Disclosure Manual: Chapter 16 - Defence Applications for Further Disclosure
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 to the court for an order requiring the prosecutor to disclose it.
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. The defence may make an application to the prosecution informally first and if possible, this should be resolved applying the usual principles without the need for a court hearing.
Prosecutors should be careful to apply the disclosure test properly to all items requested. Further specific guidance about requests or applications for digital material is set out in Chapter 30.
If, after considering the requested material, the prosecutor concludes that all or part of it should be disclosed, the decision should be communicated and the usual process followed.
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), the accused may apply to the appropriate court under section 8(2) of the CPIA for an order requiring the prosecutor to disclose it.
The prosecutor should ensure that any such application complies with the Criminal Procedure Rules. The application must:
- describe the material that the defendant wants the prosecutor to disclose;
- explain why the defendant thinks there is reasonable cause to believe that—
- the prosecutor has that material, and
- it is material that the Criminal Procedure and Investigations Act 1996 requires the prosecutor to disclose; and
- ask for a hearing, if the defendant wants one, and explain why it is needed.
The defendant is expected to use the standard form available on the Criminal Procedure Rules Forms page.
The prosecutor has 10 business days to give notice to the court that he either wishes to make representations to the court (specified in the notice) or he is willing to disclose the material.
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.
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 10 business days to make representations or having a prosecutor present.
In the event that a court asks for the matter to be determined without notice particularly if material has to be re-reviewed, the prosecutor should not allow the court to expedite 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
The accused may seek access to material which may attract Public Interest Immunity (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, and Part 15.6 of the Criminal Procedure Rules, to apply for a review of PII without jeopardising the confidentiality of the material.
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.
If requests are made, the standard response is to adopt an approach of neither confirm nor deny (NCND). Generally, this will mean the prosecutor can say that:
- material to which the accused is entitled will be disclosed under the CPIA and Criminal Procedure Rules at the appropriate time;
- the prosecutor is satisfied that the duties under the CPIA and Rules have been complied with; and
- disclosure will be the subject of continuing review.