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Chapter 1: Introduction

Introduction

1.1 These instructions explain how the Police Service and the CPS('the prosecution team') have agreed to fulfil their duties to disclose unused material to the defence.  These duties arise under statute and at common law.  It is important that the
prosecution team adopt consistent practices across England and Wales.

1.2 These instructions contain advice on efficient file management and take into account the provisions in the Prosecution Team Manual of Guidance for the Preparation, Processing and Submission of Files and other agreements on operational issues reached between the Association of Chief Police Officers (ACPO) and the CPS.  This means that on occasions these instructions require certain actions to be taken in addition to those required by the CPIA 1996 and the Code of Practice.  This is designed to ensure that the statutory duties are carried out promptly, efficiently and effectively.

1.3 The current law is set down in:

  • the Criminal Procedure and Investigations Act 1996 as amended (CPIA 1996)
  • the Code of Practice, issued under section 23 of the CPIA 1996 (the Code of Practice)
  • Parts 22 of the Criminal Procedure Rules 2011 (as from 3rd October 2011) (the Rules)
  • the Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 1997 issued under section 12 of the CPIA 1996 (the Regulations)
  • the Criminal Procedure and Investigations Act 1996 (Notification of Intention to Call Defence Witnesses) (Time Limits) Regulations 2010 [SI 2010/214]
  • Magistrates' Courts (Criminal Procedure and Investigations Act 1996) (Disclosure) Rules 1997/703
  • Crown Court (Criminal Procedure and Investigations Act 1996) (Disclosure) Rules 1997/698.

In addition, there is the Crown Court Disclosure Protocol on Unused Material, the Attorney General Guidelines on Disclosure, and the Supplementary Attorney General's Guidelines on Disclosure: Digitally stored material, which build on the
existing law. 

Interpretation

1.5. For the purpose of these instructions, references to unused material are to material that may be relevant to the investigation that has been retained but does not form part of the case for the prosecution against the accused.

1.6. Relevant material is defined in the Code of Practice as anything that appears to an investigator, or the officer in charge of an investigation or the disclosure officer to have some bearing on any offence under investigation or any person being investigated or on the surrounding circumstances unless it is incapable of having any impact on the case.

1.7. Revelation refers to the police alerting the prosecutor to the existence of relevant material that has been retained in the investigation. Revelation to the prosecutor does not mean automatic disclosure to the defence.

1.8. Disclosure refers to providing the defence with copies of, or access to, any material which might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused, and which has not previously been disclosed. In this manual, this is referred to as 'the Disclosure Test'. Prosecutors should note that this test does not include an assessment as to whether the material is or could be admissible in a trial.

Triggers for statutory disclosure

1.9. The prosecutor's statutory duty to disclose unused material to the accused is triggered by:

  • a plea of not guilty in the magistrates' court
  • committal or transfer of a case for trial at the Crown court
  • the preferment of a voluntary bill of indictment
  • the service of the prosecution case following the sending of an accused to the Crown court under section 51(1) Crime and Disorder Act 1998.

Consequences of non-disclosure

1.10 Investigators and disclosure officers (Investigators and disclosure officers includes NCA staff, however designated) must be fair and objective and must work together with prosecutors to ensure that disclosure obligations are met. A failure by the prosecutor or the police to comply with their respective obligations under the CPIA 1996 or Code of Practice may have the following consequences:

  • the accused may raise a successful abuse of process argument at the trial
  • the prosecutor may be unable to argue for an extension of the custody time limits
  • the accused may be released from the duty to make defence disclosure
  • costs may be awarded against the prosecution for any time wasted if prosecution disclosure is delayed
  • the court may decide to exclude evidence because of a breach of the CPIA 1996 or Code of Practice, and the accused may be acquitted as a result
  • the appellate courts may find that a conviction is unsafe on account of a breach of the CPIA 1996 or Code of Practice
  • disciplinary proceedings may be instituted against the prosecutor or a police officer.

1.11 It is therefore important to ensure that the duties imposed by the CPIA 1996 and Code of Practice are scrupulously observed. If the prosecutor is satisfied that a fair trial cannot take place because of a failure to disclose which cannot or will not be remedied, including by, for example, making formal admissions, amending the charges or presenting the case in a different way so as to ensure fairness or in other ways, he or she must not continue with the case.

1.12 The accused has responsibilities under the CPIA 1996 and failure to comply with them may have the following consequences:

  • loss of entitlement to make an application under section 8 of the CPIA 1996 for disclosure of additional material
  • appropriate comments on any faults by the accused in disclosure
  • the court or jury can draw inferences from any failure in deciding whether the accused is guilty of an offence.

1.13 The proper application of the provisions of the CPIA 1996 by the prosecution team will ensure that only material required to be disclosed by the CPIA 1996 is disclosed. There is no place in law or otherwise for 'blanket' disclosure. Such practice leads to inconsistency and uncertainty, unnecessary work, and unnecessary costs to the prosecution, defence and public funds.

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The link between disclosure and the investigation

1.14. The prosecution team's duties under the CPIA 1996 are not simply about compiling schedules of unused material as part of preparation for court. At the heart of every investigation is the obligation, in the CPIA 1996 and Code of Practice, to pursue all reasonable lines of enquiry whether these point towards or away from the suspect.

1.15. In the early stages of the investigation it may not be clear whether an offence has been committed, whether a prosecution is likely to follow and whether material obtained may be used in evidence or will be unused. Following reasonable lines of enquiry and recording and retaining relevant material involve the exercise of considerable professional expertise.

1.16. The CPIA 1996 and Code of Practice determine the extent of the enquiries that should be made, the material that should be discarded or retained, and the material that is considered relevant, revealed and, where required, disclosed. The distinction between evidential and unused material often only becomes apparent as the investigation progresses. The prosecution team should take the opportunity to confirm or rebut potential and proffered defences, and should be aware of the extent to which any disclosable material might weaken the case. A safe and successful prosecution requires a dedicated and professional approach.

Application of the CPIA 1996 and Code of Practice to Non-Police Investigators

1.17. Any person other than a police officer who is charged with the duty of conducting a criminal investigation as defined in the CPIA 1996 shall have regard to the relevant provisions of the Code of Practice and should take these into account in applying their own operating procedures.

The Applicable Disclosure Provisions

1.18. The obligations in relation to unused material and disclosure are determined by the date on which the investigation began.

1.19. The date on which the investigation began will determine:

  • whether the CPIA 1996 applies at all
  • whether the amendments to the CPIA 1996 as a result of Part 5 of the Criminal Justice Act 2003 apply
  • which edition of the Code of Practice will apply (i.e. the 1997 edition, or the 2005 edition) should be referred to
  • whether the 2002 edition of the Joint Operational Instructions (JOPI) or this edition of the Disclosure Manual should be referred to.

1.20. Therefore

  • where the investigation began before 1 April 1997, the common law disclosure rules will apply. Investigators and prosecutors should refer to the 2000 Guidelines, the 1997 Code and the 2002 JOPI
  • where the investigation began on or after 1 April 1997 but before 4 April 2005, then the unamended Act will apply, and investigators and prosecutors should refer to the above editions of the Code of Practice and the JOPI
  • where the investigation began on or after 4 April 2005, then the CPIA 1996, as amended by the CJA 2003, applies. Investigators and prosecutors should therefore refer to the 2005 editions of the Code of Practice, and this edition of the Disclosure Manual (formerly the JOPI).

1.21. All judicial interpretations of the CPIA 1996 and Code of Practice from time to time will continue to apply, (for example, R v H and C (2004) UKHL 3).

1.22. The investigator should inform the prosecutor of the date when the investigation began. In cases of any doubt, the prosecutor should establish with the investigator the date when the investigation began. This is so even where the accused has been charged with an offence other than that for which he or she was originally investigated and arrested. It may be that separate investigations were commenced either side of one of the relevant dates (i.e. before 1 April 1997, on or after 1 April 1997 but before 4 April 2005 or, on or after 4 April 2005) as a result of which an accused is charged with separate offences. This may mean that two different disclosure regimes will apply to different charges in the same proceedings.

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