Case management and pre-trial hearings - Handling of unused material

Learning Outcomes

After studying this article, you will be able to explain the meaning of unused material in criminal proceedings, outline the statutory and practical duties of the prosecution and defence regarding disclosure, and apply the rules for requesting and challenging disclosure. You will also understand the court’s role in supervising disclosure and be able to identify common exam pitfalls relating to unused material for the SQE1 assessment.

SQE1 Syllabus

For SQE1, you are required to understand the management of unused material as part of case management and pre-trial hearings in criminal practice. In your revision, focus on:

  • the definition and scope of unused material in criminal cases
  • the prosecution’s statutory duty of disclosure, including initial and continuing obligations
  • the defence’s responsibilities, including the defence statement and requests for further disclosure
  • the process for challenging non-disclosure and the court’s supervisory role
  • the practical and legal consequences of disclosure failures

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. What is meant by "unused material" in the context of criminal proceedings?
  2. When must the prosecution disclose unused material to the defence, and what is the test for disclosure?
  3. What is the purpose of a defence statement, and how does it affect the prosecution’s disclosure duties?
  4. How can the defence challenge a failure by the prosecution to disclose relevant unused material?

Introduction

Unused material is a central issue in criminal case management and pre-trial hearings. It refers to evidence gathered by the prosecution during an investigation that is not relied upon as part of the prosecution case at trial. The proper handling and disclosure of unused material is essential to ensure a fair trial and to avoid miscarriages of justice. The main legal framework is set out in the Criminal Procedure and Investigations Act 1996 (CPIA 1996), which imposes clear duties on both the prosecution and the defence.

What is Unused Material?

Unused material includes any information or evidence obtained by the prosecution during the investigation that is not being used as part of the prosecution’s case at trial. This can include:

  • witness statements from individuals not called to give evidence
  • forensic reports not relied upon by the prosecution
  • CCTV footage, photographs, or documents not exhibited at trial
  • communications data, such as emails or phone records, not adduced as evidence

Key Term: unused material Any material obtained by the prosecution during a criminal investigation that is not relied upon as evidence at trial.

The Prosecution’s Duty of Disclosure

The prosecution has a statutory duty to review all unused material and disclose any item that meets the disclosure test. This duty is ongoing and continues throughout the proceedings.

Key Term: disclosure The process by which the prosecution provides the defence with material that may undermine the prosecution case or assist the defence.

The Disclosure Test

The prosecution must disclose any unused material that might reasonably be considered capable of undermining the prosecution case or assisting the defence case. This is sometimes called the "real possibility" or "reasonable possibility" test.

Key Term: disclosure test The requirement that unused material must be disclosed if it might reasonably undermine the prosecution case or assist the defence.

Timing and Stages of Disclosure

Disclosure takes place in two main stages:

  1. Initial (Primary) Disclosure: After the defendant pleads not guilty, the prosecution must review all unused material and disclose any item that meets the disclosure test.
  2. Continuing Duty: The prosecution must keep unused material under review and disclose further items if they later meet the disclosure test, especially after receiving a defence statement.

Examples of Disclosable Material

  • A witness statement that contradicts the prosecution’s main witness
  • CCTV footage that supports the defendant’s alibi
  • Forensic results that do not match the defendant

Worked Example 1.1

A defendant is charged with burglary. The prosecution holds a witness statement from a neighbour who says the defendant was not present at the scene. The prosecution does not intend to call this neighbour at trial.

Answer: The prosecution must disclose this witness statement as unused material because it may assist the defence or undermine the prosecution case.

The Defence’s Role in Disclosure

The defence is not passive in the disclosure process. In Crown Court cases, the defence must serve a defence statement if the case proceeds to trial.

Key Term: defence statement A written document provided by the defence setting out the nature of the defence, issues in dispute, and any specific defences to be relied upon.

The defence statement should:

  • outline the nature of the defence
  • identify points of disagreement with the prosecution
  • set out any particular defences (e.g., alibi, self-defence)
  • indicate any points of law to be raised

Once the defence statement is served, the prosecution must review unused material again in light of the defence case and disclose any further items that now meet the disclosure test.

Requesting Further Disclosure

If the defence believes that additional unused material should be disclosed, they may request it from the prosecution. If the prosecution refuses, the defence can apply to the court for an order requiring disclosure.

Worked Example 1.2

The defence statement in a fraud case indicates that the defendant disputes authorship of certain documents. The prosecution holds handwriting analysis reports not relied upon at trial.

Answer: The prosecution must review these reports in light of the defence statement and disclose them if they might assist the defence or undermine the prosecution case.

The Court’s Supervisory Role

The court oversees the disclosure process and can resolve disputes about disclosure. If the defence applies for disclosure of specific material and the prosecution resists, the court will decide whether the material should be disclosed, balancing the defendant’s right to a fair trial against any competing interests (such as public interest immunity).

Key Term: public interest immunity (PII) A principle allowing the prosecution to withhold disclosure of material if disclosure would harm the public interest (e.g., national security or protection of informants), subject to court approval.

If the prosecution claims PII, the court may review the material privately and decide whether, and to what extent, it should be disclosed.

Consequences of Disclosure Failures

Failure to comply with disclosure duties can have serious consequences:

  • The court may exclude evidence or stay proceedings.
  • Convictions may be quashed on appeal if non-disclosure led to an unfair trial.
  • Prosecutors may face criticism or sanctions.

Exam Warning

Failing to disclose relevant unused material can result in a miscarriage of justice and may lead to the conviction being overturned on appeal. Always consider the impact of non-disclosure on the fairness of the trial.

Practical Tips for SQE1

  • Always identify whether material is "unused" and whether it meets the disclosure test.
  • Remember that the prosecution’s duty is ongoing and must be kept under review.
  • In Crown Court cases, a defence statement is required and triggers further disclosure.
  • The court can order disclosure if the prosecution resists a reasonable request.

Revision Tip

When answering SQE1 questions, focus on the statutory test for disclosure and the practical steps available to the defence if disclosure is refused.

Key Point Checklist

This article has covered the following key knowledge points:

  • Unused material is any material gathered by the prosecution but not relied upon at trial.
  • The prosecution must disclose unused material that might reasonably undermine their case or assist the defence.
  • Disclosure is an ongoing duty and must be kept under review throughout proceedings.
  • The defence must serve a defence statement in Crown Court cases, which can prompt further disclosure.
  • The court supervises disclosure and can order disclosure or review claims of public interest immunity.
  • Failure to disclose relevant unused material can result in serious consequences, including appeals and case dismissal.

Key Terms and Concepts

  • unused material
  • disclosure
  • disclosure test
  • defence statement
  • public interest immunity (PII)
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Pleased to share that I have successfully passed the SQE1 exam on 1st attempt. With SQE2 exempted, I’m now one step closer to getting enrolled as a Solicitor of England and Wales! Would like to thank my seniors, colleagues, mentors and friends for all the support during this grueling journey. This is one of the most difficult bar exams in the world to undertake, especially alongside a full time job! So happy to help out any aspirant who may be reading this message! I had prepared from the University of Law SQE Manuals and the AI powered MCQ bank from PastPaperHero.

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