5. Disclosure and Defence Statements
Includes:
- What is Disclosure?
- Disclosure of Unused Materials;
- Investigator’s Duty to Retain Unused Materials;
- Four Stages of Disclosure;
o Investigative Stage;
o Initial Disclosure;
o Defence Disclosure;
Defence Statements
o Continuing Duty to Review.
- Third Party Disclosure and Public Interest Immunity
- Pre-Charge Engagement.
What is Disclosure?
During the course of an investigation, investigative material is collated for trial.
Disclosure is the process of giving the other side information about the case.
The prosecution are obliged to show the defence, not only the evidence they intend
to rely on from this collated information, but any other relevant information known
as ‘unused material’.*
This material can prove pivotal in building a defence. It is, therefore, an important
part of a prosecutor’s job to ensure that full and fair disclosure has taken place. A
failure to do so could result in an unfair verdict and the need for a re-trial.
- Some information can be given public Interest immunity, where the prosecution
wishes to withhold that information, in order to protect a public interest eg. the identity
of informants or police procedure regarding surveillance techniques.
The duty of disclosure imposed on the Defence is merely to reveal the case which
will be presented at trial.
*Disclosure of Unused Materials
, D9.2 The statutory regime governing the disclosure of unused material by the
prosecution and the disclosure of the defence case is set out in the Criminal
Procedure and Investigations Act (CPIA) 1996, Part I (ss. 1- 21)
- Supplemented the under the CPIA 1996, s. 23 ('CPIA Code of Practice') and
CrimPR Part 15 (R15.1).
Section 3, CPIA 1996 makes clear that a prosecutor must:
‘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.’
‘Prosecution material’ is material that the prosecution ‘possesses’ or has
‘inspected in connection with the case’.
The essential consideration for a prosecutor of whether disclosure to defence is
required, is in accordance with the interests of justice and fairness. Lord Bingham
observed that prosecution disclosure is a requirement of basic fairness:
‘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.’
Section 7A(2) enforces that the duty to disclose is present at all stages of
proceedings, but does not require the same level of disclosure at each stage
The CPIA 1996 envisages a staged approach to the disclosure process:
Investigator’s Duty to Retain Unused Materials
Includes:
- What is Disclosure?
- Disclosure of Unused Materials;
- Investigator’s Duty to Retain Unused Materials;
- Four Stages of Disclosure;
o Investigative Stage;
o Initial Disclosure;
o Defence Disclosure;
Defence Statements
o Continuing Duty to Review.
- Third Party Disclosure and Public Interest Immunity
- Pre-Charge Engagement.
What is Disclosure?
During the course of an investigation, investigative material is collated for trial.
Disclosure is the process of giving the other side information about the case.
The prosecution are obliged to show the defence, not only the evidence they intend
to rely on from this collated information, but any other relevant information known
as ‘unused material’.*
This material can prove pivotal in building a defence. It is, therefore, an important
part of a prosecutor’s job to ensure that full and fair disclosure has taken place. A
failure to do so could result in an unfair verdict and the need for a re-trial.
- Some information can be given public Interest immunity, where the prosecution
wishes to withhold that information, in order to protect a public interest eg. the identity
of informants or police procedure regarding surveillance techniques.
The duty of disclosure imposed on the Defence is merely to reveal the case which
will be presented at trial.
*Disclosure of Unused Materials
, D9.2 The statutory regime governing the disclosure of unused material by the
prosecution and the disclosure of the defence case is set out in the Criminal
Procedure and Investigations Act (CPIA) 1996, Part I (ss. 1- 21)
- Supplemented the under the CPIA 1996, s. 23 ('CPIA Code of Practice') and
CrimPR Part 15 (R15.1).
Section 3, CPIA 1996 makes clear that a prosecutor must:
‘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.’
‘Prosecution material’ is material that the prosecution ‘possesses’ or has
‘inspected in connection with the case’.
The essential consideration for a prosecutor of whether disclosure to defence is
required, is in accordance with the interests of justice and fairness. Lord Bingham
observed that prosecution disclosure is a requirement of basic fairness:
‘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.’
Section 7A(2) enforces that the duty to disclose is present at all stages of
proceedings, but does not require the same level of disclosure at each stage
The CPIA 1996 envisages a staged approach to the disclosure process:
Investigator’s Duty to Retain Unused Materials
