9/20/24, 9:47 BPTC Criminal Litigation Manual September 2019
AM Chapter 6
Disclosure and
Considering
Evidence
93
about:bl 1/
,9/20/24, 9:47 BPTC Criminal Litigation Manual September 2019
AM Chapter 6
BPTC Criminal Litigation, Evidence & Sentencing
Please ensure that you also read the further material in Blackstone's Criminal
Practice and the syllabus as outlined in paragraph 1 of this chapter.
1 Further required reading for this chapter
2 Introduction
3 Part 1 – Disclosure
4 The importance of unused material
5 Main disclosure provisions
6 The four stages of disclosure
7 The investigation stage
8 Prosecution duty of disclosure
9 Disclosure by the defence
10 Continuing duty of disclosure by the prosecution
11 Part 2 – Considering evidence
12 Excluding evidence or seeking to stop a case
13 Applications for dismissal
14 Submissions of no case to answer
94
about:bl 2/
,9/20/24, 9:47 BPTC Criminal Litigation Manual September 2019
AM Chapter 6
Disclosure and Considering Evidence
Further required reading for this chapter
1 In addition to this chapter, please ensure that you read:
(a) All of part 5 (Disclosure of unused material and defence statements)
(b) Paragraph 4 of part 7 (Preliminaries to trial in the Crown Court)
(c) Paragraph 3 of part 10 (Preliminary evidential matters)
(d) Paragraphs 6 & 7 of part 16 (Confessions and Unlawfully
Obtained Evidence)
(e) Paragraphs 5 & 6 of part 8 (Summary Trial Procedure)
(f) Paragraph 3 and 4 of part 9 (Jury trial procedure)
of the BSB syllabus (see appendix 1) and the chapters of
Blackstone's Criminal Practice identified within.
Introduction
2 This chapter is divided into two parts: Part 1 – Disclosure (which
concentrates on the duties of disclosure of evidence on both the
prosecution and the defence in criminal cases) and Part 2 –
Considering evidence which relates to a number of methods used to
secure or exclude evidence in a criminal trial.
Part 1 – Disclosure
3 During a criminal investigation the police or other prosecuting
authority will often speak to a number of witnesses and take
statements from them. They will often look through documents, check
CCTV and follow various avenues in their search for evidence. The
result, depending on the nature of the case, is that a significant
volume of material builds up, some of which will be relevant to proving
the case and some of which will not. It is predominantly from this
investigative material that the prosecution decide which material
will be used (ie relied upon at trial) and which will be unused (ie
not relied upon at trial).
4 Used material is the material the prosecution will rely upon at trial
to prove its case against a defendant. Used material consists of the
case papers and other material that forms part of the evidence in the
case, so it will include such items as the indictment, statements from
the prosecution witnesses, the defendant's record of taped interview
and other documentary exhibits such as plans and diagrams that
are relevant to proving the case. It is from this material that a
defendant will know what the case against him is.
5 Unused material is material that is not being relied upon by the
prosecution; this is material such as statements from witnesses that
the prosecution is not relying upon at trial to prove its case, as well as
items such as the records of previous convictions of prosecution
witnesses and disciplinary findings against police officers.
95
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, 9/20/24, 9:47 BPTC Criminal Litigation Manual September 2019
AM Chapter 6
BPTC Criminal Litigation, Evidence & Sentencing
The importance of unused material
6 Unused material can be extremely important to a defendant in a
criminal trial. Often a case will be based on a number of
witnesses whose evidence, if believed, is sufficient to convict the
defendant of a criminal charge. In the same case there might be
other witnesses who throw doubt on this. If the prosecution, having
reviewed all the material available, considers that there is a
realistic prospect of conviction and that it is in the public interest to
prosecute the case, it would clearly be wrong to only reveal to the
defendant the material that supports its case and not the material
that does not. Fairness demands that material in the hands of the
prosecution that might help a defendant is served on that
defendant. The defendant may then, if he so chooses, present that
material in his defence at trial. The House of Lords in R v H and C
[2004] UKHL 3; [2004] 2 AC 134; [2004] 2 Cr App R 10 put it this
way: 'Fairness ordinarily requires that 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. Bitter experience
has shown that miscarriages of justice may occur where such
material is withheld from disclosure. The golden rule is that full
1
disclosure of such material should be made.'
7 It follows that full and proper disclosure is at the heart of a fair system
2
of criminal justice. It is a vital part of the preparation for trial and for
this reason rules have developed as to both the duty to disclose
unused material and the duty to retain material during a criminal
investigation.
Main disclosure provisions
8 The principal provisions relating to unused material can be found in:
(a) The Criminal Procedure and Investigations Act (CPIA) 1996, Part
3
1 (ss.1 to 21)
(b) The Code of Practice on Disclosure, issued under s.23
4
CPIA (the Disclosure Code of Practice)
5
(c) Criminal Procedure Rules (CrimPR) Part 15
(d) The Attorney General's Guidelines on Disclosure – for Investigators,
6
Prosecutors and Defence Practitioners (the A-G's Guidelines)
(e) The Judicial Protocol on the Disclosure of Unused Material in
7
Criminal Cases (the Judicial Disclosure Protocol)
1
[2004] 2 AC 134, at 147.
2
Criminal Practice Directions 2015 Division IV Disclosure 15A.1.
3
As amended by the Criminal Justice Act 2003 and the Criminal Justice and Immigration Act 2008.
4
March 2015.
5
October 2015.
6
December 2013.
96
about:bl 4/
AM Chapter 6
Disclosure and
Considering
Evidence
93
about:bl 1/
,9/20/24, 9:47 BPTC Criminal Litigation Manual September 2019
AM Chapter 6
BPTC Criminal Litigation, Evidence & Sentencing
Please ensure that you also read the further material in Blackstone's Criminal
Practice and the syllabus as outlined in paragraph 1 of this chapter.
1 Further required reading for this chapter
2 Introduction
3 Part 1 – Disclosure
4 The importance of unused material
5 Main disclosure provisions
6 The four stages of disclosure
7 The investigation stage
8 Prosecution duty of disclosure
9 Disclosure by the defence
10 Continuing duty of disclosure by the prosecution
11 Part 2 – Considering evidence
12 Excluding evidence or seeking to stop a case
13 Applications for dismissal
14 Submissions of no case to answer
94
about:bl 2/
,9/20/24, 9:47 BPTC Criminal Litigation Manual September 2019
AM Chapter 6
Disclosure and Considering Evidence
Further required reading for this chapter
1 In addition to this chapter, please ensure that you read:
(a) All of part 5 (Disclosure of unused material and defence statements)
(b) Paragraph 4 of part 7 (Preliminaries to trial in the Crown Court)
(c) Paragraph 3 of part 10 (Preliminary evidential matters)
(d) Paragraphs 6 & 7 of part 16 (Confessions and Unlawfully
Obtained Evidence)
(e) Paragraphs 5 & 6 of part 8 (Summary Trial Procedure)
(f) Paragraph 3 and 4 of part 9 (Jury trial procedure)
of the BSB syllabus (see appendix 1) and the chapters of
Blackstone's Criminal Practice identified within.
Introduction
2 This chapter is divided into two parts: Part 1 – Disclosure (which
concentrates on the duties of disclosure of evidence on both the
prosecution and the defence in criminal cases) and Part 2 –
Considering evidence which relates to a number of methods used to
secure or exclude evidence in a criminal trial.
Part 1 – Disclosure
3 During a criminal investigation the police or other prosecuting
authority will often speak to a number of witnesses and take
statements from them. They will often look through documents, check
CCTV and follow various avenues in their search for evidence. The
result, depending on the nature of the case, is that a significant
volume of material builds up, some of which will be relevant to proving
the case and some of which will not. It is predominantly from this
investigative material that the prosecution decide which material
will be used (ie relied upon at trial) and which will be unused (ie
not relied upon at trial).
4 Used material is the material the prosecution will rely upon at trial
to prove its case against a defendant. Used material consists of the
case papers and other material that forms part of the evidence in the
case, so it will include such items as the indictment, statements from
the prosecution witnesses, the defendant's record of taped interview
and other documentary exhibits such as plans and diagrams that
are relevant to proving the case. It is from this material that a
defendant will know what the case against him is.
5 Unused material is material that is not being relied upon by the
prosecution; this is material such as statements from witnesses that
the prosecution is not relying upon at trial to prove its case, as well as
items such as the records of previous convictions of prosecution
witnesses and disciplinary findings against police officers.
95
about:bl 3/
, 9/20/24, 9:47 BPTC Criminal Litigation Manual September 2019
AM Chapter 6
BPTC Criminal Litigation, Evidence & Sentencing
The importance of unused material
6 Unused material can be extremely important to a defendant in a
criminal trial. Often a case will be based on a number of
witnesses whose evidence, if believed, is sufficient to convict the
defendant of a criminal charge. In the same case there might be
other witnesses who throw doubt on this. If the prosecution, having
reviewed all the material available, considers that there is a
realistic prospect of conviction and that it is in the public interest to
prosecute the case, it would clearly be wrong to only reveal to the
defendant the material that supports its case and not the material
that does not. Fairness demands that material in the hands of the
prosecution that might help a defendant is served on that
defendant. The defendant may then, if he so chooses, present that
material in his defence at trial. The House of Lords in R v H and C
[2004] UKHL 3; [2004] 2 AC 134; [2004] 2 Cr App R 10 put it this
way: 'Fairness ordinarily requires that 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. Bitter experience
has shown that miscarriages of justice may occur where such
material is withheld from disclosure. The golden rule is that full
1
disclosure of such material should be made.'
7 It follows that full and proper disclosure is at the heart of a fair system
2
of criminal justice. It is a vital part of the preparation for trial and for
this reason rules have developed as to both the duty to disclose
unused material and the duty to retain material during a criminal
investigation.
Main disclosure provisions
8 The principal provisions relating to unused material can be found in:
(a) The Criminal Procedure and Investigations Act (CPIA) 1996, Part
3
1 (ss.1 to 21)
(b) The Code of Practice on Disclosure, issued under s.23
4
CPIA (the Disclosure Code of Practice)
5
(c) Criminal Procedure Rules (CrimPR) Part 15
(d) The Attorney General's Guidelines on Disclosure – for Investigators,
6
Prosecutors and Defence Practitioners (the A-G's Guidelines)
(e) The Judicial Protocol on the Disclosure of Unused Material in
7
Criminal Cases (the Judicial Disclosure Protocol)
1
[2004] 2 AC 134, at 147.
2
Criminal Practice Directions 2015 Division IV Disclosure 15A.1.
3
As amended by the Criminal Justice Act 2003 and the Criminal Justice and Immigration Act 2008.
4
March 2015.
5
October 2015.
6
December 2013.
96
about:bl 4/
