Case management and pre-trial hearings - Disclosure obligations for prosecution and defence

Learning Outcomes

This article outlines the key duties of disclosure placed upon the prosecution and the defence in criminal proceedings. After reading this article, you should understand the statutory framework under the Criminal Procedure and Investigations Act 1996 (CPIA 1996), including the prosecution's initial and ongoing duties regarding unused material, and the requirements for defence statements, including alibi details. This knowledge will enable you to identify and apply the relevant rules concerning disclosure obligations in SQE1-style assessments, recognising the practical implications for case management and trial fairness.

SQE1 Syllabus

For SQE1, you are required to understand the principles and procedures governing disclosure in criminal cases as part of case management. This includes appreciating the distinct responsibilities of the prosecution and defence under the CPIA 1996 framework. Your revision should focus on:

  • The prosecution's initial duty to disclose unused material that might undermine its case or assist the defence.
  • The prosecution's continuing duty of disclosure throughout the proceedings.
  • The rules concerning sensitive material and public interest immunity.
  • The requirements for defence disclosure, including the content and timing of defence statements.
  • Specific requirements relating to the disclosure of alibi defences.
  • The consequences of failing to comply with disclosure obligations, including the potential for adverse inferences.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Under the CPIA 1996, the initial test for prosecution disclosure requires the prosecution to disclose unused material that:
    1. Is relevant to the case.
    2. Might reasonably be considered capable of undermining the prosecution case or assisting the defence case.
    3. Will definitely prove the defendant's innocence.
    4. Has been specifically requested by the defence.
  2. In which court is the service of a defence statement compulsory for the defendant?
    1. Magistrates' Court only.
    2. Crown Court only.
    3. Both Magistrates' Court and Crown Court.
    4. Neither court; it is always voluntary.
  3. If a defendant fails to mention a fact in their defence statement which they later rely on at trial in the Crown Court, what potential consequence might arise under the CPIA 1996?
    1. The trial must be stopped.
    2. The evidence related to that fact is automatically excluded.
    3. The court or jury may draw adverse inferences.
    4. The prosecution must be granted an adjournment.

Introduction

Disclosure refers to the process by which the parties in criminal proceedings provide relevant information and material to each other. This process is essential for ensuring a fair trial, as it allows the defence to understand the case against the defendant and prepare accordingly, while also ensuring the prosecution is aware of the nature of the defence case. The primary legislation governing disclosure in England and Wales is the Criminal Procedure and Investigations Act 1996 (CPIA 1996), supported by associated Codes of Practice and guidelines such as the Attorney General's Guidelines on Disclosure. Effective case management hinges on timely and proper disclosure by both sides.

Prosecution's Duty of Disclosure

The prosecution bears the primary burden of disclosure in criminal proceedings. This duty is designed to ensure that the defendant has access to material which might undermine the prosecution's case or assist the defence, thereby supporting the principle of a fair trial (Article 6 ECHR).

Initial Disclosure

The prosecution's initial duty arises after a not guilty plea in the magistrates' court or when a case is sent to the Crown Court. Under s 3 CPIA 1996, the prosecutor must:

(a) disclose to the accused any prosecution material which has not previously been disclosed and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, or
(b) give to the accused a written statement that there is no material of that description.

This requires the prosecution to review all material gathered during the investigation, whether they intend to rely on it ('used material') or not ('unused material').

Key Term: Unused material
Material obtained during a criminal investigation which the prosecution does not intend to rely upon as part of its case against the defendant at trial. This can include witness statements, forensic reports, digital evidence, or interview notes.

The test for disclosure is objective: would the material, in the eyes of a reasonable prosecutor, potentially undermine the prosecution or assist the defence? This duty is proactive; the prosecution must make this assessment without needing a specific request from the defence.

Continuing Duty

The prosecution's duty of disclosure is not a one-off event; it continues throughout the proceedings (s 7A CPIA 1996). Prosecutors must keep under review whether any previously undisclosed material meets the disclosure test, especially in light of the defence case as it develops (often revealed in the defence statement). If material subsequently meets the test, it must be disclosed as soon as reasonably practicable.

Sensitive Material and Public Interest Immunity (PII)

Sometimes, the prosecution may hold material which meets the disclosure test but which cannot be disclosed without risking harm to a significant public interest (e.g., revealing the identity of an informant, compromising national security, or exposing sensitive investigative techniques). This is known as sensitive material.

If the prosecution wishes to withhold sensitive material that meets the disclosure test, it must apply to the court for a ruling on Public Interest Immunity (PII). The court will balance the public interest in non-disclosure against the defendant's right to a fair trial. The court may rule that the material need not be disclosed, must be disclosed (perhaps in edited form), or, in rare cases, that a fair trial is impossible without disclosure, potentially leading to the prosecution being stopped.

Defence Disclosure

While the primary disclosure burden lies with the prosecution, the defence also has obligations under the CPIA 1996, principally concerning the defence statement and the details of defence witnesses.

Defence Statement

The defence statement outlines the nature of the accused's defence. Its service is:

  • Compulsory in the Crown Court.
  • Voluntary in the magistrates' court.

Where compulsory (Crown Court), it must be served within 28 days of the prosecution complying with initial disclosure. Where voluntary (magistrates' court), if served, it must be within 14 days of prosecution initial disclosure.

Key Term: Defence statement
A written statement served by the defence setting out the nature of the accused's defence, indicating the matters of fact on which issue is taken with the prosecution, explaining why, setting out particulars of matters of fact relied upon, and indicating any points of law or authorities to be relied upon.

The content requirements are set out in s 6A CPIA 1996:

  • Set out the nature of the defence.
  • Indicate the matters of fact on which the defendant takes issue with the prosecution.
  • Explain the reason for taking issue with those facts.
  • Set out particulars of fact on which the defendant intends to rely.
  • Indicate any point of law (including admissibility or abuse of process) and any authority relied upon.
  • If relying on alibi, provide specific details.

Key Term: Alibi
A defence asserting that the accused was elsewhere at the time the alleged offence was committed.

If the defence involves an alibi, the defence statement must include the name, address, and date of birth of any alibi witness(es), or as many details as are known to the defendant (s 6A(2) CPIA 1996). This allows the police to investigate the alibi before trial.

Disclosure of Defence Witnesses

Regardless of whether a defence statement is served, the defence must notify the prosecution and the court of the details (name, address, DOB) of any witness they intend to call at trial, other than the defendant themself (s 6C CPIA 1996). This must be done within the relevant time limits for the defence statement.

Consequences of Non-Compliance

Failure by the defence to comply with disclosure obligations in the Crown Court (or voluntarily in the magistrates' court if a statement is served) can have adverse consequences under s 11 CPIA 1996. These failures include:

  • Failing to serve a defence statement (Crown Court).
  • Serving it late.
  • Setting out inconsistent defences.
  • Putting forward a defence at trial not mentioned in the statement.
  • Relying on a matter at trial which should have been disclosed (e.g., an alibi witness not notified).
  • Calling a witness not previously notified under s 6C.

If such a fault occurs, the court or any other party may make comment, and the court or jury may draw such adverse inferences as appear proper when deciding whether the defendant is guilty. However, a defendant cannot be convicted solely on the basis of such an inference.

Worked Example 1.1

David is charged with robbery and is awaiting trial in the Crown Court. His defence is alibi; he claims he was at a party hosted by his friend, Chloe, at the time of the offence. David's solicitor serves a defence statement outlining this alibi but fails to include Chloe's address or date of birth, merely stating her name. The prosecution cannot locate Chloe before the trial. At trial, David gives evidence of his alibi and calls Chloe to testify.

What potential issue arises from the defence disclosure?

Answer: The defence failed to provide full particulars of the alibi witness, Chloe, as required by s 6A(2) CPIA 1996 (specifically her address and DOB). This failure constitutes a fault under s 11 CPIA 1996. Consequently, the judge may allow the prosecutor to comment on this failure, and the jury may be directed that they can draw an adverse inference when considering David's guilt – potentially concluding that the alibi was fabricated or that the defence sought to prevent the police from investigating it properly.

Case Management and Disclosure

The disclosure process is actively managed by the courts to ensure efficiency and fairness.

In the magistrates' court, case management directions regarding disclosure are typically given at the first hearing after a not guilty plea or at a specific case management hearing. Standard directions include timelines for prosecution initial disclosure and voluntary defence disclosure.

In the Crown Court, disclosure is managed primarily through the Plea and Trial Preparation Hearing (PTPH). At the PTPH, the judge will set a timetable for prosecution initial disclosure and the service of the compulsory defence statement. The judge will also address any anticipated disclosure issues. Further Case Management Hearings (FCMH) may be held if significant disclosure problems arise.

The court has powers to resolve disputes regarding disclosure, such as ordering the prosecution to disclose specific material under s 8 CPIA 1996 (following service of a defence statement) or ruling on PII applications.

Exam Warning

Remember that the duty of disclosure on the prosecution is significantly broader than that on the defence. The prosecution must disclose material that undermines its own case or assists the defence. The defence primarily discloses the nature of its case. Do not confuse these distinct obligations in assessment questions.

Key Point Checklist

This article has covered the following key knowledge points:

  • Disclosure is governed primarily by the CPIA 1996.
  • The prosecution has an initial duty (s 3) and a continuing duty (s 7A) to disclose unused material that might reasonably undermine its case or assist the defence.
  • Sensitive material may be withheld under Public Interest Immunity (PII) subject to a court order.
  • The defence must serve a defence statement in the Crown Court (s 5), outlining the defence case and providing alibi details if applicable (s 6A). Service is voluntary in the magistrates' court.
  • The defence must notify the prosecution of all defence witnesses (s 6C).
  • Failure to comply with defence disclosure obligations can lead to adverse inferences being drawn at trial (s 11).
  • The courts actively manage the disclosure process through case management hearings and the PTPH.

Key Terms and Concepts

  • Unused material
  • Defence statement
  • Alibi
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