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:
Firstly, there is an obligation upon the prosecution to notify the accused of all the evidence upon which they intend to rely.
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.
Disclosure provides for the accused to be able to inspect the materials covered by the provisions. This could be done by giving the documents and other materials to the defendant. Further, it covers circumstances where the defence is allowed to inspect such material at a reasonable time and place.
Another important feature of the duty is that it is a continuous one. Therefore, if at any time before the accused has been acquitted or convicted of the alleged offence, the prosecutor forms the opinion that there is material which might undermine his case, or assist that of the defendant then that material must be disclosed. That disclosure needs to be done as soon as it is reasonably practicable.
When can material be protected from disclosure?
Certain types of materials can be protected from disclosure and those include when it would not be in the public’s best interest for the material to be disclosed. This is also known as invoking public interest immunity (PII). According to the CPIA 1996 all disclosure duties are made subject to PII.
It further applies to the judicial power to make order for disclosure. Consequently, where it would be contrary to the public interest, there is no such power.
Additional guidance is provided by the Code of Practice supplementing the Act. It requires for the disclosure officer to list on a sensitive schedule the materials which if disclosed would give a real risk of serious prejudice to an important public interest. He is required to further specify the reason for such belief.
The type of material which could be protected by PII
The Code itself gives example to sensitive material which can fall within that description which includes material:
Relating to national security;
Given in confidence;
Relating to the identity or activities of informers or under-cover police officers;
Relating to the location of premises used for police surveillance;
Revealing surveillance techniques or other methods of detecting crime;
Relating to a child or a young person and generated e.g., by a local authority department for social services.
This list is and has been used as a mere guidance and not an exhaustive list of all materials to fall under the category.
It is important to note that the decision for a material to be protected on the basis of PII is not vested in the prosecutor but it is the court which is the ultimate arbitrator in those circumstances.