Protocol on the disclosure of unused material in the Crown Court

A new protocol on the disclosure of unused material in Crown Court criminal trials in England and Wales has been published and became effective from February 20, 2006.

The protocol applies to all trials on indictment and is designed to establish firm principles for the management of disclosure, whether by the prosecution or the defence, in order to improve the efficient delivery of justice and thereby enhance public confidence in the criminal justice system.

It sets out the ‘overarching principle’ that unused prosecution material will fall to be disclosed if, and only if, it satisfies the test for disclosure applicable to the proceedings in question, subject to any overriding public interest considerations.

The protocol requires a strict compliance with the provisions in the Criminal Procedure and Investigations Act 1996 (CPIA) and the Codes of Practice issued under Section 23(1) of the CPIA. The date of the commencement of the relevant criminal investigation depends on which disclosure provisions need to be followed, due to relatively recent amendments to the CPIA by the Criminal Justice Act 2003.

So, if the criminal investigation commenced:

• On or after April 1, 1997, but before April 4, 2005, then the CPIA in its original form will apply, with separate tests for disclosure of unused prosecution material at the primary and secondary disclosure stages (the latter following service of a defence statement by the accused). These disclosure provisions are supported by the Code of Practice introduced in S.I. 1033/1997.
• On or after April 4, 2005, the law is set out in the CPIA as amended by Part V of the Criminal Justice Act 2003. This introduced a single test for disclosure of unused prosecution material and this is supported by the Code of Practice introduced in S.I. 985/2005.

In relation to offences in respect of which the criminal investigation began prior to April 1, 1997, the common law will apply, and the test for disclosure is that set out in R v Keane (1994).

Guidance in the protocol, aimed specifically at police officers, investigators and disclosure officers, stresses the need:

• For rigorous compliance with the provisions in the Code of Practice for the gathering of material, the assessment of it for ‘relevance’ and the scheduling of material satisfying the latter test.
• For schedules to be prepared timeously, so as to ensure that the prosecutor’s duty to make disclosure under Section 3(1) of the Act can be discharged ‘as soon as practicable’ after the matter has been committed or transferred to the Crown Court, or case papers have been served following a Section 51 Crime and Disorder Act 1998 ‘sending’.
• For information to be communicated promptly to the prosecutor where there are problems with providing him/her with case papers and/or disclosure schedules within the normally permitted timescales, so that an appropriate variation of the standard directions can be sought at the magistrates’ court (or subsequent Crown Court hearing).

Police officers, investigators and disclosure officers should also be aware that under the protocol, CPS lawyers advising pre-charge at police stations are advised to consider conducting a preliminary review of the unused material generated by the investigation and provide early advice on disclosure issues. If a preliminary review is not undertaken, CPS lawyers should conduct a review of disclosure at the same time as they conduct an initial review of the evidence. The full protocol document can be found in full at www.hmcourts-service.gov.uk/cms/files/disclosure_protocol.pdf