What is disclosure?
To help guarantee a fair trial a defendant has the right to be provided with any material which could assist them in defending themselves. They have a right to an open and honest prosecution which reveals any weakness in the case against them. Investigators must pursue all reasonable lines of enquiry and this includes investigating matters which could point towards innocence as well as guilt.
When a defendant is charged with an offence, prosecutors are required to provide the defence with any material that undermines the case for the prosecution or assists the case for the defendant. This could be, for example, CCTV footage, statements from witnesses, mobile phone messages, social media conversations or photographs.
The disclosure officer has specific responsibility in this area during an investigation. The disclosure officer is usually a police officer with responsibility for examining all unused material as it is identified, and ensuring it is scheduled where appropriate.
Scheduling refers to the process of recording the identified material. The purpose of the Disclosure Schedule is to inform the prosecutor of the existence of relevant unused material. The schedule will also be provided to the defence. The test that is applied to scheduling is ‘relevance’. All relevant material must be scheduled unless it is evidence. The definition of relevance is contained within the CIPA Code of Practice as ‘anything that appears to have some bearing on any offence under investigation, or any person being investigated, or on the surrounding circumstances unless it is incapable of having any impact on the case’.
Each item on the schedule must be fully described so that an assessment can be made about whether the item is capable of undermining the prosecution case or assisting the defence.
Where the prosecutor requests that material is disclosed, the defence are given a copy of, or access to, any material which could reasonably be considered capable of undermining the prosecution case or of assisting the case for the accused.
The defendant may serve a defence statement, which is a written statement that sets out the nature of the accused’s defence. It must comply with the requirements set out in the Criminal Procedure and Investigations Act 1996. Once a defence statement is received, the police have a duty to review all of the material again in light of the nature of the defence being raised. They must reconsider whether there are more ‘reasonable lines of enquiry’ and then further schedule any additional relevant unused material as part of their continuing duty to disclose.
The CPS and the police have a duty to keep disclosure under review throughout the life of a case. If new material comes to light in the lead up to a trial, or during a trial, then that material will be reviewed by prosecutors who will determine if it has any impact on the proceedings. If the new material is deemed to mean that there is no longer a realistic prospect of conviction, then the CPS is obligated to stop proceedings.