Disclosure is at the very heart of the criminal process in England and Wales. Indeed, proper disclosure lies at the heart of every fair trial. It is therefore essential to have an up to date knowledge and understanding of the obligations the law places, both on the prosecution and the defence under the new law and further, be aware of possible sanctions against an accused person for non-compliance with these obligations.
Our aim in this article is to give you a helpful overview of the law of disclosure under the Criminal Procedure and Investigation Act 1996 (CPIA), and the very important new amendments made by the Criminal Justice Act 2003 (CJU) which came into force in April of this year.
The law regarding disclosure has been subject to a complete overhaul by the current Labour government. Indeed, before the CPIA, criminal courts did not have the benefit of a comprehensive set of rules to enable an accused person to discover what the prosecution may have which might assist the defence case.
The new amendments made to the CPIA need to be carefully considered and understood, not only in order to most effectively prepare and present a defence case for trial, but to ensure that the prosecution have been made to properly and fully adhere to their duties of disclosure to the defence. An example is when a bug is placed in a suspect's house under the Police Act 1977 and the Regulation of Investigatory Powers Act 2000 (RIPA). The prosecution must prove the legality of the bug by showing the applications and authorities to place the bug were properly authorised.
The Criminal Procedure and Investigation Act 1996
Under section 3(1)(a) of the CPIA, the prosecution are required to disclose to the defence any material which, in the prosecutor's opinion, might undermine the Crown's case. The test is a subjective one (based on the opinion of the prosecutor) but it covers a wide range of material to include anything which might weaken the prosecution case against the defendant. For example, it includes any material which casts doubts on the accuracy of any prosecution evidence, may point to another person having involvement in the commission of the offence or may go the credibility of a prosecution witness.
The defence is required by section 5 of the CPIA to serve a 'defence statement', giving an outline of the accused's defence and what areas of the prosecution case the defence take issue with and why.
Secondary prosecution disclosure
Once the defence have served their defence statement, the prosecution must disclose to the accused any prosecution material which might reasonably be expected to assist the accused's defence as disclosed in the defence statement. The test here is an objective one. The Attorney General's Guidelines suggest that certain types of material may be particularly relevant at this stage of secondary disclosure. The list includes for example, information that any prosecution witness has received, been promised or requested any payment or reward in connection with the case or scientific/scenes of crimes findings relevant to an issue raised in the defence statement. In order to trigger any meaningful secondary disclosure, the defence case statement has to be drafted very carefully.
Section 9 of the CPIA imposes a duty on the prosecution to review throughout the trial process whether any further material ought to be disclosed to the defence. In practice, the defence have to remind the prosecution of this duty!
Failure to comply with defence obligations may result in the court, or with the leave of the court, the prosecutor or any co-defendant, may make comment. Even more important, the jury may draw inferences as appear proper in deciding whether the accused is guilty of the offence concerned.
The New Law - Criminal Justice Act 2003
Part 5 of the CJA 2003 makes a number of important amendments to the CPIA.
Defence statements - the new law
The accused must now provide a far more detailed defence statement, setting out not only the nature of the defence but also including any particular defences on which he intends to rely, and indicate any points of law that will be argued at trial.
The original requirement was for a single defence statement. Now before the trial starts, the accused has to provide an updated defence statement, or a written statement that he has no changes to make to the defence statement previously served.
Now there is an obligation on the defence to identify and give details of witnesses that will be called.
Service of defence case statement to co-defendants
In R v Cairns , the Court of Appeal ruled that the prosecution would sometimes have to disclose the defence statement of one co-defendant to the other where it might assist the defence of that other co-defendant. Now if the court so orders, defence statements can be served on all co-defendants.
The defence statement is now of greater importance because there is provision for the jury to be shown the defence statement (or updated defence statement if there is one).
Given the new changes, the importance of a very carefully worded defence statement will be all too obvious to the reader. Additionally, the importance of the defence team having a clear theory of the case from an early stage is essential.
There now is an obligation to reveal the identity of any expert witnesses who the defence have instructed - whether or not they are to be called as defence witnesses. The dangers here are obvious. Take the case where the prosecution are relying on a CCTV video to identify the accused and the identity is challenged by the defence. The defence might instruct a facial mapping expert to hopefully cast doubt on the prosecution assertion that the man on the video is the defendant. However, if the expert concludes that it is the accused, the prosecution will now know this and indeed can call the expert as a prosecution witness!
The new law requires the prosecutor to disclose to the accused any prosecution material which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused.
This change makes the test an objective one, and effectively combines primary and secondary disclosure. This duty, as before, is a continuing one.
The European Convention on Human Rights
The European Court of Human Rights has issued strong statements on the accused's rights to disclosure at all stages of criminal proceedings. In Edwards v UK, the European Court said that (a) it is a requirement of fairness under Article 6(1) of the Convention (which guarantees the right to a fair trial), that prosecuting authorities disclose to the defence all material evidence for or against the accused, and (b) failure to do so gave rise to a defect in the trial proceedings.
The question of whether the prosecution's failure to make proper disclosure will be held to have deprived a defendant of a fair trial under Article 6 will depend on the circumstances of the particular case. Now the European Convention on Human Rights has been incorporated into our law, it is important that the defence make sure the courts and prosecutors, when making decisions on disclosure, have Article 6 in mind.
Zafar Ali is a specialist criminal defence Barrister at 23 Essex Street Chambers in London dealing with very serious crime.
Aziz Rahman is a Solicitor- Advocate and Partner at the leading Criminal Defence firm Rahman Ravelli Solicitors, specialising in Human Rights, Financial Crime and Large Scale Conspiracies/Serious crime. Rahman Ravelli are members of the Specialist Fraud Panel.