Disclosure Manual: Chapter 12 - Applying the Disclosure Test

Material which satisfies the disclosure test is likely to be different in each case, and different for each accused. The courts have emphasised the need for prosecutors to adopt a "thinking approach" towards disclosure, and to maintain a flexible approach (see R v Olu and 2 Others [2010] EWCA Crim 2975 and R v R and Others [2015] EWCA Crim 1941. The AG’s Guidelines emphasise the requirement for disclosure to be carried out in a thinking manner in light of the issues in the case and not simply as a schedule completing exercise.

The prosecutor must inspect, view, or listen to any material that could reasonably be considered capable of undermining the prosecution case against the accused, or of assisting the case for the accused. The increase in digital material means that careful thought needs to be given to how communications, devices and social media material are dealt with. See Chapter 30.

In deciding what material satisfies the disclosure test, the prosecutor must pay particular attention to material that has potential to weaken the prosecution case, is inconsistent with it and/or which assists the case for the accused. This will include anything that goes toward an essential element of the offence charged, and that points away from the accused having committed the offence with the requisite intent.

What amounts to material which might satisfy the disclosure test will always involve considering:

• the nature of the case against the accused;
• the essential elements of the offence alleged;
• the evidence upon which the prosecution relies;
• any explanation offered by the accused, whether in formal interview or otherwise; and
• what material or information has already been disclosed.

Prosecutors are reminded that certain categories of material are presumed to meet the test for the disclosure (the ‘rebuttable presumption’). However, the presumption does not remove the thinking approach, a presumption can be rebutted and material should only be disclosed if it meets the test for disclosure.

Examples of material having the potential to weaken the prosecution case or to be inconsistent with it are:

• any material casting doubt upon the accuracy of any prosecution evidence;
• any material which may point to another person, whether charged or not (including the co-accused) having involvement in the commission of the offence;
• any material which may cast doubt upon the reliability of a confession;
• information provided by an accused person which indicates an explanation for the offence with which they have been charged;
• any other material that might go to the credibility of a prosecution witness,
• any material that might support a defence that is either raised by the defence or apparent from the prosecution papers. If the material satisfies the disclosure test, it should be disclosed even though it suggests a defence inconsistent with or alternative to one already advanced by the accused;
• any material which may have a bearing on the admissibility of any prosecution evidence;
• any material that might assist the accused to cross-examine prosecution witnesses, as to credit and/or to substance;
• the capacity of the material to have a bearing on scientific or medical evidence in the case;
• any material that might enable the accused to call evidence or advance a line of inquiry or argument; and
• any material that might explain or mitigate the accused's actions.

Material can have an adverse effect by the use made of it in cross-examination and by its capacity to support submissions that could lead to:

• the exclusion of evidence;
• a stay of proceedings; or
• a court or tribunal finding that any public authority had acted incompatibly with the accused's rights under the Human Rights Act 1998.

Disclosure officers and prosecutors should give careful consideration to the type of material described below. Experience suggests that it has the potential to satisfy the disclosure test where it relates to the defence being put forward either at the initial stage, or in particular, following receipt of a defence statement:

• recorded scientific or scenes of crime findings retained by the investigator which relate to the accused, and are linked to the point at issue, and have not previously been disclosed;
• all previous inconsistent descriptions of suspects, however recorded, together with all records of identification procedures in respect of the offence(s) and photographs of the accused taken by the investigator around the time of his arrest (especially in cases where identification is in issue);
• information that any prosecution witness has received, has been promised or has requested any payment or reward in connection with the case;
• plans of crime scenes or video recordings made by investigators of crime scenes;
• names, within the knowledge of investigators, of individuals who may have relevant information and whom investigators do not intend to interview;
• records which the investigator has made of information which may be relevant, provided by any individual (such information would include, but is not limited to, records of conversation and interviews with any such person); and
• any previous statements or contact with witnesses.

Experience suggests that any material which relates to the accused's mental or physical health, intellectual capacity, or to any ill treatment which the accused may have suffered when in the investigator's custody is likely to have the potential for casting doubt on the reliability of an accused's purported confession, and prosecutors should pay particular attention to any such material in the possession of the prosecution.

If material substantially undermines the prosecution case, assists the accused or raises a fundamental question about the prosecution, the prosecutor will need to reassess the case in accordance with the Code for Crown Prosecutors, and decide after consulting with the investigator whether the case should continue.

Normally, the result of applying the disclosure test will mean that material disclosable to one accused is likely to be disclosable to all co-accused in the same proceedings. However, disclosure must be considered separately for all accused. Where the particular circumstances dictate, disclosure of different material may have to be made. If one accused seeks disclosure of material given to a co-accused, he or she can apply to the judge in the usual way (see Chapter 16).

Prosecutors should also bear in mind that, while items of material viewed in isolation may not satisfy the disclosure test, several items together could have that effect. Care should also be taken to ensure that all apparent defence themes are identified when taking into account disclosure decisions, including those that are apparent from cautioned interviews, correspondence, and other sources. If a potential defence is apparent, the prosecutor should not wait for the defence statement before disclosing material that might assist.

Prosecutors should resolve any doubt they may have in favour of disclosure unless the material is sensitive and falls properly to be placed before the court in a PII application. There is no requirement to disclose material which is either neutral or adverse to the accused: see Lord Bingham in R v H and C [2004] UKHL 3 at [35] [L903] and the disclosure test does not involve consideration of admissibility.

Disclosure procedure

Disclosure to the accused can be achieved by either copying the item, or where this is not practicable or desirable, by allowing the accused to inspect it. Where the item to be disclosed is an item that has been copied by the disclosure officer to the prosecutor, it will usually be appropriate for the prosecutor to copy the item on to the defence. However, there may be circumstances where this is not appropriate. For example, where:

• the quality of the copy supplied to the prosecutor is inadequate;
• the prosecutor considers that the material is not suitable for copying for other reasons (for example, sexual content); or
• where the material has yet to be edited by the police.

Where supplying copies may well involve delay, or otherwise not be practicable or desirable, the investigator should make reasonable arrangements for the video recordings or scientific findings to be viewed by the defence. The prosecutor and disclosure officer should agree how disclosure can be best made and the decision should be endorsed by the prosecutor on the MG6C and on the Disclosure Record Sheet (DRS). It is important that a careful record is kept by the disclosure officer (and by the prosecutor on the DRS) of what items are inspected by or copied to the accused and where the disclosure officer copies something direct, a copy should also be sent to the prosecutor.

For information that is not recorded in writing, the disclosure officer may decide in what form the material should be disclosed. Transcripts should be endorsed by the transcriber as accurate. Disclosure of non-sensitive material should be made promptly and the prosecution and defence should engage early.

Schedule endorsements

When considering the initial duty to disclose, the prosecutor should record decisions on the MG6C, giving brief reasons for the decisions in the reason’s column where:

• the question of whether the material meets the test for disclosure may not be apparent from the description;
• the prosecutor has decided to disclose material not identified by the disclosure officer on form MG6E as satisfying the disclosure test, or
• reasons might otherwise be helpful.

The MG6C should be signed and dated by the prosecutor upon completion and the DRS noted accordingly.

Where an item satisfies the disclosure test and is to be disclosed, the prosecutor should in the appropriate column of the MG6C enter either:

• a 'D', and indicate in the reasons section whether a copy is attached; or
• an 'I' where the item is to be disclosed and the prosecutor considers that inspection is more appropriate.

Occasionally, items of unused material may be incorporated into the prosecution case. This should be identified on the schedule by endorsing the word 'evidence' alongside the item.

Where items are not disclosable the schedule may be endorsed with ‘CND’ – because the item is ‘clearly not disclosable’, or ‘ND’ – ‘not disclosable’. The difference in endorsement depends upon whether or not the item has had to be viewed in order to take the decision on disclosure.

The expectation is that all items are described sufficiently to enable the prosecutor to make an informed decision on disclosure. Items that have an adequate description upon which to take a decision can be deemed 'clearly not disclosable' and should be marked 'CND'.

Where it is necessary to review the item, because the description was inadequate (and there is insufficient time for the schedule to be amended prior to the trial) or because it is material presumed to be disclosable, the endorsement should be marked 'ND' (for 'not disclosable') and the prosecutor must note in the reasons column that the disclosure test has been fully applied and that the item neither undermines the prosecution case nor assists the case for the defence.

Items which are available to the defence under the provisions of the Police and Criminal Evidence Act 1984

There are some types of material, such as custody records and search records, to which the suspect is entitled to a copy otherwise than by CPIA disclosure. Paragraph 5 of the Code specifies custody records as being amongst the types of material that ought to be routinely retained in a criminal case and some of these items are now included within the categories of material presumed to be disclosable. Consideration should be given to whether there is any disclosable information contained within the record, including material which may be disclosable to a co-defendant. If there is, it should be disclosed in the usual way.

Where the custody record or other search record does not meet the disclosure test, the appropriate endorsement on the schedule would be “PACE entitled”, or if the custody record relates to a co-defendant, “CND”.

In cases before a Crown Court, rule 15.2(2) of the Criminal Procedure Rules requires that at the same time as serving initial disclosure upon the defence, the prosecutor must notify the court officer that this has been done.

Timing of Initial Disclosure

The Attorney General’s Guidelines on Disclosure envisage that disclosure should be served in advance of the first hearing where possible. That is likely to be possible where a case is charged on the Full Code Test and a not guilty plea is anticipated.

In all other cases, initial disclosure should be served:

• In the magistrates’ court, as soon as reasonably practicable after a not guilty plea is entered
• In the Crown Court, prior to the Plea and Trial Preparation Hearing (PTPH), where possible or otherwise when the prosecution serves its case (stage 1) and in accordance with any direction made by the court.