, few defence lawyers participate in the voluntary scheme in summary trials.

We begin next week with trials involving youths.