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Initial Details of the Prosecution Case (Advance Information)

Principle

A defendant charged with an offence that can be tried in the magistrates' court is entitled to receive details of the prosecution case before: 

  • deciding whether to elect trial at Crown Court; 
  • deciding whether to consent to summary trial; or 
  • being put to plea, if s/he is under 18

The provision of these initial details is regulated by Part 10 of the Criminal Procedure Rules 2010.

Guidance

Review

The prosecutor must review the case and make an informed decision about whether each witness statement is to constitute used or unused material and what is to be served on the defendant.

Service of the statement of a witness (or part of it) as initial details of the prosecution case will restrict the ability of the prosecution not to call a witness at a summary trial of an either way offence.

The reviewer needs to record clear instructions as to what material should be provided. The initial details package should then be prepared in accordance with the reviewer's instructions.

Particular care is needed with material in digital format to ensure that that irrelevant or unnecessary information is not served. A single DVD containing (for example) telephone billing information, cell site analysis or CCTV material may contain a very large amount of material, ranging from the irrelevant to the highly sensitive.

The early service of unused material is dealt with in the Disclosure Manual elsewhere in Legal Guidance.

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Details to be supplied

The Rules require the service only of that evidence upon which the prosecution proposes to rely.

Rule 10.3 requires that initial details of the prosecution case must include: 

  • a summary of the evidence on which that case will be based; or 
  • any statement, document or extract setting out facts or other matters on which that case will be based; or 
  • any combination of such a summary, statement, document or extract; and 
  • the defendant's previous convictions.

The right to a fair trial under Article 6 of the ECHR (Archbold 16-57) does not require that prosecution witness statements in summary proceedings have to be disclosed to the defence before trial: R v Stratford JJ., ex p. Imbert [1999] 2 Cr.App.R. 276, DC.

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Police caution

A defendant is entitled to receive disclosure of material necessary to enable his/her legal advisors to assess the prosecution case and give informed advice as to whether to consent (DPP v Ara [2002] 1 Cr. App. R.16).

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Non-Compliance

Part 10 does not contain an express requirement that the court must adjourn the proceedings where the prosecution have failed to comply, as was the case under the former provisions (Magistrates' Courts (Advance Information) Rules 1985 and Criminal Procedure Rules 2005).

Nevertheless, it is likely that the justices will not proceed, unless they can satisfy themselves that no prejudice would be caused to the defendant by proceeding. See the following cases (all decided under the former provisions):

It is submitted that decisions under the earlier Rules are still applicable.

The court in R v Calderdale Justices (on the application of Donahue) 18 October 2000 held that the magistrates had erred in refusing the defendant's request for adjournment when a video of the incident had not been given to the defendants. The purpose of the prosecution disclosing such information was to enable the defendant to make an informed choice as to his plea and mode of trial. The Crown conceded that a video was a 'document, for the purpose of the relevant rule.

In R (on the application of DPP) v Croydon Magistrates Court (2001) the court did not follow Calderdale but held that 'DNA profiling' as referred to in the case summary did not constitute a 'document' which the prosecution were required to serve.

Section 48(3) of the Criminal Law Act 1977 prevents an appeal against conviction on the ground that a requirement imposed by the relevant Rule was not complied with by the prosecutor.  

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Procedure

Service

Rule 10.2 provides that the prosecutor must provide initial details of the prosecution case by:

  • serving those details on the court officer; and 
  • making those details available to the defendant at or before the beginning of the day of the first hearing.

as soon as is practicable or, in any event, no later than the beginning of the day of the first hearing.

Prosecutors should normally serve written statements (or parts thereof) when they are available, and should also supply a copy of any other document that they intend to rely on. If a copy cannot be supplied the defence must be allowed to inspect the original or a copy.

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Timing

Initial details should be served on the defence on the first of the following events: 

  • A request by the defendant or his/her solicitor;
  • Notification by the court that legal aid has been granted, or 
  • First court appearance by a defendant on bail.

A request for initial details may be made by a defendant or his/her legal representative orally or in writing.

A record must be made on the file when initial details have been provided. The date of provision and the recipient should be noted.

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Withholding details

There is no specific provision in Part 10 for withholding some or all of the evidence.

If the prosecutor considers that providing a particular statement would lead to witness intimidation or some other interference with the course of justice the prosecutor should provide a suitably prepared summary instead (as permitted by Rule 10.3).

Useful Links

R v Calderdale Magistrates' Court, ex p. Donahue and Cutler [2001] Crim. L.R. 141, DC;
King v Kucharz [1989] C.O.D. 469, DC;
R v (on the application of AP) Leeds Youth Court [2001] EWHC Admin 215; 

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