Disclosure and Why it Matters

What should be included in the Initial Disclosure?

The duty of initial disclosure arises following the entry of a not guilty plea, whereupon the prosecutor must review the material held by them and apply the disclosure test.

The IDPC is not initial disclosure or advance disclosure, the information should be sufficient to enable pleas to be taken or to inform allocation decisions.

The IDPC will be served prior to the first appearance in the Magistrates Court. It is now requested by email from the inbox of the relevant prosecuting authority.

What is the Disclosure test?

The disclosure test is contained in section 3(1)(a) CPIA:

The 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.

In Barkshire [2011] EWCA Crim 1885, the court indicated that such material included:

“… anything available to the prosecution which may undermine confidence in the accuracy of the evidence called by the prosecution, or which may provide a measure of support for the defence at trial.” [Para. 9]

In H [2004] 2 AC 134, the House of Lords made clear that section 3:

“… [did] not require disclosure of material which is either neutral in its effect or which is adverse to the defendant, whether because it strengthens the prosecution or weakens the defence.” [Para. 17]

If no such material exists, the prosecution are obliged to provide a written statement to that effect to the accused [section 3(1)(b) CPIA] and to the court officer [CrimPR 15.2].

What is Prosecution Material?

“Prosecution material” is defined as material which the prosecutor possesses or has inspected under the provisions of the CPIA. [Section 3(2) CPIA]. The meaning of prosecutor is broad, it includes any prosecuting authority so therefore includes the Police and the NCA.

“Third party material” is defined as material held by a person, organisation or government department other than the investigator or prosecutor. [Para. 53 AG’s Guidelines]

Schedule of unused material

In addition to providing material which meets the test contained in section 3 CPIA, prosecutors are required under section 4 CPIA to serve a schedule of unused material on the defence.

The schedule of unused material should be served either at the hearing at which a not guilty plea is entered or as soon as possible following a formal indication from the defence that a not guilty plea will be entered at the hearing [Para. 10.1 CPIA Code].

A schedule of unused material will be served by the Stage One date in the Crown Court, which is 70 days from the date of sending (from the Magistrates Court). The PTPH will be held ordinarily 28 days after the first appearance, it must be within 35 days of the first appearance under the CPR.

Defence Disclosure 

There is no obligation to provide a defence statement in the Magistrates’ Court. However, once the prosecution has complied – or purported to comply – with initial disclosure the defence may serve a defence statement.

At first appearance, the Court will require the defence advocate to identify an issue if a Not Guilty plea is pursued. You may be pushed in respect of this. The best approach is to be as broad as possible. Some possible examples are as follows:

In any event, the defence are required to identify the real issues in the case in accordance with the overriding objective contained in CrimPR 1.1. [See Robinson v Abergavenny Magistrates’ Court [2007] EWHC 2005 (Admin) paras. 27 to 29]

Defence statements

If a defence statement is served, the same requirements apply as in the Crown Court; these are contained in section 6A CPIA.

After the service of a defence statement, a repeat exercise of the process for initial disclosure must take place. The investigator must look again at the material retained and draw the prosecution’s attention to any material which meets the disclosure test. [Para. 8.3 CPIA Code]

In the absence of a defence statement, the defence cannot make applications for further disclosure under section 8 CPIA and the court cannot make any orders for disclosure of unused prosecution material.

In the Crown Court, it is not mandatory to serve a Defence Case Statement (contrary to what Judges may say). However, there can be an adverse inference drawn against a failure to serve such a document or to serve a document late.

Stage Two will require the service of a Defence Statement. This is ordinarily within 28 days of the Stage One date or when the Prosecution comply with Stage One, whichever is later.

A defence statement should set out the following:

The facts on which the Defendant relies in their defence;

The matters which the Defendant requires to prove;

Any matters of law which the Defendant intends to raise;

Any requests for disclosure.

Applying for Further Material

If the defence have served a defence statement and the prosecution have complied, purported to comply or failed to comply with the procedure for further disclosure, the defence may apply under section 8 CPIA for an order for disclosure of material which should have been disclosed under section 7A CPIA.

What if the Prosecution  Breach their Obligations or Fail to Comply with their Duties?

Blackstone’s Criminal Practice 2023 states that failure on the part of the prosecution to make proper disclosure may result in a defence application to stay proceedings as an abuse of process, the exclusion of material evidence or a successful appeal. [D9.28 BCP 2020]

The Magistrates Court Disclosure Review states:

“If the prosecution has failed to discharge its obligation by the date of trial, the prosecutor will not be entitled to continue, if s/he is satisfied that a fair trial cannot take place.” [Para. 36 MCDR]

However, the courts have increasingly emphasised the importance of having regard to the overriding objective of the Criminal Procedure Rules to deal with cases justly and to treat the prosecution and the defence fairly.

As a result, this can mean that where the Prosecution fail to comply with their obligations or they fail to disclose material that they should have done, a case can be brought to an end.