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Chapter 14: Continuing Duty to Review Disclosure

14.1. Section 7A of the CPIA 1996 imposes a continuing duty upon the prosecutor to keep under review at any time the question of whether there is any prosecution material which satisfies the disclosure test and which has not previously been disclosed. This duty arises after the prosecutor has complied with the duty to disclose or purported to comply with it and before the accused is acquitted or convicted or the prosecutor decides not to proceed with the case.

14.2. If such material is identified, then the prosecutor must disclose it to the accused as soon as is reasonably practicable, subject to public interest immunity considerations.

14.3. The prosecutor should be alert to the possibility that further unused material may come to light or be generated after the point at which initial disclosure has been made, after further investigation as a result of the prosecutor's advice, or where material such as negative fingerprint and forensic results become available.

14.4. In particular, following the giving of a defence statement, the CPIA 1996 requires that the prosecutor keeps under review whether there is any prosecution material that satisfies the disclosure test. The actions and procedures required upon receipt of a defence statement are dealt with more fully in the section headed Defence Disclosure.

Continuing duty to disclose: procedure

14.5. If any new material is obtained or generated after the schedules have been submitted by the police, the disclosure officer should submit a fresh schedule or a continuation sheet with material consecutively numbered together with an additional MG6E. If new material is not properly described, the prosecutor must request, and insist upon receiving the correctly completed schedules. The prosecutor should consider this new material and apply the disclosure test in exactly the same way as for material submitted earlier.

14.6. As part of the continuing duty of disclosure the prosecutor should endorse any new disclosure decisions and reasons on the MG6C, and the date those decisions were made. The MG6C should be signed and dated by the prosecutor upon completion and the disclosure record sheet noted accordingly. Where there is material to be disclosed, letter C1 or C4 should be used as appropriate. Items to be disclosed should be referred to by their number on the original schedule, and marked as either copy attached or for inspection as appropriate. Where no additional material requires disclosure, letter C2 or C5 as appropriate, should be used.

14.7. The letter should be signed by the prosecutor and sent to the accused as soon as reasonably practicable, and in any event before the commencement of the trial. A copy should be sent to the disclosure officer. The date of dispatch should be recorded on the disclosure record sheet.

14.8. Where new material is received that changes the nature or strength of the prosecution case or throws greater light on the case for the accused, the prosecutor should re-assess the schedules and the material considered at an earlier stage. If that re-assessment results in a decision to disclose further material described on an earlier schedule, the schedule and disclosure record sheet should be endorsed with the updated decision. The updated decision should be communicated to the defence and the disclosure officer, along with the copies of the material itself, unless inspection is considered appropriate.

14.9. There may be further material, which may help or hinder the prosecution, in the hands of third parties. The police may seek advice on the need to obtain further material, even after a prosecution has reached the stage where there is a duty to disclose unused material to the defence. Further guidance on third parties generally can be found in chapter 4 andAnnex B.

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