Advanced Search

Chapter 16: Defence Applications for Further Disclosure

Defence applications for further disclosure

16.1. If at any time after the accused has provided a defence statement (and the prosecutor has complied, purported to comply or failed to comply with the obligations relating to further disclosure), and the accused has reasonable cause to believe that there is prosecution material that satisfies the disclosure test, the accused may apply under section 8 of the CPIA 1996 to the court for an order requiring the prosecutor to disclose it.

16.2. Upon receipt of the notice of application, the prosecutor should consider afresh the items requested by the defence, in consultation with the disclosure officer. If necessary, the prosecutor should ask for copies of the items or inspect the material, as appropriate.

16.3. If, after considering the requested material, the prosecutor concludes that all or part of it should be disclosed, the decision should be communicated without delay to the defence using letter at Annex C4. The court should be notified of the further disclosure, and a copy of letter C4 sent to the court and police.

16.4. Where the prosecutor decides that the material requested remains not disclosable and the accused does not accept that decision, (provided the accused has given a defence statement under section 5, or 6 of the CPIA 1996), the accused may apply to the appropriate court under section 8(2) of the CPIA 1996 for an order requiring the prosecutor to disclose it. The prosecutor should ensure that any such application complies with the Criminal Procedure Rules that require the accused to serve notice on the court and the prosecutor specifying:

  • the material to which the application relates
  • that the material has not been disclosed to the accused
  • the reason why it might be expected to satify the disclosure test and
  • the date of service of the notice on the prosecutor.

16.5. The prosecutor has 14 days to give notice to the court that either:

  • he wishes to make representations (specified in the notice) to the court, or
  • he is willing to disclose the material.

16.6. If the prosecutor considers that the defence statement is inadequate and a proper view as to what satisfies the disclosure test cannot be formed, this should be brought to the attention of the court in the notice.

16.7. The prosecutor should be alert to cases in which some or all of the material to which the accused seeks access may attract PII. If the material has already been the subject of a PII ruling the prosecutor should where possible remind the accused to use the proper procedures under section 14 or 15 of the CPIA 1996, and Part 22.3 of the Rules, to apply for a review of PII without jeopardising the confidentiality of the material, it is preferable for the procedure specifically intended for reviews of non-disclosure rulings to be used.

16.8. There may be informal approaches by the defence at any stage for access to material which is claimed satisfies the disclosure test. The prosecutor should consider each approach on its merits, and wherever possible these issues should be explored and resolved without the need for a court hearing. However, any disclosure made should be in accordance with the terms of the Act and the instructions in this manual. The disclosure record sheet should be updated accordingly.

16.8A. The court may determine a defence application at a hearing (in public or in private) or without a hearing. However, the court cannot determine the issue without either giving the prosecutor 14 days to make representations, or having a prosecutor present.

16.8B. Prosecutors should be aware that the rule could be read so as to allow the defence to make an application and for the court to seek to determine it immediately, but in the presence of a prosecutor. In the event that material has to be re-reviewed, in the light of a formal application, the prosecutor should not allow the court to expeidte timescales without good reason; and should be firm in obtaining the necessary time to consider the matter properly.

Responding to defence requests for disclosure of sensitive material

16.9. The defence may request information about the nature and extent of sensitive material that exists in the case. At whatever stage such a request is made, the defence are not entitled to information about the existence or nature of undisclosed sensitive material except where the law requires it.

16.10. If requests are made, the standard response is to adopt a neither confirm nor deny (NCND) approach. Generally, this will mean the prosecutor can say that:

  • material to which the accused is entitled will be disclosed under the CPIA 1996 and Criminal Procedure Rules at the appropriate time and
  • the prosecutor is satisfied that the duties under the CPIA 1996 and Rules have been complied with, and
  • disclosure will be the subject of continuing review.

 16.11 For CHIS disclosure issues, see the relevant section of the guidance.

Top of page