480.__General_principles_of_fair_disclosure_

 

Halsbury’s Laws of England/CRIMINAL PROCEDURE (VOLUME 27 (2010), PARAS 1-451; VOLUME 28 (2010), PARAS 452-962)/10.  EVIDENCE AND WITNESSES/(5) ADVANCE INFORMATION AND DISCLOSURE/(i) Introduction/480. General principles of fair disclosure to the defendant.

 

(5)  ADVANCE INFORMATION AND DISCLOSURE

 

(i)  Introduction

 

  1. General principles of fair disclosure to the defendant.

 

Criminal Procedure Rules1 may make, with respect to proceedings against any person for a prescribed offence or an offence of any prescribed class, provision2:

 

(1)     for requiring the prosecutor to do such things as may be prescribed for the purpose of securing that the defendant or a person representing him is furnished with, or can obtain, advance information concerning all, or any prescribed class of, the facts and matters of which the prosecutor proposes to adduce evidence3; and

(2)     for requiring a magistrates’ court, if satisfied that any requirement imposed by virtue of head (1) above has not been complied with, to adjourn the proceedings pending compliance with that requirement unless the court is satisfied that the conduct of the case for the defendant will not be substantially prejudiced by non-compliance with the requirement4.

 

Fair disclosure to a defendant5 is an inseparable part of a fair trial6, which consists of an examination not just of all the evidence the parties wish to rely on but also all other relevant subject matter7. The scheme set out in the Criminal Procedure and Investigations Act 19968 is designed to ensure that there is fair disclosure of material which may be relevant to an investigation and which does not form part of the prosecution case (‘unused material’)9. Investigators must always be alive to the potential need to reveal, and prosecutors to the potential need to disclose, material, in the interests of justice and fairness in the particular circumstances of any case, after the commencement of proceedings but before their duty arises under the Act10.

 

1      Any reference in this title to ‘Criminal Procedure Rules’ or to ‘CrimPR’ is a reference to the Criminal Procedure Rules 2010, SI 2010/60, that have been made under the Courts Act 2003 s 69: see para 110.

 

2      See the Criminal Law Act 1977 s 48(1) (amended by the Courts Act 2003 s 109(1), Sch 8 para 190). It is not open to a person convicted of an offence to appeal against the conviction on the ground that a requirement imposed by virtue of the Criminal Law Act 1977 s 48(1) (see heads (1) and (2) in the text) was not complied with by the prosecutor: s 48(3).

 

3      Criminal Law Act 1977 s 48(1)(a). Rules made by virtue of s 48(1)(a) may: (1) require the prosecutor to do as provided in the rules either in all cases or only if so requested by or on behalf of the defendant (s 48(2)(a)); (2) exempt facts and matters of any prescribed description from any requirement imposed by the rules (s 48(2)(b)); and (3) may make the opinion of the prosecutor material for the purposes of any such exemption, and may make different provision with respect to different offences or offences of different classes (s 48(2)(c)).

In a magistrates’ court, where the offence is one that can be tried in a magistrates’ court (ie an offence triable only summarily or an offence triable either way) initial details of the prosecution case must be given in accordance with CrimPR Pt 21 (CrimPR 21.1-21.3): see para 234. As to the meanings of an ‘offence triable only summarily’ and an ‘offence triable either way’ see para 160. The provisions of CrimPR Pt 22 (CrimPR 22.1-22.9) (see para 486 et seq) apply in a magistrates’ court and in the Crown Court where the Criminal Procedure and Investigations Act 1996 Pt I (ss 1-21A) and Pt II (ss 22-27) also apply (see para 481 et seq): see CrimPR 22.1. As to magistrates’ courts see para 7; and as to the Crown Court see para 8. The procedure that is now set out in CrimPR Pt 22 replaces the rules that were previously set out in the Crown Court (Criminal Procedure and Investigations Act 1996) (Disclosure) Rules 1997, SI 1997/698, and the Magistrates’ Courts (Criminal Procedure and Investigations Act 1996) (Disclosure) Rules 1997, SI 1997/703, which were revoked on the coming into force of the Criminal Procedure Rules 2010, SI 2010/60. As to the service of extant prosecution evidence where a person is sent for trial under the Crime and Disorder Act 1998 see para 289. As to the provision made requiring a copy of a notice of transfer, together with copies of the documents containing the extant evidence, or a statement of the extant evidence, to be given to any person to whom the notice of transfer relates, and to the Crown Court sitting at the place specified by the notice of transfer as the proposed place of trial, see the Criminal Justice Act 1987 s 5 (cited in para 299); and the Criminal Justice Act 1991 Sch 6 para 4 (cited in para 308). As to advance notice of evidence in connection with voluntary bills of indictment see para 328. A judge may make further disclosure orders at any preparatory hearing that is held pursuant to the Criminal Justice Act 1987 s 7 or the Criminal Procedure and Investigations Act 1996 s 29: see paras 353, 354.

 

4      Criminal Law Act 1977 s 48(1)(b). The absence of advance notice by the prosecution will not invariably prejudice the fairness of a summary trial, but it is desirable for prosecutors to give advance notice because without it magistrates’ courts may be obliged to grant adjournments to enable the defendant or his representatives to deal with the evidence when it is given, to cross-examine a witness and, if necessary, to obtain evidence to show that the witness is wrong: R v Kingston-upon-Hull Justices, ex p McCann (1991) 155 JP 569, DC; R v Stratford Justices, ex p Imbert [1999] 2 Cr App Rep 276, [1999] All ER (D) 115, DC. As to the procedure for offences triable summarily see para 228 et seq. As to the mode of trial where the person charged is under 18 years of age see para 179.

 

5      For these purposes, ‘disclosure’ refers to a prosecutor 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 defendant, or of assisting the case for the defendant, and which has not previously been disclosed: see the Attorney-General’s Guidelines on Disclosure para 8. As to the responsibilities of investigators and disclosure officers generally see paras 23-31; as to the responsibilities of prosecutors see paras 32-41; and as to the responsibilities of prosecution advocates see paras 42-46. 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: see para 9. See also R v Luttrell [2004] EWCA Crim 1344 at [62], [2004] 2 Cr App Rep 520 at [62]. This material may include information revealed during questioning (see the Attorney-General’s Guidelines on Disclosure para 9) and material held by government departments or other Crown bodies (see paras 47-50) and material held by other agencies (see paras 51-54). In the interests of fairness (see note 6), the statutory disclosure scheme protects other interests that need to be protected, including those of victims and witnesses who might otherwise be exposed to harm (see para 6); and disclosure is subject always to the principles and procedures that govern the withholding of disclosure on grounds of privilege or public interest immunity (see paras 492, 501 et seq). As to the Attorney-General’s Guidelines on Disclosure (revised April 2005) see note 8.

Generally, material which can reasonably be considered capable of undermining the prosecution case against the defendant or assisting the defence case includes anything that tends to show a fact inconsistent with the elements of the case that must be proved by the prosecution: see the Attorney-General’s Guidelines on Disclosure para 10. Material can fulfil the disclosure test:

 

(1)     by the use to be made of it in cross-examination (see para 10(a)); or

(2)     by its capacity to support submissions that could lead to the exclusion of evidence, or to a stay of proceedings, or to a court or tribunal finding that any public authority had acted incompatibly with the defendant’s rights under the European Convention on Human Rights (‘ECHR’) (see note 6) (see para 10(b)); or

(3)     by its capacity to suggest an explanation or partial explanation of the defendant’s actions (see para 10(c)).

In deciding whether material may fall to be disclosed under para 10 (especially where it could lead to a stay of proceedings under head (2) above), prosecutors must consider whether disclosure is required in order for a proper application to be made; however, the purpose of this provision is not to allow inquiries to support speculative arguments or for the manufacture of defences: see para 11. Examples of material that might reasonably be considered capable of undermining the prosecution case or of assisting the case for the defendant are:

 

(a)     any material casting doubt upon the accuracy of any prosecution evidence (see para 12(i));

(b)     any material which may point to another person (whether charged or not), including a co-defendant, having involvement in the commission of the offence (see para 12(ii));

(c)     any material which may cast doubt upon the reliability of a confession (see para 12(iii));

(d)     any material that might go to the credibility of a prosecution witness (see para 12(iv));

(e)     any material that might support a defence that is either raised by the defence or apparent from the prosecution papers (see para 12(v));

(f)     any material which may have a bearing on the admissibility of any prosecution evidence (see para 12(vi)).

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 defendant, several items together can have that effect: see para 13. Material relating to the defendant’s mental or physical health, intellectual capacity, or to any ill treatment which the defendant may have suffered when in the investigator’s custody is likely to fall within the test for disclosure set out in para 8: see para 14. In all cases, the prosecutor must consider disclosing in the interests of justice any material, which is relevant to sentence (eg information which might mitigate the seriousness of the offence or assist the defendant to lay blame in part upon a co- defendant or another person): see para 58.

 

6      Attorney-General’s Guidelines on Disclosure para 1. 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: see Foreword.

The right to a fair trial is guaranteed under the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953) Cmd 8969), which is commonly referred to as the European Convention on Human Rights (‘ECHR’) and is incorporated into English law by means of the Human Rights Act 1998 Sch 1: see rights and freedoms vol 88A (2013) para 116 et seq. In particular, ECHR art 6 applies to a person’s right to a fair trial: see rights and freedoms vol 88A (2013) para 243 et seq. See also Rowe and Davis v United Kingdom (2000) 30 EHRR 1, ECtHR; and the Attorney-General’s Guidelines on Disclosure para 1.

 

7      Attorney-General’s Guidelines on Disclosure para 2. See note 5. The disclosure scheme 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: see para 6. A fair trial does not require consideration of irrelevant material and should not involve spurious applications or arguments which serve to divert the trial process from examining the real issues before the court: see para 2. As to disclosure or advance notification by the defendant that is expected see para 481.

 

8      Ie the scheme set out in the Criminal Procedure and Investigations Act 1996 Pt I (ss 1-21A) (disclosure) (see also para 481 et seq). As to the statutory scheme for disclosure and the code of practice relating to criminal investigations that must be promulgated by the Secretary of State under Pt II (ss 22-27) (criminal investigations) see para 482.

In order to ensure that the statutory disclosure regime operates effectively, fairly and justly, the Attorney-General has published the Attorney-General’s Guidelines on Disclosure (revised April 2005), which and is available, at the date at which this volume states the law, at: https://www.attorneygeneral.gov.uk. Whilst it is acknowledged that the Attorney-General’s Guidelines on Disclosure have been drafted with a focus on Crown Court proceedings, the spirit of the Guidelines must be followed where they apply to proceedings in the magistrates’ court: see para 7. As to the Crown Court see further Disclosure: a protocol for the control and management of unused material in the Crown Court (February 2006), which was published by the judiciary and is available, at the date at which this volume states the law, at the Ministry of Justice website, https://www.justice.gov.uk.

 

9      Attorney-General’s Guidelines on Disclosure para 3. Disclosure must not be an open ended trawl of unused material, however: see para 5. A critical element to fair and proper disclosure is that the defence play their role to ensure that the prosecution is directed to material which might reasonably be considered capable of undermining the prosecution case or assisting the case for the defendant; this process is key to ensuring prosecutors make informed determinations about disclosure of unused material: see para 5.

Disclosure under the Criminal Procedure and Investigations Act 1996 should also assist defendants in the timely preparation and presentation of their case and assist the court to focus on all the relevant issues in the trial; disclosure which does not meet these objectives risks preventing a fair trial taking place: see para 3. This means that the disclosure regime set out in the Act must be scrupulously followed and operated in accordance with the Attorney-General’s Guidelines on Disclosure: see para 4. See also R v H [2004] UKHL 3, [2004] 2 AC 134, [2004] 1 All ER 1269 (provided the existing procedures were operated in accordance with the overriding principle and with continuing regard for the defendant’s interests, there would be no violation of ECHR art 6 (see note 6)). As to the overriding objective and the duty of participants in a criminal case see CrimPR Pt 1 (CrimPR 1.1-1.3); and para 111. See also R (on the application of Robinson) v Abergavenny Magistrates’ Court [2007] EWHC 2005 (Admin), 171 JP 683, [2007] All ER (D) 210 (Jul) (overriding objective of the Criminal Procedure Rules in magistrates’ courts) (cited in para 111). In the case of a summary trial, the prosecutor should, in addition to complying with the obligations under the Criminal Procedure and Investigations Act 1996 (see para 481 et seq), provide to the defence all evidence upon which the Crown proposes to rely in a summary trial: Attorney-General’s Guidelines on Disclosure para 57. Such provision should allow the defendant and their legal advisers sufficient time properly to consider the evidence before it is called: see para 57.

 

10      See the Attorney-General’s Guidelines on Disclosure para 55; and see R v DPP, ex p Lee [1999] 2 All ER 737, [1999] 2 Cr App Rep 304, DC. Disclosure ought to be made, for instance, of significant information that might affect a bail decision (see para 66 et seq) or that might enable the defence to contest the committal proceedings (see para 181 et seq): see para 55. Where the need for such disclosure is not apparent to the prosecutor, any disclosure will depend on what the defendant chooses to reveal about the defence; such disclosure will not exceed that which is obtainable after the statutory duties of disclosure arise: see para 56.

 

UPDATE

 

480-500  Advance Information and Disclosure

 

SI 2010/60 (‘CrimPR’) replaced by Criminal Procedure Rules 2014, SI 2014/1610 (as amended: see para 110-195).

 

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