Prosecution duty of disclosure

There is a duty on the prosecution to disclose certain types of material to the defence so they are prepared to answer the case against them. This duty has developed at common law in an effort to ensure a fair trial for the accused and is now laid out in the Criminal Procedure and Investigations Act 1996 (CPIA 1996) (as amended by the Criminal Justice Act 2003).

What materials are to be disclosed?

The prosecution’s duty is owed to the defence and not the court. The prosecution has a duty to:

  • notify the accused of all the evidence upon which they intend to rely;
  • make available to the defence any material of relevance to the case which they do not intend to use (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 statement to provide information regarding evidence to be used at trial.

What falls within the definition of unused material?

Under CPIA 1996, the prosecutor is under a duty to disclose previously undisclosed materials which might reasonably be considered capable of undermining the case for the prosecution or which might assist the case for the accused.

According to the Attorney General’s Guidelines on Disclosure, examples of material that might reasonably be considered capable of undermining the prosecution case or of assisting the case for the accused are:

  • any material casting doubt upon the accuracy of any prosecution evidence;
  • any material which may point to another person, whether charged or not (including a co-accused) having involvement in the commission of the offence;
  • any material which may cast doubt upon the reliability of a confession;
  • any material that might go to the credibility of a prosecution witness;
  • any material that might support a defence that is either raised by the defence or apparent from the prosecution papers;
  • any material which may have a bearing on the admissibility of any prosecution evidence.

What is prosecution material?

The term prosecution material has a wide meaning and covers both materials in physical possession of the prosecution and other materials which the prosecutor has been allowed to inspect. If no such material exists, the accused should be given a written statement to inform them of that.

Defining disclosure

Disclosure provides for the accused to be able to inspect the materials which form part of the evidence against them and any unused materials. This should be at a reasonable time and place.

The duty to disclose is a continuous one. Therefore, if at any time before the accused has been acquitted or convicted of the alleged offence, the prosecutor feels there is material which might undermine their case, or assist that of the defendant, that material must be disclosed. That disclosure needs to be done as soon as it is reasonably practicable.

When material can be protected from disclosure?

Certain types of materials can be protected from disclosure if they give rise to a real risk of serious prejudice to an important public interest. This is also known as invoking public interest immunity (PII).

The disclosure officer must list on a sensitive schedule the materials which if disclosed would give a real risk of serious prejudice to an important public interest. They are required to specify the reason for such belief.

According to the Code of Practice which supplements CIPA 1996, sensitive material which can be covered by PII includes that which:

  • relates to national security;
  • has been received from the intelligence and security agencies;
  • relates to intelligence from foreign sources which reveals sensitive intelligence gathering methods;
  • has been given in confidence;
  • relates to the identity or activities of informants, or undercover police officers, or witnesses, or other persons supplying information to the police who may be in danger if their identities are revealed;
  • reveals the location of any premises or other place used for police surveillance, or the identity of any person allowing a police officer to use them for surveillance;
  • reveals, either directly or indirectly, techniques and methods relied upon by a police officer in the course of a criminal investigation, for example covert surveillance techniques, or other methods of detecting crime;
  • might facilitate the commission of other offences or hinder the prevention and detection of crime if diclosed;
  • search warrants were obtained on the strength of;
  • contains details of persons taking part in identification parades;
  • was supplied to an investigator during a criminal investigation which has been generated by an official of a body concerned with the regulation or supervision of bodies corporate or of persons engaged in financial activities, or which has been generated by a person retained by such a body;
  • was supplied to an investigator during a criminal investigation which relates to a child or young person and which has been generated by a local authority social services department, an Area Child Protection Committee or other party contacted by an investigator during the investigation;
  • relates to the private life of a witness.

This list is merely guidance and not an exhaustive list of all materials which can fall under PII material.