Advanced Search

Chapter 12: Applying the Disclosure Test

12.1. The prosecutor must always inspect, view or listen to any material that could reasonably be considered capable of undermining the prosecution case against the accused or of assisting the case for the accused.

12.2 Where the prosecutor has reason to believe that the disclosure officer has not inspected, viewed or listened to material, a request that this be done should be made.

12.3 Additionally, where the prosecutor believes there are further reasonable and relevant lines of inquiry to pursue, the officer in charge of the investigation should be told as soon as possible.

12.4 What amounts to material which might satisfy the disclosure test will always involve considering:

  • the nature and strength of the case against the accused
  • the essential elements of the offence alleged
  • the evidence upon which the prosecution relies
  • any explanation offered by the accused, whether in formal interview or otherwise
  • what material or information has already been disclosed.

12.5. The case against each accused must be considered separately.

12.6 Normally, the result of applying the disclosure test will mean that material disclosable to one accused is likely to be disclosable to all co-accused in the same proceedings. However, disclosure must be considered separately for all accused and where the particular circumstances dictate, disclosure of different material may have to be made. Prosecutors should proceed in accordance with R v Peter Adams (1997) (transcript available through Lawtel). Depending on the nature of the material the prosecutor can disclose differentially, without the need to resort to the court (unless a PII application is required - see next chapter). If one accused seeks disclosure of material given to a co-accused, he or she can apply to the judge in the usual way (see the section Defence Applications for Further Disclosure).

12.7 In deciding what material satisfies the disclosure test the prosecutor must pay particular attention to material that has potential to weaken the prosecution case or is inconsistent with it. Material can be considered to have such potential if it has an adverse effect on the strength of the prosecution case.

12.8. Material can have such an adverse effect:

  • by the use made of it in cross-examination and
  • by its capacity to support submissions that could lead to
    • the exclusion of evidence
    • a stay of proceedings
    • a court or tribunal finding that any public authority had acted incompatibly with the accused's rights under the Human Rights Act 1998
  • by its capacity to suggest an explanation or partial explanation of the accused's actions.

12.9 Any material that can be considered to have an adverse effect on the strength of the prosecution case must be disclosed (subject to public interest immunity). This will include anything that goes toward an essential element of the offence charged and that points away from the accused having committed the offence with the requisite intent.

12.10 Anything that has potential to weaken the prosecution case or which is inconsistent with an essential part of it will amount to material that must be disclosed to the accused.  Prosecutors are reminded that there is no category or class of material which is subject to "automatic" disclosure and the disclosure test must be applied on a case by case basis.  This principle was highlighted in the case of R v Olu and 2 others [2010] EWCA Crim 2975 where Lord Justice Thomas observed:

    "... difficulties should not have arisen if the relevant issues had been identified and disclosure carried out in accordance with the CPIA and the Guidelines in a "thinking manner" and not a box ticking exercise."

Other comments made by Thomas LJ should be read in the context of the particular case and not be taken as a general direction as to what should happen in all cases. Previous accounts given by witnesses (particularly descriptions) must, however, be considered with scrupulous care and any doubts resolved in favour of disclosure.

12.11. Examples of material having the potential to weaken the prosecution case or to be inconsistent with it, are:

  • any material casting doubt upon the accuracy of any prosecution evidence
  • any material which may point to another person, whether charged or not (including the co-accused) having involvement in the commission of the offence
  • any material which may cast doubt upon the reliability of a confession
  • any material that might go to the credibility of a prosecution witness
  • any material that might support a defence that is either raised by the defence or apparent from the prosecution papers. If the material satisfies the disclosure test, it should be disclosed even though it suggests a defence inconsistent with or alternative to one already advanced by the accused
  • any material which may have a bearing on the admissibility of any prosecution evidence
  • any material that might assist the accused to cross-examine prosecution witnesses, as to credit and/or to substance
  • any material that might enable the accused to call evidence or advance a line of enquiry or argument
  • any material that might explain or mitigate the accused's actions.

Previous convictions and/or cautions recorded against a prosecution witness should be disclosed where such convictions/cautions satisfy the test for disclosure, by being reasonably capable of undermining the prosecution case against the accused, or assisting the case for the accused. For detailed guidance on this issue see Guidance on Disclosure of Previous Convictions of Witnesses.

12.12. Prosecutors should also bear in mind that while items of material viewed in isolation may not satisfy the disclosure test, several items together could have that effect.

12.13. Material which satisfies the disclosure test is likely to be different in each case, and different for each accused.

12.14. Disclosure officers and prosecutors should give careful consideration to the type of material described below. Experience suggests that it has potential to satisfy the disclosure test where it relates to the defence being put forward either at the initial stage or in particular, following receipt of a defence statement. The material is:

  • those recorded scientific or scenes of crime findings retained by the investigator which relate to the accused, and are linked to the point at issue, and have not previously been disclosed
  • where identification is, or may be in issue, all previous inconsistent descriptions of suspects, however recorded, together with all records of identification procedures in respect of the offence(s) and photographs of the accused taken by the investigator around the time of his arrest
  • information that any prosecution witness has received, has been promised or has requested any payment or reward in connection with the case
  • plans of crime scenes or video recordings made by investigators of crime scenes
  • names, within the knowledge of investigators, of individuals who may have relevant information and whom investigators do not intend to interview
  • records which the investigator has made of information which may be relevant, provided by any individual (such information would include, but is not limited to, records of conversation and interviews with any such person).

12.15. Disclosure of video recordings or scientific findings by means of supplying copies may well involve delay or otherwise not be practicable or desirable, in which case the investigator should make reasonable arrangements for the video recordings or scientific findings to be viewed by the defence.

12.16. Experience suggests that any material which relates to the accused's mental or physical health, intellectual capacity, or to any ill treatment which the accused may have suffered when in the investigator's custody is likely to have the potential for casting doubt on the reliability of an accused's purported confession, and prosecutors should pay particular attention to any such material in the possession of the prosecution.

12.17. It is not necessary, prior to the receipt of a defence statement, to speculate about every possible defence or submission that may be raised. Nevertheless, where a distinct explanation has been put forward by the accused, or is apparent from the circumstances of the case, it must be considered in the context of assessing whether there is any material requiring disclosure. This consideration should take place at the earliest opportunity, and does not need to await the receipt of a defence statement.

12.18. In deciding what material should be disclosed (at any stage of the proceedings) prosecutors must determine whether the material satisfies the disclosure test. Prosecutors should resolve any doubt they may have in favour of disclosure, unless the material is sensitive and to be placed before the court in a PII application. Prosecutors are reminded that the consideration whether material satisfies the disclosure test does not include an assessment as to whether such material is or could be admissable in a trial.

12.19. If material substantially undermines the prosecution case, assists the accused or raises a fundamental question about the prosecution, the prosecutor will need to reassess the case in accordance with the Code for Crown Prosecutors, and decide after consulting with the police whether the case should continue.

Top of page

Disclosure procedure

12.20. Disclosure means providing the defence with any prosecution material which has not previously been disclosed to the accused, and which satisfies the disclosure test. If there is no such material the prosecutor must inform the defence in writing. Specimen letters are included at Annex C. Disclosure to the defence must take place as soon as reasonably practicable after the duty arises.

12.21. The prosecutor is responsible for ensuring that effective disclosure of material falling to be disclosed under the CPIA 1996 is made to the accused. Disclosure to the accused can be achieved by either copying the item, or where this is not practicable or desirable, by allowing the accused to inspect the item.

12.22. Where the item to be disclosed is an item that has been copied by the disclosure officer to the prosecutor, it will usually be appropriate for the prosecutor to copy the item on to the defence. However, there may be circumstances where this is not appropriate. For example where:

  • the quality of the copy supplied to the prosecutor is inadequate, or
  • it is in a form which requires specialist copying equipment (for example, audio or video tapes, computer disks), or
  • the prosecutor considers that the material is not suitable for copying for other reasons (for example, sexual content).
  • where the material has yet to be edited by the police.

12.23. In these circumstances, the prosecutor should discuss with the disclosure officer how disclosure to the defence can best be achieved. This may be by arranging for the disclosure officer to edit the material, to copy the original item and send it to the defence direct, or by arranging for the defence to inspect the original item. The decision should be endorsed by the prosecutor on the MG6C and on the disclosure record sheet.

12.24. Where a copy of any disclosable item is given to the accused, the disclosure officer should inform the prosecutor, and supply a copy to the prosecutor, if one has not already been provided. It is important that a careful record is kept by the disclosure officer (and by the prosecutor on the disclosure record sheet) of what items are inspected by or copied to the accused.

12.25. For information that is not recorded in writing, the disclosure officer may decide in what form the material should be disclosed. If a transcript is provided, the disclosure officer must ensure that the transcript is certified as a true record, for example by way of a short statement by the transcriber. It is not necessary for the disclosure officer personally to certify the accuracy of the transcript.

12.26. If the material that satisfies the disclosure test is sensitive, and the prosecutor considers that an application to withhold the material should be made, the application to the court should not delay disclosing non-sensitive material.

Schedule endorsements

12.27. When considering the initial duty to disclose, the prosecutor should record decisions on form MG6C, giving brief reasons for the decisions in the comment column where:

  • the disclosability or otherwise of the material may not be apparent from the description, or
  • the prosecutor has decided to disclose material not identified by the disclosure officer on form MG6E as satisfying the disclosure test, or
  • reasons might otherwise be helpful.

12.28. The MG6C should be signed and dated by the prosecutor upon completion and the disclosure record sheet noted accordingly.

12.29. Where an item is to be disclosed, the prosecutor should in the appropriate column of the MG6C enter

  • a 'D', and indicate in the comment section whether a copy is attached
  • an 'I' where the item is to be disclosed and the prosecutor considers that inspection is more appropriate.

and indicate in the reasons column why disclosure or inpection is necessary.

12.30. Items that are clearly not disclosable at this stage should be marked 'CND'.

12.31 However, where the schedule description of an item is inadequate and there is insufficient time for the schedule to be amended prior to the trial, the item should be viewed and then marked ND and the prosecutor must note in the reasons column that the disclosure test has been fully applied and that the item neither undermines the prosecution case nor assists the case for the defence.

12.32 An item which is available to the defence under the provisions of the Police and Criminal Evidence Act 1984 but which does not satisfy the disclosure test must not be marked as disclosable D or I it should be marked as CND or ND and whilst a note may be made that it is available under PACE, there should not be confusion between automatic entitlement and disclosure under CPIA.

12.33 In large cases with substantial amounts of unused material, items may be block marked where appropriate.

12.34 Occasionally, items of unused material may be incorporated into the prosecution case. This should be identified on the schedule by endorsing the word evidence alongside the item.

12.35 Copies of the following documents should be prepared after the initial duty to disclose arises:

  • the endorsed MG6C
  • copies of any documents which satisfy the disclosure test

12.36 These should be sent to the defence with the letter at Annex C1 or C2, as appropriate, signed by the prosecutor, as soon as possible after a not guilty plea in the magistrates' court or immediately after committal/transfer or service of the prosecution case in cases sent to the Crown court for trial.

12.37 In addition, in cases before a Crown Court, rule 22.2(2) of the Criminal Procedure Rules requires that at the same time as serving initial disclosure upon the defence the prosecutor must notify the court officer that this has been done.

12.38 Under no circumstances should the MG6D, MG6E or the disclosure record sheet be copied to the defence.

12.39 At the same time, a second copy of the endorsed MG6C should be sent to the disclosure officer with the memo at Annex C6, together with a copy of the letter sent to the defence

12.40 The MG6D should be used throughout the life of the case. The prosecutor should record the decision and any observations relating to the material on it. In particular the prosecutors endorsement should contain the following:

  • whether the scheduled item has been viewed
  • whether the item satisfies the disclosure test (with reasons)
  • whether PII attaches to the scheduled item (with reasons)
  • whether an application to the court is required

12.41 The prosecutor should attach a continuation sheet where there is insufficient space on the MG6D for a full endorsement. Any subsequent endorsements on the schedules should be separately signed and dated.

12.42 Where the police have supplied an MG6D document stating that there is no sensitive unused material in the case, the prosecutor must record that this fact has been noted and considered (and challenged if incorrect) and the MG6D should still be signed and dated by the prosecutor.

12.43 Where the prosecutor has directed that the material should be inspected the prosecutor should be informed of any arrangements made with the defence and should also be informed of defence requests for copies of items. The disclosure officer must comply with defence requests for copies unless it is neither practicable (for example because the material consists of an object which cannot be copied or because the volume of the material is so great) nor desirable (for example because the material is a statement by a child witness in relation to a sexual offence).

12.44 Where the item to be disclosed has not been copied and sent to the CPS, the usual method of disclosure will be by allowing the defence to inspect it. The disclosure officer will make the arrangements for the defence inspection of the item, and should notify the prosecutor whether and when the inspection takes place. If the disclosure officer makes a copy of the item for the accused, he or she should also send a copy to the prosecutor.

12.45 Details of any unused material created by extracting statements or documents from the committal or trial bundle or by not using material which has been supplied by the police as part of the prosecution case should be notified to the disclosure officer. The disclosure officer is responsible for maintaining the accuracy of the schedules, and should supply an amended schedule listing the additional material as soon as reasonably practicable unless the prosecutor discloses the statement to the defence. The prosecutor should note the disclosure record sheet accordingly.

12.46 Where additional unused material created by the prosecutor requires disclosure because it satisfies the disclosure test, or in any other circumstances where the prosecutor has unused material that is disclosable but the schedule requires amendment, the prosecutor should disclose this material without waiting for the schedule to be amended. The disclosure officer must be informed in writing of this decision and the disclosure record sheet updated.

Top of page