1 "Disclosure is one of the most important - as well as one of the most abused - of the procedures relating to criminal trials. There needs to be a sea-change in the approach of both judges and the parties to all aspects of the handling of the material which the prosecution do not intend to use in support of their case. For too long, a wide range of serious misunderstandings has existed . . ."
Disclosure: A protocol for the control and management of unused material in the Crown Court (20 February 2006 - Mr Justice Fulford and Mr Justice Oppenshaw et al).
2 The legal sources relating to disclosure can be neatly found in a variety of scattered sources:
i) the Criminal Procedure and Investigations Act 1996 as amended (the Act);
ii) the Code of Practice, issued under section 23 of the Act (the Code);
iii) Parts 25-28 of the Criminal Procedure Rules 2005 (the Rules);
iv) the Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 1997 issued under section 12 of the Act (the Regulations);
v) In addition, the Attorney General has issued Guidelines on Disclosure, which build on the existing law.
3 The correct test for disclosure will depend upon the date the relevant criminal investigation commenced:
i) In relation to offences in respect of which the criminal investigation began prior to 1 April 1997, the common law will apply, and the test for disclosure is that set out in R v Keane [1994] 1 W.L.R. 746; (1994) 99 Cr. App. R. 1.
ii) If the criminal investigation commenced on or after 1 April 1997, but before 4 April 2005, then the CPIA in its original form will apply, with separate tests for disclosure of unused prosecution material at the primary and secondary disclosure stages (the latter following service of a defence statement by the accused). The disclosure provisions of the Act are supported by the 1997 edition of the Code of Practice issued under section 23(1) of the CPIA (Statutory Instrument 1997 No. 1033).
iii) Where the criminal investigation has commenced on or after 4 April 2005, the law is set out in the CPIA as amended by Part V of the Criminal Justice Act 2003. There is then a single test for disclosure of unused prosecution material and the April 2005 edition of the Code of Practice under section 23(1) of the CPIA will apply (see SI 2005 No. 985).
iv) The CPIA also identifies the stage(s) at which the prosecution is required to disclose material, and the formalities relating to defence statements. The default time limit for prosecution disclosure is set out in section 13 of the Act. The time limits applicable to defence disclosure are set out in the Criminal Procedure and Investigations Act 1996 (Defence Disclosure Regulations) 1997 (S.I. 1997 No. 684).
v) Regard must be had to the Attorney General's Guidelines on Disclosure (April 2005). Although these do not have the force of law (R v Winston Brown [1995] 1 Cr. App. R. 191; [1994] 1 WLR 1599) they should be given due weight.
vi) Part 25 of the Criminal Procedure Rules 2005 (see SI 2005 No. 384) sets out the procedures to be followed for applications to the court concerning both sensitive and non-sensitive unused material. Part 3 of the Rules is also relevant in respect of the court's general case management powers, and parties should also have regard to the Consolidated Criminal Practice Direction.
vii) Parts 22 and 23 of the Criminal Procedure Rules are set aside to make provision for other rules concerning disclosure by the prosecution and the defence, although at the date of this Protocol there are no rules under those Parts.
The Disclosure Protocol
4 The Disclosure Protocol is concerned with the management of issues relating to unused material in the Crown Court. Its main feature is a requirement for strict compliance with the disclosure provisions of the Criminal Procedure and Investigations Act 1996 ("the Act"), and the statutory Code of Practice laid under section 23 of the Act, where they apply to the proceedings.
The "overarching principle"
5 The overarching principle is therefore that unused prosecution material will fall to be disclosed if, and only if, it satisfies the test for disclosure applicable to the proceedings in question, subject to any overriding public interest considerations.
The test for disclosure
6 The House of Lords indicated in R v H and C [2004] 2 AC 134 paragraph 35 that:
"If material does not weaken the prosecution case or strengthen that of the defendant, there is no requirement to disclose it."
7 The protocol, consistent with the need for strict compliance with the Act, requires an end to free-standing orders for disclosure by judges otherwise than those properly made in the context of hearings conducted under section 8 of the Act and r25.6 of the Criminal Procedure Rules, following service of a defence
Conclusions
8 Disclosure is an area of constantly shifting ground with the establishment attempting to limit not only its application, but also the time dedicated in court to determining issues falling under its ambit. A good understanding of the legal sources of disclosure responsibilities proves invaluable in this ever changing environment.
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Ian Mann is a Public and Employment Law Barrister at 13 King’s Bench Walk, Temple
http://www.employment-barrister-uk.com and
http://www.13kbw.co.uk
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