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Pre Trial Disclosure or Evidence

At various stages in a criminal case the prosecution must fulfil its duties for pre trial disclosure as this is critical to the defendant's right to a fair trial. In order for the defendant to properly prepare a defence he must be made aware of the evidence against him. Therefore it is wrong for the prosecution to withhold evidence that weaken their case as their wider obligation is not to mislead the court and to ensure that a miscarriage of justice does not occur. The right to pre trial disclosure is also enshrined in the ECHR Art 6 (1) and Art 6 3 (b).

Unless the defendant has pleaded guilty you must seek disclosure of used material from the prosecution in order to evaluate the case against your client. You are entitled to initial prosecution disclosure of unused material under s 3 CPIA 1996 if the case is to be tried summarily and a not guilty plea is indicated. If the case is being tried summarily you may also want to consider drafting a defence case statement although this is mandatory if you client is being tried on indictment. The following outlines the disclosure obligations depending on the case.

Summary only

• The prosecution discloses used material in the form of advanced information
• If the defendant pleads not guilty, unused material or initial disclosure which might undermine the prosecution case or assist the defence case must be disclosed. S3 CPIA 1996
• The defence may voluntarily serve a defence statement within 14 days s6
• Unused material that might assist the defence must be disclosed under the prosecution's continuing duty to review unused material. s7A

Offences triable either way

• The prosecution discloses used material in the form of advanced information
• Disclosure obligations depend upon whether the case is to be tried summarily or on indictment
• If on indictment prosecution unused material must be served 14 days after committal
• Is summary, the above procedure must be followed
• If on indictment, the procedure below must be followed

Indictable only offences and cases to be tried on indictment

• Evidence the prosecution intends to use at trial must be disclosed to the defence under reg 2 Crime and disorder Act 1998 within 50 or 70 days  of the case being sent to the Crown Court
• Evidence that would undermine the prosecution case or assist the defence case must be disclosed.
• The defence case statement must be served to the prosecution within 14 days of the initial disclosure
• The prosecution is then under the obligation to serve further unused material 

Public Interest Immunity

There will be occasions where the prosecution will claim that they cannot disclose evidence to the defence because it would be damaging to the wider public interest. If the court rules that this is the case then the prosecution can withhold this information or order the witness not to answer questions on the matter. Examples of material that might be covered by PII include documents relating to national security, confidential information, the identity of police informants  and undercover police officers, details for premises used for police surveillance and information pertaining to the welfare of children. The procedure for claiming immunity is an inter partes application where the prosecution is required to notify the defence that they are applying to the court for a ruling and to indicate the type of material over which they are claiming PII. The court will hear submissions from both parties and then decide whether or not the information would be disclosed.

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