Driving Solicitors and Disclosure of Evidence

March 29, 2017 10:04 am Published by Driving Solicitors Disclosure of Evidence

Disclosure of Evidence Following a Not Guilty Plea

ACPO and Disclosure Manual – Introduction 

These simple instructions outline how the Police Service and The Crown Prosecution Service (CPS) disclosed unused material to the defence solicitors. This is consistent across England and Wales.

The instructions provide advice on efficient file management, taking into account the Prosecution Team Manual of Guidance for Preparation, Processing and Submission of Files and agreements reached between the Association of Chief Police Officers (ACPO) and the CPS.

On certain occasions these instructions will require action in addition to the CPIA 1996 and the Code of Practice, which is designed to ensure the statutory duties are carried out ‘promptly, efficiently and effectively’.

The Law can be found in:

  • the Criminal Procedure and Investigations Act 1996 as amended (CPIA 1996)
  • the Code of Practice, issued under section 23 of the CPIA 1996 (the Code of Practice)
  • Parts 22 of the Criminal Procedure Rules 2011 (as from 3rd October 2011) (the Rules)
  • the Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 1997 issued under section 12 of the CPIA 1996 (the Regulations)
  • the Criminal Procedure and Investigations Act 1996 (Notification of Intention to Call Defence Witnesses) (Time Limits) Regulations 2010 [SI 2010/214]
  • Magistrates’ Courts (Criminal Procedure and Investigations Act 1996) (Disclosure) Rules 1997/703
  • Crown Court (Criminal Procedure and Investigations Act 1996) (Disclosure) Rules 1997/698.

In addition, there is the Crown Court Disclosure Protocol on Unused Material, the Attorney General Guidelines on Disclosure, and the Supplementary Attorney General’s Guidelines on Disclosure: Digitally stored material, which build on the existing law (ACPO and CPS Joint Disclosure Manual).

Interpretation

Unused material is material that may be relevant to the investigation that has been retained but does not form part of the case for the prosecution against the defendant.

The Code of Practice defines ‘relevant material’ as anything that appears to the officer in charge of the investigation to have some bearing on the case.

Disclosure is providing the defence with copies of any material which ‘might reasonably be considered capable of undermining the case of the prosecution, or assisting the case for the defence, having not previously been disclosed.

Statutory disclosure

of The statutory duty to disclose the unused material to the defendant is triggered by the defendant entering a plea ob not guilty at the Magistrates’ Court, transfer of the case to Crown court, a voluntary bill of indictment or the service of the prosecution case under s.51(1) Crime and Disorder Act 1998.

Non-disclosure

Investigating officers and disclosing officers must work with prosecutors to ensure that disclosure obligations are met. Consequences for failing to comply with the CPIA 1996 or the Code of Practice are as follows:

  1. Defendant may raise an abuse of process argument at any trial.
  2. The defendant may be released from his duty to disclose.
  3. Costs may be awarded against the prosecution if it causes delays.
  4. The defendant may be acquitted.
  5. The court may decide to exclude evidence to to any breach of the Code of Practice or CPIA 1996
  6. A conviction may be considered unsafe.
  7. Disciplinary proceedings may be brought against the police officer or prosecutor involved in the case.

The ACPO and CPS Disclosure manual states that if the prosecutor is satisfied that a fair trial cannot take place because of a failure to disclose which to disclose cannot or will not be remedied, including by, for example, making formal admissions, amending the charges or presenting the case in a different way so as to ensure fairness or in other ways, he or she must not continue with the case.

The Defendant and Disclosure

The defendant also has responsibilities under CPIA 1996. Failure to comply with the responsibilities have the following consequences:

  1. The Defendant may lose his or her entitlement to make a section 8 (CPIA 1996) application for additional material.
  2. Any appropriate comments on faults by the accused in disclosure.
  3. The Jury may draw inferences from the defendants failure to disclose when deciding on a verdict.

The provisions of the CPIA 1996 ensures that the prosecution only disclose the material that is required to be disclosed.

The Investigation and Disclosure

The prosecution’s duties under CPIA 1996 is not simply to prepare the schedule of unused material. The CPIA 1996 put an obligation on the prosecution to follow all reasonable lines of enquiry, even if the investigation leads away from the defendant.

The extent of the enquiries made are determined by both the Code of Practice and the CPIA 1996. It also determines, what should be discarded or retained and whether it is considered relevant or not. It also determines whether or not is should be disclosed.

The Application of the CPIA 1996 and Code of Practice for Non – Police Investigators

‘Any person other than a police officer who is charged with the duty of conducting a criminal investigation as defined in the CPIA 1966 shall have regard to the relevant provisions of the Code of Practice and should take these into account in applying their own operating procedures’.

Applicable Disclosure Provisions

Obligations placed on unused material and disclosure are determined by the start date of the investigation.

The investigation start date will determine whether the CPIA 1996 applies, whether the amendments to the CPIA 1996 apply as a result of Part 5 of the Criminal Justice Act 2003, determines which edition of the Code of Practice will apply and whether the 2002 edition should be referred to.

Additional information / reading:

  • where the investigation began before 1 April 1997, the common law disclosure rules will apply. Investigators and prosecutors should refer to the 2000 Guidelines, the 1997 Code and the 2002 JOPI
  • where the investigation began on or after 1 April 1997 but before 4 April 2005, then the unamended Act will apply, and investigators and prosecutors should refer to the above editions of the Code of Practice and the JOPI
  • where the investigation began on or after 4 April 2005, then the CPIA 1996, as amended by the CJA 2003, applies. Investigators and prosecutors should therefore refer to the 2005 editions of the Code of Practice, and this edition of the Disclosure Manual (formerly the JOPI).

All judicial interpretations of the CPIA 1996 and Code of Practice from time to time will continue to apply, (for example, R v H and C (2004) UKHL 3).

The investigator should inform the prosecutor of the date when the investigation began. In cases of any doubt, the prosecutor should establish with the investigator the date when the investigation began. This is so even where the accused has been charged with an offence other than that for which he or she was originally investigated and arrested. It may be that separate investigations were commenced either side of one of the relevant dates (i.e. before 1 April 1997, on or after 1 April 1997 but before 4 April 2005 or, on or after 4 April 2005) as a result of which an accused is charged with separate offences. This may mean that two different disclosure regimes will apply to different charges in the same proceedings.

The above information has been taken from the ACPO and Disclosure Manual. For more information on the obligations of the prosecution disclosure see: www.drivingsolicitors.co.uk

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