Prosecution duty of disclosure in the Crown Court

What is the nature of the prosecution’s duty?

There is a duty on the prosecution to disclose certain types of material to the defence so that they can be prepared to meet that case. Alternatively, if it is clear the material is overwhelming, the defendant can choose to plead guilty and receive credit in reduction of sentence. 

This duty has developed through the judiciary at common law in the effort to ensure a fair trial for the accused. Nowadays, those principles could be found in the Criminal Procedure and Investigations Act 1996.

What materials are to be disclosed?

The prosecution’s duty is defined in such a way as to be clear it is owed to the defence and not the court. There are two main aspects of that duty:

  1. Firstly, there is an obligation upon the prosecution to notify the accused of all the evidence upon which they intend to rely.

  2. Secondly, the prosecution are under a duty to make available to the defence any material of relevance to the case which they do not intend to use. Those materials are also often referred to as ‘unused material’.

The second aspect of the duty is the main difference between prosecution and defence disclosure, as the accused is only required in his defence case statement to provide information regarding evidence to be used at trial.

What falls within the definition of unused material?

Under the provisions of the Criminal Procedure and Investigations Act 1996, the prosecutor is under a duty to disclose previously undisclosed materials to the accused in two situations. Firstly, it is within that category if it might reasonably be considered capable of undermining the case for the prosecution or secondly if it might assist the case for the accused.

The two categories and the decision

In the definition of undermining the prosecution’s case are included cases not only where the evidence is fatal to their case. The meaning is wider than those situations. Similar approach has been taken in considering what might reasonably assist the case for the accused.

In practice, whether a material falls within those definitions is decided by the prosecutor, who uses his professional judgement.

What is prosecution material?

The term prosecution material has a wide meaning and it covers both materials in physical possession of the prosecution and other materials, which the prosecutor has been allowed to inspect.

In the event of no such material existing, the accused should be given a written statement to inform him of that.

Defining disclosure

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For more information on:

  • When can material be protected from disclosure?
  • The type of material which could be protected by PII