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Chapter 2: General duties of disclosure outside the CPIA 1996

General Principles

2.1. The duties of revelation and disclosure do not only arise under the CPIA 1996. Further legal obligations arise which assist:

  • the prosecutor in determining whether a person should be charged with an offence (revelation by the police)
  • the accused by providing certain material during the early stages of a prosecution (common law disclosure to the accused).

Revelation and charging

2.2. The investigator must inform the prosecutor as early as possible whether any material weakens the case against the accused.

2.3. In the guidance to police officers and Crown prosecutors issued by the Director of Public Prosecutions under section 37A of the Police and Criminal Evidence Act 1984, an evidential report to a prosecutor for a charging decision must contain the key evidence upon which the prosecution will rely together with any unused material which satisfies the disclosure test. This duty arises outside the CPIA 1996.

2.4. In some cases referred to prosecutors for a charging decision, the officer may submit an expedited report. This report must be accompanied by any other information that may have a bearing on the evidential test. This is bound to include a consideration of whether there is unused material which affects the strength of the prosecution case.

Disclosure and early stages of a prosecution

2.5. Section 3 of the CPIA 1996 envisages the possibility that some disclosure may already have been made before the statutory duty to make initial disclosure arises. This early disclosure is known as common law disclosure, on which detailed guidance is given in R v DPP ex parte Lee [1999] 2 All ER 737.

2.6. In the majority of cases, the police and the prosecutor will already have worked together in determining that the accused should be charged. After charge the officer in the case is required to certify on the initial file (on form MG1) that to the best of the officer's knowledge and belief no information has been withheld which would assist the accused in the preparation of the defence case, including the making of a bail application.

2.7. From the start of any prosecution, the prosecutor should consider what (if any) immediate disclosure should be made in the interests of justice and fairness in the particular circumstances of the case. Examples of what should be disclosed are:

  • any previous convictions of the victim or a key witness if that information could reasonably be expected to assist the accused when applying for bail
  • material which might enable an accused to make a pre-committal application to stay the proceedings as an abuse of process
  • material which might enable an accused to submit that a committal should only take place on a lesser charge or that committal should not take place at all, and/or
  • material which would enable an accused to prepare for trial which may be significantly less effective if disclosure is delayed (e.g. names of eye witnesses whom the prosecution do not intend to use).

2.8. This list is not exhaustive and the prosecutor is not required to give full disclosure at this early stage. Disclosure prior to the statutory duty arising will not exceed the disclosure which would be required under the CPIA 1996.

2.9. The investigator or disclosure officer must reveal to the prosecutor any material that is relevant to sentence (for example, information which might mitigate the seriousness of the offence or assist the accused in laying some blame upon a co-accused or another).

Special circumstances

2.10. The duty of disclosure continues as long as proceedings remain, whether at first instance or on appeal (R v Makin [2004] EWCA CRIM 1607). While the Court of Appeal in Makin did not purport to lay down any general test to be applied for disclosure on appeal, prosecutors should apply disclosure test in the interests of justice. It is suggested that those interests do not require disclosure beyond that which is obtainable under the CPIA 1996. The defence case should be assessed as that advanced at trial or, if matters are raised on appeal which were not raised during the trial process, as set out in the appellant's draft or perfected grounds of appeal.

2.11. Where disclosure takes place informally, in correspondence or between advocates in court, prosecutors and caseworkers must still ensure a clear record is made on the disclosure record sheet of all material that is actually disclosed at any stage of the proceedings.

2.12. Disclosure of any material that is made outside the ambit of Act will attract confidentiality by virtue of Taylor v SFO [1998] 4 All ER 801.

2.13. The interests of justice will mean that where material comes to light after the conclusion of the proceedings that might cast doubt upon the safety of the conviction, there is a duty to consider disclosure. Any such material should be brought immediately to the attention of line management. 

2.14: The above principle was considered and the importance of finality in criminal proceedings was reaffirmed in Nunn v the Chief Constable of Suffolk Constabulary and the Crown Prosecution Service (Interested Party) [2012] EWHC 1186 Admin. The Administrative Court stated;

"In our judgement, therefore, a person convicted of a crime has no right to further disclosure to facilitate his re-investigation of the case, any more than the state is under a duty to re-investigate."

The Court also stated:

"It is necessary to show something that materially may cast doubt upon the safety of a conviction before the duty of the police and CPS as set out in the Attorney General's guidance and the CPS guidance arises. For example, if scientific advances enabled tests unavailable at the time of the trial to be carried out on items which if tested might reasonably be anticipated to provide a result which might affect the state of the conviction, then under the Attorney General's guidelines and the CPS guidance, the police and the CPS will be under an obligation to consider disclosure or to carry out a review"

2.15: For general guidance in respect of post conviction requests for prosecution case papers from third parties or from individuals who have been the subject of criminal  proceedings, please refer to our Legal Guidance chapter entitled Disclosure of Material to Third Parties under the heading Post Conviction Disclosure.

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