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).
The prosecution’s duty is owed to the defence and not the court. The prosecution has a duty to:
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.
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:
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.
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.
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:
This list is merely guidance and not an exhaustive list of all materials which can fall under PII material.
Nicola is a dual qualified journalist and non-practising solicitor. She is a legal journalist, editor and author with more than 20 years' experience writing about the law.
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