« Previous | Contents | Next »
Listen
Annex 4 English and Welsh disclosure system
1. The law and practice of disclosure in England and Wales has developed along quite different lines to Scotland, and has been governed by statute since the commencement of the Criminal Procedure and Investigations Act 1996. My review has greatly benefited from advice about the current system in England and Wales, the rationale for it, and the story of its development over the last 15 years. This annex summarises some key points.
Current system in England and Wales - definitions of key terms
" Revelation" refers to the passing of material from the investigator to the prosecutor, at least in the form of a description on a schedule and where necessary also by being passed to the prosecutor physically.
" Disclosure" is the passing of material to the defence.
The system is based on just two levels of how "important" the material is: "may be relevant", which is decided by the police; and "disclosable", which is decided by the prosecutor and may on occasion be reviewed by the judge.
Material which " may be relevant" includes anything which could have a bearing on the outcome of the case. This is a wide definition, used by investigators to determine which material they require to make available to the prosecutor.
" Disclosable" material is any unused material which "might reasonably be considered capable of undermining the case for the prosecutor or of assisting the case for the accused". (Note that the term normally excludes the "used" material ie the prosecution case, even though this also must be disclosed to the defence.)
" Used" material is that which forms part of the prosecution case. It must all be disclosed.
" Unused" material is everything which "may be relevant" but which is not "used".
Whether material is " sensitive" is also decided by the prosecutor. Material is sensitive if its disclosure would create a real risk of serious prejudice to an important public interest. This can arise for a number of reasons, including the security of the UK, the protection of witnesses from intimidation and harassment, and the protection of covert human intelligence sources or of secret methods of detecting and fighting crime.
Principal features of the current system in England and Wales
Statutory basis
2. The requirements for disclosure are set out in the Criminal Procedure and Investigations Act (1996), as amended. This is supported by very detailed documentation including the Lord Chief Justice's Guidelines, the Attorney General's Guidelines, and the Disclosure Manual issued by the Director of Public Prosecutions and the Association of Chief Police Officers.
Responsibilities of the investigator
3. Where a criminal investigation is conducted, all reasonable steps should be taken for the purposes of the investigation and, in particular, all reasonable lines of inquiry should be pursued.
4. The investigator should record and retain all material obtained in the course of the investigation which may be relevant to the investigation. This responsibility kicks in right from the outset, and so the police must treat material in this way long before it is known whether the crime will be solved or a suspect prosecuted in court. In practice the police tend to interpret "may be relevant" very widely and to record peripheral information as well as information which is more likely to be of significance.
5. In cases which are later passed to a prosecutor, the investigator should reveal to the prosecutor all material which may be relevant. This includes both (a) material which the investigator considers is likely to form part of the prosecution case and (b) the "unused" material. (Material from (a) which the prosecutor subsequently decides not to use has to be added to the unused material at that point.)
6. A specific individual - the disclosure officer - is given the responsibility for examining/inspecting all the unused material; creating schedules which fully describe this material, and passing these schedules to the prosecutor. The disclosure officer is commonly also the lead investigator in the case, though should be a separate individual in more complex cases where an independent check of disclosure actions is important.
7. The main schedules are the MG6C which lists all non-sensitive unused material, and the MG6D which lists all sensitive unused material. The disclosure officer is also responsible for drawing the prosecutor's attention (on schedule MG6E) to any material which they consider might undermine the prosecution case or assist the defence case, ie to anything they consider disclosable. They must also confirm in writing to the prosecutor that they have completed their duties.
Initial disclosure
8. The prosecutor is required to disclose to the accused/defence, in advance of trial:
8.1 all material which it plans to use in presenting the prosecution case; and
8.2 the schedule MG6C, which lists the non-sensitive unused material (in simple summary cases, this often has only a handful of entries, or none at all); and
8.3 (subject to the exceptions below) any unused material which "might reasonably be considered capable of undermining the case for the prosecutor against the accused or of assisting the case for the accused" (the disclosure test). (If there is no material in this category the prosecutor must give the accused a written statement to that effect. This happens quite often, especially in summary cases.)
9. To do this, the prosecutor has to review the MG6C and MG6D schedules and either confirm or alter the disclosure officer's recommendations on which items are (a) disclosable and (b) sensitive.
10. Content which is both non-disclosable and sensitive (eg addresses of witnesses) may be "redacted" from documents disclosed at this or later stages.
11. There are two exceptions to the basic requirement in 8.3. These are:
11.1 The prosecutor must not disclose material if the court, on an application by the prosecutor, has ordered that its disclosure would not be in the public interest - see Public Interest Immunity below; and
11.2 The prosecutor must not disclose material whose disclosure is prohibited by s17 of the Regulation of Investigatory Powers Act 2000 (ie information from or related to intercepted communications) - see below.
12. The three items in paragraph 8 comprise everything that requires to be disclosed to the defence. Material which neither is to be used nor satisfies the disclosure test does not require to be disclosed. There is no concept of "automatic disclosure" of particular types of material. Nor is there any requirement to disclose "all material evidence against the accused". This former requirement was overturned by the House of Lords in R v H and C who ruled that there was no need to disclose unused material which was either neutral or culpatory.
Role of the defence
13. Following initial disclosure, the defence can engage in exchanges about what material is disclosable. There are two ways in which it can do this:
13.1 Defence statements: The defence can (and in indictable cases, they must) give a defence statement to the prosecutor, setting out the nature of the defence, any particular defences on which the accused intends to rely, and any matters of fact or points of law with which the accused takes issue with the prosecution. On receipt of such a statement the prosecution must revisit all the unused material to consider whether any more of it now satisfies the disclosure test.
13.2 Section 8 applications:Provided that the defence has already lodged a defence statement, and if it has reasonable cause to believe that the prosecutor holds additional disclosable material, it may apply to the court for an order which would require the prosecutor to disclose additional material. (It is good practice and also common practice for the defence to raise such applications informally with the prosecutor first, with recourse to the court only in cases of disagreement.) Typically such applications will be for some item(s) listed in schedule MG6C, although they can also relate to information in the MG6D which the defence suspects may exist. The court will look at the material at issue and make its decision based on whether it considers the disclosure test applies. The prohibitions at para. 11 above continue to apply in any event.
14. The defence cannot initiate an argument about whether an item has correctly been classified as "sensitive". However, if it wins its case to have any item declared disclosable by the court, then this would force the issue - see under PII below. It can also apply to the court to review a PII decision which has been made in the prosecution's favour.
Public Interest Immunity ( PII)
15. If at any stage the prosecutor considers (or the court orders) that an item is disclosable, and the prosecutor also considers that it is sensitive, and if it is not possible (by means of redaction) to disclose the material in a way which does not prejudice any public interest, the prosecutor must then:
15.1 abandon the case; or
15.2 disclose the sensitive material because the overall public interest in pursuing the prosecution is greater than that in abandoning it; or
15.3 seek a court order to withhold the material, by means of a Public Interest Immunity ( PII) application.
16. During a PII hearing the trial judge will examine the material at issue in the context of the case. It is open to the court to order that the prosecution cannot proceed without full disclosure; or that the case may continue without disclosure of part or all of the material at issue. To reach the latter conclusion, the court will need to be satisfied that it will still be possible to hold a fair trial in the absence of disclosure of some of the material which satisfies the disclosure test.
17. The court may revise its decision during the subsequent course of the trial, if subsequent developments cast doubt on the conclusion that the accused can still have a fair trial. (In practice such revisions of PII decisions are very rare.)
18. The prosecutor may choose whether to apply under any of 3 types of PII hearing, depending on the level of sensitivity:
Type 1: prosecutor informs defence of the category of material at issue, and the defence is allowed to make representations at an inter partes hearing;
Type 2: prosecutor informs defence that an application is being made, but gives no details of the category of material; defence may make broad statements to the court but the hearing then proceeds in the absence of the defence and accused.
Type 3: defence is not notified; hearing takes place entirely in their absence.
19. In types 2 and 3 it is open to the judge to order that a special counsel should be appointed to represent the interests of the defence at the PII hearing - though such a counsel is not allowed to report back to the defence or the accused anything about the material at issue.
20. During the 1990s and early 2000s, the CPS made many applications under this system to withhold material which was not in fact "disclosable" as it neither assisted the defence nor undermined the Crown case. Not surprisingly, the CPS won most of these applications. Following the House of Lords ruling that the prosecutor is only required to disclose material which meets the disclosure test, there has been a sharp decline in the numbers of cases which need to proceed to a PII hearing. On the other hand, for those which do proceed to a PII hearing, it has become harder for the prosecution to win its case, because there is now only a narrow margin between material which would not be considered disclosable at all, and material which is too important to deny to the defence. To win, the prosecution have to demonstrate that the material is of marginal importance and would be highly unlikely to make a difference to the outcome of the trial, even though it is admitted to be disclosable under the test.
Continuing responsibilities
21. The prosecutor has a continuing responsibility to review whether any additional material becomes disclosable in the light of the developments of the case.
22. Likewise the investigator has a continuing responsibility to add new material to the schedules as necessary.
Intercept product
23. Intercept product provides an exception to the normal arrangements for both revelation and disclosure.
24. The product from communications intercepted under warrant is not disclosable (other than in exceptional cases, such as a prosecution of an offence under the Regulation of Investigatory Powers Act itself). The rules for the handling of intercept product are quite different from those that apply to all other types of material.
25. Under the Regulation of Investigatory Powers Act 2000, the investigator is required to destroy intercept product as soon as it is no longer needed for an authorised purpose. Destruction normally happens long before criminal proceedings are brought, and so intercept product would not normally be retained by the investigator or revealed to the prosecutor. It therefore does not form part of the "unused material" described in the schedules by the disclosure officer.
26. Apart from the very specific and exceptional cases as mentioned above, intercept product cannot be used as evidence by either side, and cannot be disclosed to the defence. However, if any of the product appears to be exculpatory, the investigator may retain this and reveal it to the prosecutor, to enable the prosecutor to fulfil his duty to secure the fairness of the prosecution. In rare cases the judge may order that he also needs to see it (often after he has been advised by the prosecutor that he should so order).
« Previous | Contents | Next »