Disclosure stages

Disclosure of unused material for investigations commenced before 4 April 2005

Where a criminal investigation began before 4 April 2005, there are three stages to the process of disclosure under the CPIA regime. These are:
- Primary prosecution disclosure. This requires the prosecution to disclose any unused material which might undermine the prosecution case.
- Defence disclosure. This is made by a "defence statement", which is mandatory in Crown Court cases and voluntary in magistrates’ court cases.
- Secondary prosecution disclosure. This requires the prosecution to disclose material which might reasonably be expected to assist the accused’s defence as described in the defence statement.

The CPIA requires the prosecution to disclose material which in the view of the prosecutor might undermine the prosecution case¹. The Attorney General’s Guidelines on disclosure ("the Guidelines") develop this further, stating that:

"[This] will include anything that tends to show a fact inconsistent with the elements of the case that must be proved by the prosecution."²

Some examples are:
- A witness statement which contradicts or casts doubt on other evidence on which HSE intends to rely;
- A notebook entry that is inconsistent with the investigator’s final conclusions;
- A series of measurements of airborne solvent levels, one or more of which are significantly lower than the majority;
- A draft expert statement that indicates a formed view which conflicts wholly or partly with the final opinion.
If material does not meet the test for disclosure, there is no requirement to disclose it. Indeed, it is the prosecution’s statutory responsibility to carry out primary (and secondary) disclosure in accordance with the CPIA regime. It is not acceptable to abdicate this responsibility by allowing the defence to inspect (or providing the defence with copies of) everything on the schedules of non-sensitive material, irrespective of whether the material satisfies the relevant test for disclosure. ³
Primary disclosure should be carried out as soon as possible after a not guilty plea in the magistrates’ court, or immediately after committal or transfer of cases to the Crown Court.
However, the Guidelines⁴ require that prosecutors must always be alive to the need, in the interests of justice and fairness in the particular circumstances of any case, to make disclosure before the duty arises under the CPIA⁵.

In cases to be heard by magistrates, defence disclosure is a voluntary process. However, in all cases before the Crown Court, a defendant is required under the CPIA to disclose details of his/her defence in the form of a defence case statement, which should be "full and careful" ⁶. Guidance to judges states that they should deal with delays and failures by the defence firmly and fairly ⁷. Any such statement should be served on the prosecution and the Court within 14 days of the prosecution purporting to serve primary disclosure. This time period can be extended with the Court’s agreement but any application to extend the period must be made to the Court within the 14 days.
The defence statement should:
- set out the terms of the defence;
- indicate the aspects of the prosecution case with which the defendant takes issue; and
- outline the reasons for taking issue with those aspects of the prosecution case.
Whenever a defence solicitor provides a defence statement on behalf of an accused, it will be deemed to be given with the authority of the solicitor’s client. Defence solicitors should ensure that statements are agreed with the defendant before being served. Best practice is that the accused should show agreement with the contents of the statement by signing it.
If the accused is a body corporate, anyone signing the statement should have written authorisation from the company to sign on its behalf.

Following receipt of the defence statement, the disclosure officer should consider whether any unused material not yet disclosed might reasonably be expected to assist the defence. If so, "secondary disclosure" of that material should be made.
If the defence statement is inadequate, a disclosure officer and/or prosecutor will not be able to make a properly informed decision about whether any unused material that has not been disclosed might assist the defence case, or whether the investigator should undertake any further enquiries. In these circumstances, the disclosure officer can, via the prosecutor:
- request more information; and
- refuse secondary disclosure; and
- inform the defence that the inadequacy of the defence disclosure will be made known to the court.
The defence may apply to the court for additional disclosure if they reasonably believe that the prosecution holds undisclosed material which might reasonably be expected to assist the defence.

The disclosure process is not complete once secondary disclosure has been made. The disclosure officer and prosecutor must undertake a process of continual review, applying the disclosure test to ensure that additional disclosure is not required.
The Guidelines require that, in deciding whether non-sensitive material should be disclosed at any stage of the investigation or prosecution, prosecutors should resolve any doubt they may have in favour of disclosure. If the material is sensitive, a court should decide whether it should be disclosed.
If you are unsure whether or not material should be disclosed, you should obtain advice through your line management chain. If there is continuing doubt, you should contact your legal liaison point, setting out why you believe the material should, or should not, be disclosed.

Section 3 CPIA.
Para 10 of the Guidelines .
Disclosure: A protocol for the control and management of unused material in the Crown Court (Court of Appeal, 20 February 2006).
Paras 55 and 56.
R v DPP, ex parte Lee [1999] 2 All ER 737.
Disclosure: A protocol for the control and management of unused material in the Crown Court, para 40.
Disclosure: A protocol for the control and management of unused material in the Crown Court, para 29: "Delays and failures by the defence are as damaging to the timely, fair and efficient hearing of the case as delays and failures by the prosecution." The ultimate sanction for a late, incomplete or inadequate defence statement is the drawing of an inference at trial in deciding whether the accused is guilty (section 11 CPIA).