CRIM LIT Tutorial 4 PDF

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CRIMINAL LITIGATION TUTORIAL WORK CLASS 4 NOTES FOR EXAM...

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Preparation for Class Exercise for Topic 1 SA4/5 You met Jack in Week 1 and will recall that Jack has been charged with assault occasioning actual bodily harm (ABH) on his girlfriend (this is an eitherway offence, which means that it can be tried in the magistrates’ court or in the Crown Court). The police refuse him bail at the police station, so he appears in custody at the local magistrates’ court the next day for his first appearance. You speak to the prosecutor at court who is new and

unsure of what papers to give you. a. To what extent is Jack entitled to know the nature of the prosecution case at this first hearing? Part 8, CPR 8.3 Disclosure of initial detailssummary of the circumstances of the offence and the defendant’s criminal records. - Upon request from defence, pros required to serve initial details on defence as soon as

practicable and no later than beginning of day of first hearing. - Applies to both summary and either-way offences. Consequences of Prosecution Non-disclosure D9.28 A failure on the part of the prosecution to make proper disclosure may, in serious cases, provide a basis on which a defendant may apply to stay proceedings as an abuse of process, to exclude certain evidence, or appeal.

b. What further duties of service/disclosure are there on Preparation for Class

Topic 1 SA4/5 DISCLOSURE

Topic Syllabus Area 4: Procedure in the magistrates’ courts

Curriculum/BCP references

1. The rules relating to the provision of initial details of the prosecution case

Examinable material on rules relating to the provision of initial details of the prosecution case will consist of knowledge of Crim PR Part 8, including the time when initial details of the prosecution case must usually be provided together with the options open to the parties and the court in the event of non-compliance by the prosecution. The relevant material is addressed in paragraph: 

D5.19 of Blackstone's Criminal Practice 2021.

The jurisdiction of a magistrates' court to determine mode of trial for an either-way offence, to try such an offence summarily or to send it to the Crown Court to be tried on indictment is dependent, inter alia, on the accused appearing or being brought before the court (MCA 1980, ss. 2(3) to (4) and 18). However, there is no express requirement in those provisions that the accused's presence shall have been obtained by lawful means. Therefore, if the accused in fact appears before the court (e.g., in answer to a summons or requisition) or is brought before the court following arrest, the magistrates will have jurisdiction to deal with the case even if the process by which the attendance of the accused was secured was faulty, provided, of course, that any other preconditions of jurisdiction are satisfied (Hughes (1879) 4 QBD 614, approved by the House of Lords in Manchester Stipendiary Magistrate, ex parte Hill [1983] 1 AC 328 at pp. 344–5).

Note from module leader: Here is a link to the Criminal Procedure Rules: https://www.justice.gov.uk/courts/proced ure-rules/criminal/rulesmenu-2015 Please note that you do not need to memorise individual rule numbers. We will look at the other bullets in Syllabus Area 4 later in the course, where they fit more logically. Syllabus Area 5: Disclosure of unused material and defence statements 1. Investigator’s duty to retain unused material (detailed knowledge not required), prosecutor’s duty of disclosure and the test for determining whether unused material should be disclosed by the prosecution

Examinable material on the investigator’s duty to retain unused material, the prosecutor’s duty of disclosure and the test for determining whether unused material should be disclosed by the prosecution will consist of the statutory regime and the common law, commencement dates, the investigation stage, responsibilities of investigators and disclosure officers, the duty to record and retain material, the duty to reveal material to the prosecutor, the responsibilities of the prosecutor to review material, disclosure postcharge but prior to statutory obligation, the statutory test for initial disclosure, service of schedules and prosecution obligations in summary trials. The relevant material is addressed in paragraphs:  D9.2 (Note from module leader: you may find it useful to read D9.1 as well to provide you with an introduction, but this is the only time we will ask you to read a paragraph outside those listed on the syllabus) The statutory regime governing the disclosure of unused material by the prosecution and the disclosure of the defence case is set out in the CPIA 1996, Part I (ss. 1 to 21), and

supplemented by the Code of Practice issued under the CPIA 1996, s. 23 ('CPIA Code'), CrimPR Part 15 (see Supplement, R15.1 et seq.), and a variety of other sources (see D9.5). Prior to the CPIA 1996, common-law rules developed concerning the disclosure of prosecution material. However, following a number of high-profile miscarriages of justice in which failures in disclosure played a part (notably Ward [1993] 1 WLR 619; see further D9.50), a statutory scheme was developed. The statute followed, broadly, the recommendations of the Royal Commission on Criminal Justice (the Runciman Commission, July 1993). The circumstances in which the CPIA 1996 now applies are set out in s. 1 (see D9.3). In summary, the regime is compulsory in relation to cases sent to the Crown Court to be tried on indictment. The statutory duties begin with the arrival of the case (by whatever route) in the Crown Court (s. 1(2)) and end with the conclusion of the trial, whether by conviction, acquittal, or the discontinuation of proceedings (s. 7A(1)(b)). The regime may also apply to any summary trial, including those in the youth court (see D9.37). The CPIA 1996 expressly provides that it displaces the common law in cases to which it applies save in respect of common-law rules governing whether disclosure is in the public interest (see s. 21 and D9.49). It should be noted, however, that the position at common law remains relevant and that circumstances may arise in which a prosecutor may be required to disclose material to the defence outside the scheme of the CPIA 1996 (e.g., in connection with a bail application at an early stage, or following the conclusion of proceedings). The right for a defendant to have adequate time and facilities to prepare the defence is also expressly protected by the ECHR, Article 6(3)(b). The essential consideration for a prosecutor is whether disclosure of any material to the defence is required in accordance with the interests of justice and fairness. As Lord Bingham observed in H [2004] UKHL 3, [2004] 2 AC 134 at [14], prosecution disclosure is a requirement of basic fairness (the CPIA 1996 notwithstanding): Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence. Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure. The golden rule is that full disclosure of such material should be made.

It is important to note that while the principle of fairness informs the duty of disclosure at all

stages of proceedings, it does not follow that fairness requires the same level of disclosure at each stage. In respect of the position at common law prior to the engagement of the CPIA 1996, see D9.14 and DPP, ex parte Lee [1999] 2 All ER 737. In relation to the position following a conviction, see D9.24, Nunn [2014] UKSC 37, [2015] AC 225 and Gohil[2018] EWCA Crim 140, [2018] WLR 3697.

The legislative regime under the CPIA 1996 envisages a staged approach to the disclosure of unused prosecution material and the defence case: 1. (a) A statutory duty (reinforced by the CPIA Code) obliges police officers investigating an offence to record and retain all information and material, gathered or generated, that may be relevant to the investigation (see D9.10). 2.

(b) Material which is relevant to the investigation but is not expected to form part of the prosecution case should be provided by the police to the prosecutor for review (see D9.12 to D9.13). 3. (c) The prosecution must apply the statutory test in the CPIA 1996, s. 3, to that material and must disclose any material meeting that test, usually together with a schedule of all the other material recorded and retained (see D9.13 to D9.28: separate obligations apply as regards material which is intended to be used). 4. (d) The defence, in turn, have a duty to inform the prosecution of the case which they intend to present at trial (see D9.29 to D9.47).

5. (e) The prosecution are, throughout proceedings, under a duty to disclose material which meets the statutory test for disclosure, which may prompt further disclosure (e.g., following the defence statement (see D9.24)). 6. (f) Following service of the defence statement and any further disclosure (or a failure to make further disclosure), an accused may make further applications for disclosure (see D9.26). The CPIA 1996 provides for applications to be made to the court in circumstances where there is a dispute about whether the prosecution should disclose certain unused material (see D9.26); and there are sanctions laid down for a defendant who fails to provide details of the case on a timely basis and/or provides false or inconsistent information (see D9.42).



the first sub-paragraph of D9.4

Commencement Dates The disclosure provisions of Part I of the CPIA 1996 apply to any alleged offence for which a criminal investigation began on or after 1 April 1997.

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D9.6 ( The Investigation stage)

The responsibilities of investigators in relation to unused material are set out in a variety of sources, but chiefly the CPIA Code. This was revised and reissued in March 2015 to take account of changes recommended by the Magistrates' Court Disclosure Review, designed to enable police disclosure officers to adopt a streamlined procedure in magistrates' court cases.

The CPIA Code applies to all criminal investigations carried out by police officers

(see the CPIA 1996, s. 22) and, under s. 26, persons other than police officers charged with the duty of conducting criminal investigations (see D9.7). The CPIA Code, para. 2.1, takes its definition of a criminal investigation from the CPIA 1996, s. 22, and provides a number of examples: … a criminal investigation is an investigation conducted by police officers with a view to it being ascertained whether a person should be charged with an offence, or whether a person charged with an offence is guilty of it. This will include: — investigations into crimes that have been committed;

— investigations whose purpose is to ascertain whether a crime has been committed, with a view to the possible institution of criminal proceedings; and

— investigations which begin in the belief that a crime may be committed, for example when the police keep premises or individuals under observation for a period of time, with a view to the possible institution of criminal proceedings.



D9.8 ( Responsibilities of Investigators and disclosure officers)

The CPIA Code sets out the varying functions of individuals within a criminal investigation and their particular responsibilities as regards the disclosure process (albeit that different functions may be performed by the same individual). Among the definitions in the CPIA Code, certain key roles are notable, namely: an 'investigator' — any police officer involved in the conduct of a criminal investigation; a 'disclosure officer' — the police officer responsible for examining material retained by the police during the investigation and for revealing material to the prosecutor; and the 'officer in charge of an investigation' — the police officer responsible for directing a criminal investigation, including ensuring that proper procedures are in place for recording information, retaining records of information and other material in the investigation (para. 2.1). The CPIA Code emphasises the need to retain clear records of the identities of the persons performing these roles; that they are carried out by suitably experienced individuals, independent of the investigation; and that the investigative process is tailored to the circumstances of each case (paras. 3.3 to 3.7). Notably,

the CPIA Code puts a police officer (the disclosure officer) at the centre of the disclosure process, as opposed to a qualified lawyer; a scheme that has not been without controversy. For a critical review of this regime by HM Inspectorate of Constabulary and HM Inspectorate of the CPS see 'Making it Fair: The Disclosure of Unused Material in Volume Crown Court Cases' (July 2017, tinyurl. com/y7ckf7br).

The CPIA Code provides for delegation under arrangements for joint investigations (para. 3.4) (though note Khan [2011] EWCA Crim 2240).



the first five sub-paragraphs of D9.10 (up to ‘para. 5.6’) ( Duty to record and maintain material)

Under the CPIA Code, investigators must record, in a durable or retrievable form, all material which may be relevant to the investigation and which is not already recorded. This obligation to record includes negative information, e.g., the fact that a number of people present at a particular place and time saw nothing unusual (para. 4.1).

The investigator is also responsible for retaining all material obtained in a criminal investigation that may be relevant to the investigation (para. 5.1).

What amounts to material that is 'relevant to an investigation' is a widely drawn definition. The CPIA Code provides (para. 2.1) that material will fall within this category if it appears to an investigator or disclosure officer that it has merely some bearing on any offence under investigation or any person being investigated, or on the surrounding circumstances of the case. Th us, material is to be considered potentially relevant unless it is actually incapable of having any impact on the case.

'Material' includes material gathered in the course of the investigation (e.g., documents seized in the course of searching premises) and generated by the investigation (e.g., interview records) (para. 2.1).

The CPIA Code expressly identifies that the duty to retain material will include, for example, the following categories of material: crime reports, including crime report forms, relevant parts of incident report books and police officers' notebooks; final versions of witness statements; draft versions of witness statements where their content differs from the final version; interview records (written or taped); expert reports and schedules; any material casting doubt upon the reliability of a confession; and any material casting doubt on the reliability of a witness (para. 5.4). The CPIA Code also makes clear that the duty to retain material does not extend to items purely ancillary to the above categories which possess no independent significance, such as duplicates of documents (para. 5.6)



D9.12–9.16 ( Duty to Reveal Material to Prosecutor)

9.12: The CPIA Code, para. 6, establishes a procedure whereby retained material which may be relevant to an investigation, but which the disclosure officer believes will not form part of the prosecution case, must be listed on a schedule. The obligation to prepare a schedule arises in all cases likely to be heard in the Crown Court and all cases in the magistrates' court where the accused is likely to plead not guilty.

* IMPORTANT* In Crown Court cases, the disclosure officer must prepare a schedule on a form, known as the MG6C, which lists such retained material. In magistrates' court cases where the accused is likely to plead not guilty, a streamlined disclosure certificate (a template for which is in the annex to the CPIA Code), is prepared (para. 6.5). It is these schedules which the prosecutor will review when making decisions as to whether material is to be disclosed to the defence, applying the relevant statutory test.

Any 'sensitive material' should be listed in a separate schedule or, exceptionally, disclosed to the prosecutor separately. Sensitive material is defined as material which the investigator believes would give rise to a real risk of serious prejudice to an important public interest if it were to be disclosed (para. 2.1) (see further D9.49). Paragraph 6.15 provides examples of such material, ranging from material relating to national security to material given in confidence, and includes material relating to informants, undercover police officers, premises used for police surveillance, techniques used in the detection

of crime, and material relating to child witnesses (e.g., material generated by a local authority social services department). The A-G's Guidelines (see appendix 4) emphasise that descriptions by disclosure officers in non-sensitive schedules should be clear and accurate and must contain sufficient detail to enable the prosecutor to make an informed decision on disclosure (para. 23). Sensitive schedules must contain sufficient information to enable the prosecutor to decide whether the material should be viewed, bearing in mind its confidential nature (para. 24). An investigator should draw the prosecutor's attention to any material which might satisfy the test for prosecution disclosure (see D9.15) and must give the prosecutor a copy of any material falling within certain categories in the CPIA Code, para. 7.3, including information provided by an accused which indicates an explanation for the offence and any material relating to the reliability of a confession or a prosecution witness. The Court of Appeal has observed that 'corporate knowledge' operates in respect of information which falls to be disclosed; the prosecution duty to disclose is not rendered redundant if officers withhold information from counsel, or if officers withhold information from one another (Grant [2015] EWCA Crim 1815). At the conclusion of the process, a disclosure officer must certify to the prosecutor that to the best of the officer's knowledge and belief the duties imposed under the code have been complied with (CPIA Code, para. 9.1).

9.13 (Responsibilities of Prosecutor to Review Material) It is the prosecutor's task to review the schedule(s) provided by the disclosure officer and to assess the need to make disclosure of the underlying material to the defence. That task is undertaken applying the statutory test for disclosure contained in the CPIA 1996, s. 3(see D9.15). However, the duty on a prosecutor to review material and, where necessary, direct the disclosure of that material is a continuing one and the disclosure should be kept under review throughout proceedings (see D9.24). The A-G's Guidelines require prosecutors to do all that they can to facilitate proper disclosure. This includes probing actions taken by disclosure officers, reviewing schedules and, if necessary, taking action to correct or improve them (paras. 28 to 30). Prosecutors must consider any defence statement thoroughly, even if it points to other lines of inquiry. A prosecutor should advise the investigator if any such lines of inquiry should be pursued and challenge the lack of, or inadequate, defence statements in writing (para s. 31 to 33). (As to

defence statements generally see D9.29.) Prosecution advocates must ensure that all material which ought to be disclosed is disclosed to the defence, satisfy themselves that they are in possession of all relevant material and that they have been fully instructed as regards disclosure matters, and keep all disclosure decisions under review (para s. 35 to 37).

In Olu [2010] EWCA Crim 2975, [2011] 1 Cr App R 33 (404), the Court of Appeal (while upholding the conviction) observed that it ...