Pre Charge Disclosure

Rene Barclay, CPS explains the law relating to disclosure prior to interview

This article considers the extent of the obligation on investigators to disclose material to suspects prior to charge and, in particular, prior to interview under caution. For the purpose of making “disclosure” to the defence of material gathered by the police, whether

material upon which the prosecution intends to rely to prove its case or not, the law distinguishes between the investigation stage and the prosecution stage.

The Prosecution Stage

Once criminal proceedings have been commenced, the prosecution is required to serve on the defence the material upon which it relies for the purposes of a mode of trial hearing, a committal hearing, a summary trial, a transfer, or the indictable-only offence procedure.

Similarly, once proceedings have commenced, relevant material which is not relied upon by the prosecution (ie unused material) must be disclosed:

• As soon as is reasonably practicable after committal, transfer, service of prosecution case, entry of a not guilty plea in a summary trial or service of a defence statement (CPIA 1996).

• In any other situation, where the interests of justice and fairness require; examples include information which might assist a defendant either in mitigation, or when preparing a case for a committal hearing/pre-committal abuse of process application, or when making an application for bail [R v DPP ex parte Lee 1999 2 AER at page 237 and Attorney General’s Guidelines on disclosure at paragraph 34]

These requirements are consistent with the disclosure rights of a defendant under Article 6 of the Human Rights Act 1998,

as developed by the courts.

The Investigation Stage

The disclosure to a suspect prior to interview of material/information gathered by investigators (whether that material points towards the suspect as having committed the offence or otherwise) is not regulated in terms of PACE 1984, nor in either of the relevant Codes of Practice C or E, which are principally concerned with procedural safeguards and the welfare of the suspect.

The quantity and quality of pre-interview disclosure is important. Inappropriate disclosure can have significant ramifications for the case. For example:

• It may result in answers given by a suspect in interview being excluded at a trial.

• It may properly cause the suspect’s representative to advise the suspect to make no comment in answer to questions put.

• It may delay the investigation if the interview needs to be stopped for legal advice as a result of new undisclosed material being put to the suspect.

• It may frustrate the proper tactical approach of the investigator to testing the suspect’s account.

• It may deprive the suspect of the opportunity to be diverted from prosecution, which may result in future proceedings being stayed as an abuse of process.

The issue of pre-interview disclosure has, however, been considered most frequently by the courts in the context of applications under Section 78 PACE to exclude interview evidence. Such applications are commonly put on the basis that inadequate disclosure justifies the giving of legal advice to the suspect to remain silent. Accordingly, acceptance of such advice amounts to a proper reason for not drawing any adverse inference, under Section 34 CJPO Act 1994, from the defendant’s failure to mention facts when questioned in interview.

The following points emerge from the case law.

Firstly, there is no obligation on the police to disclose the whole of the available evidence against a suspect prior to interview [R v Imran and Hussein (1999 C.L.R at page 754)] and the adverse inference provisions do not require the police to make full disclosure.

In Imran and Hussein the defence submitted that it was unfair for the police not to have disclosed to the suspect Imran, prior to interview, that he had been filmed committing the offence.

The trial judge ruled that it was totally wrong to submit that a defendant should be prevented from lying by being presented with the wh