Disclosure Manual: Chapter 1 - Introduction

These instructions explain how investigators and the Crown Prosecution Service (collectively, 'the prosecution team') have agreed to fulfil their duties to disclose unused material to the defence. These duties arise under statute and at common law. It is important that the prosecution team adopt consistent practices across England and Wales.

This manual contains practical as well as legal guidance relating to disclosure. This is designed to ensure that the statutory duties are carried out promptly, efficiently, and effectively. The templates for letters and documents referred to can be found elsewhere on the police and CPS case management systems.

The current law is set out in:

• the Criminal Procedure and Investigations Act 1996 as amended ('the CPIA');
• the Code of Practice issued under section 23 of the CPIA 1996 ('the Code of Practice');
• Part 15 of the Criminal Procedure Rules 2020, as from 5 October 2020 ('the CrimPR');
• the Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011 issued under section 12 of the CPIA 1996 ('the Regulations');
• Magistrates' Courts (Criminal Procedure and Investigations Act 1996) (Disclosure) Rules 1997/703;
• Covert Surveillance and Covert Human Intelligence Sources Code of Practice.

In addition, there are a number of additional sources of guidance which build upon the existing law. This includes:

• The Attorney General’s Guidance on Disclosure 2022 (‘The AG’s Guidelines’);
• The 2013 Protocol and Good Practice Model on Disclosure of Information in Cases of Alleged Child Abuse and Linked Criminal and Care Directions Hearing (3 October 2013)

Interpretation

For the purpose of this manual, references to unused material are to material that may be relevant to the investigation, which has been retained but does not form part of the case for the prosecution against the accused.

The Code of Practice assumes that criminal investigations (as defined in the CPIA) are primarily conducted by police officers. However, its provisions apply equally to persons other than police officers who are charged with the duty of conducting an investigation (see 1.1). For that reason, references in this manual to a police officer, or 'the police' should be interpreted as applying equally to other investigators.

Relevant Material is defined in the Code of Practice as anything that appears to an investigator, or the officer in charge of an investigation or the disclosure officer 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.

Revelation refers to the police alerting the prosecutor to the existence of relevant material that has been retained in the investigation. Revelation to the prosecutor does not mean automatic disclosure to the defence.

Disclosure refers to providing the defence with copies of, or access to, any 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, and which has not previously been disclosed. The application of this test to relevant material is referred to in this manual as 'the Disclosure Test'. The duty on a prosecutor to review material is an ongoing one and the disclosure should be kept under continuous review throughout proceedings. Prosecutors should note that this test does not include an assessment as to whether the material is or could be admissible in a trial, or the merits of a defence.

Triggers for statutory disclosure

The prosecutor's statutory duty to disclose unused material to the accused is primarily triggered by:

• a plea of not guilty in the magistrates' court;
• the sending for trial at the Crown Court;
• the preferment of a voluntary bill of indictment; or
• the service of the prosecution case following the sending of an accused to the Crown Court under section 51(1) Crime and Disorder Act 1998.

A full list is set out in s1 of the CPIA.

Consequences of non-disclosure

Investigators and disclosure officers must be fair and objective and must work together with prosecutors to ensure that disclosure obligations are met. A failure by the prosecutor or the police to comply with their respective obligations under the CPIA or Code of Practice may result in a defence application to stay proceedings as an abuse of process, the exclusion of material evidence or a successful appeal.

The test for a stay of proceedings as an abuse of process is a high one. In DS [2015] EWCA Crim 662 the then Lord Chief Justice overturned the decision of a trial judge to stay proceedings as an abuse notwithstanding very serious failings in the disclosure of unused material. It was observed that the proper sanction as regards these failures could be a wasted costs order. Similarly, in Hewitt [2020] EWCA Crim 1247, the Court of Appeal noted that proceedings should not be stayed if the trial process could correct the prejudice caused, thereby ensuring a fair trial. It is therefore important to ensure that the duties imposed by the CPIA and Code of Practice are scrupulously observed. If the prosecutor is satisfied that a fair trial cannot take place because of a failure to disclose which cannot or will not be remedied, including by (for example) making formal admissions, amending the charges or presenting the case in a different way so as to ensure fairness or in other ways, he or she must not continue with the case.

The accused has responsibilities under the CPIA, and failure to comply with them may have the following consequences:

• loss of entitlement to make an application under section 8 of the CPIA for disclosure of additional material;
• appropriate comments on any faults by the accused in disclosure under section 11 of the CPIA, or;
• the court drawing inferences from any failure in deciding whether the accused is guilty of an offence.

Where a failure to provide a defence statement results in additional expense for the prosecution, a wasted costs order may be appropriate: SVS Solicitors [2012] EWCA Crim 319.

The proper application of the provisions of the CPIA by the prosecution team will ensure that only material required to be disclosed by the CPIA is disclosed. There is no place in law or otherwise for 'blanket' or ‘keys to the warehouse’ disclosure. Such practice leads to inconsistency and uncertainty, unnecessary work, and unnecessary costs to the prosecution, defence, and public funds.

The link between disclosure and the investigation

The prosecution team's duties under the CPIA are not simply about compiling schedules of unused material as part of preparation for court. At the heart of every investigation is the obligation, in the CPIA and Code of Practice, to pursue all reasonable lines of enquiry, whether these point towards or away from the suspect.

In the early stages of the investigation, it may not be clear whether an offence has been committed, whether a prosecution is likely to follow and whether material obtained may be used in evidence or will be unused.

The CPIA and Code of Practice determine the extent of the enquiries that should be made, the material that should be discarded or retained, and the material that is considered relevant revealed and, where required, disclosed. The distinction between evidential and unused material often only becomes apparent as the investigation progresses. The prosecution team should take the opportunity to both confirm or rebut potential and proffered defences, and should be aware of the extent to which any disclosable material might weaken the case. A safe prosecution requires a dedicated, professional and 'thinking' approach which continues throughout the case as the evidence becomes apparent and issues develop.

The Investigation and the Rebuttable Presumption

The AG’s Guidelines and the Code of Practice introduced the concept of a ‘rebuttable presumption’ (“RP”) in favour of disclosing certain categories of material. This concept acknowledged that there are certain materials generated during the course of an investigation which are almost always likely to contain relevant material (and therefore must be scheduled) and which will often contain information which may undermine the prosecution case or assist the defence case (and so will usually be disclosable).

Prosecutors and investigators are required to start on the basis that these items will be disclosable, a presumption which can be rebutted with a considered application of the disclosure test.

The categories of material to which the presumption applies are set out in paras 86-92 of the AG’s Guidelines and para 6.6 of the Code of Practice:

1. records which are derived from tapes or recordings of telephone messages (for example 999 calls) containing descriptions of an alleged offence or offender;
2. any incident logs relating to the allegation;
3. crime reports and crime report forms, or where not already contained within the crime report;
   • an investigation log;
   • any record or note made by an investigator (including police notebook entries and other handwritten notes) on which they later make a statement or which relates to contact with suspects, victims or witnesses;
   • an account of an incident or information relevant to an incident noted by an investigator in manuscript or electronically;
   • records of actions carried out by officers (such as house-to-house interviews, CCTV or forensic enquiries) noted by a police officer in manuscript or electronically;
   • CCTV footage, or other imagery, of the incident in action;
4. the defendant’s custody record or voluntary attendance record;
5. any previous accounts made by a complainant or by any other witnesses;
6. interview records (written records, or audio or video tapes, of interviews with actual or potential witnesses or suspects);
7. any material casting doubt on the reliability of a witness e. g. relevant previous convictions and relevant cautions of any prosecution witnesses and any co-accused.

It is important to remember that the Code and Guidelines describe categories of material. Investigators and prosecutors should review material carefully and consider whether it falls into the categories. The list is not intended to cause automatic disclosure, the disclosure test must still be applied in a thinking manner.

When RP material exists, it must be retained and listed on the appropriate schedule (CPIA Code paragraph 6.6). Where material within one of more of the RP categories does not exist, the investigator must inform the prosecutor that that is the case.

Disclosure Management Documents

Completion of a Disclosure Management Document (DMD) is mandatory in all Crown court cases. Prosecutors also need to consider whether it would be beneficial in cases heard in the magistrates’ court or youth court. The Attorney General’s Guidelines describes the DMD as a living document intended to assist the court which will enable early engagement with the prosecution. It is most likely to be beneficial in cases with the following features:

1. Substantial or complex third-party material;
2. Digital material in which parameters of search, examination or analysis have been set;
3. International enquiries;
4. Linked operations;
5. Non-recent offending
6. Material held or sought by the investigation that is susceptible to a claim of legal professional privilege.

DMDs outline the prosecution’s strategy and approach taken in relation to disclosure. It may set out:

1. How the disclosure responsibilities have been managed;
2. A brief summary of the prosecution case and a statement outlining how the prosecutor’s approach complies with the disclosure regime;
3. The prosecutor’s understanding of the defence case, including information revealed during interview. The prosecutor may wish to explain their understanding of what is in dispute and what is not in dispute, the lines of inquiry that have been pursued as a result of these issues and specific disclosure decisions that have been taken;
4. An outline of the prosecutor’s approach to disclosure, including:
   1. The lines of inquiry pursued, particularly those which may assist the defence.
   2. The timescales for disclosure and, where relevant, how the review of unused material has been prioritised.
   3. The method and extent of examination of digital material, in accordance with the Annex A to the AG’s Guidelines.
   4. Any potential video footage.
   5. Any linked investigations, including an explanation of the nexus between investigations and any memoranda of understanding and disclosure agreements between investigators.
   6. Any third-party material, including the steps taken to obtain the material.
   7. Any international material, including the steps taken to obtain the material.
   8. Credibility of prosecution witnesses (including professional witnesses).

Transparency of approach is crucial - the prosecution must be able to explain to the defence and the court what we are doing as well as, importantly, what we do not intend to do.

The DMD should be being considered at the very outset of the case. It is essential that disclosure issues are addressed pre charge where possible and that disclosure is approached by both investigator and prosecutor through the exercise of judgment and not simply as a schedule completing exercise. Agreeing a disclosure strategy at the charging stage will help with completion of the DMD.

The DMD should be served on the defence at the same time as initial disclosure by uploading to the Digital Case System. Prosecutors should ensure, as with any material that is disclosed, that irrelevant sensitive and personal data is appropriately redacted from the DMD.

In cases sent to the Crown Court for trial where the accused is expected to maintain a not guilty plea, the AG’s Guidelines encourage initial disclosure to be served prior to the Plea and Trial Preparation Hearing (PTPH). Utilising the DMD at the PTPH can be an effective mechanism for ensuring proper disclosure management and clear instructions in relation to raising the DMD in court should be given to prosecution counsel in by the prosecutor in each case. Counsel should be reminded of the need to record the judicial and defence response to the DMD on the Hearing Record Sheet.

The defence should be invited to identify any likely trial issues as well as any additional lines of enquiry that they consider to be reasonable and which have not yet been undertaken. This will enable the Judge to robustly manage the case from the outset. This forms an essential part of Better Case Management.

The applicable disclosure provisions

The obligations in relation to unused material and disclosure are determined by the date on which the investigation began.

The date on which the investigation began will determine:

• whether the CPIA applies at all;
• whether the amendments to the CPIA as a result of Part 5 of the Criminal Justice Act 2003 and section 60 of the Criminal Justice and Immigration Act 2008 apply;
• which edition of the Code of Practice (i.e. the 1997 2005 2015 or 2020 edition) should be referred to; and
• whether the 2002 edition of the Joint Operational Instructions (JOPI) should be referred to.

Therefore:

• Where the investigation began before 1 April 1997, the common law disclosure rules will apply. Investigators and prosecutors should refer to the 2000 Guidelines, the 1997 Code of Practice and the 2002 JOPI;
• Where the investigation began on or after 1 April 1997 but before 4 April 2005, the un-amended CPIA will apply, and investigators and prosecutors should refer to the above editions of the Code of Practice and the JOPI;
• Where the investigation began on or after 4 April 2005, then the CPIA, as amended by the CJA 2003, applies – investigators and prosecutors should therefore refer to the 2005 or the 19 March 2015 edition of the Code of Practice, and this edition of the manual (formerly the JOPI);
• Section 6A(1)(ca) inserted by section 60 of the 2008 Act applies where the investigation began on or after 4 April 2005 and where a plea of not guilty has been entered (in the magistrates' court) or where the case has been committed, transferred (now allocated) or sent to the Crown Court on or after the 3 November 2008;
• Where an investigation began after 31st December 2020, the 2020 edition of the Code of Practice will apply.

All judicial interpretations of the CPIA 1996 and Code of Practice from time-to-time will continue to apply (for example, R v H and C [2003] EWCA Crim 2847).

The investigator should inform the prosecutor of the date when the investigation began. In cases of any doubt, the prosecutor should check the date with the investigator. It may be that separate investigations were commenced either side of one of the relevant dates, as a result of which an accused is charged with separate offences. This may mean that two different disclosure regimes will apply to different charges in the same proceedings.