Disclosure Manual: Chapter 17 - File and Information Management

Confidentiality

All unused material that has been disclosed to the defence is subject to the provisions of section 17 of the CPIA. The effect is to prevent the use of the disclosed material by the accused in anything other than the criminal proceedings that the material was originally disclosed (including appeals or any further criminal proceedings arising out of the original case). The only exceptions are where the permission of the court is obtained, or where the material has been displayed or communicated to the public in open court.

The case of Taylor v SFO [1998] UKHL 39, provides some protection to material which is disclosed other than under the CPIA.

If the disclosed material is used outside these circumstances, an offence under section 18 of the CPIA may have been committed. The Criminal Procedure Rules part 15 govern the procedure where the court is to consider the exercise of power to punish for contempt for an unauthorised disclosure under section 18.

Part 15.7 of the Criminal Procedure Rules sets out the procedure for the notification and determining of applications by the accused to use the material for other purposes.

Instructions to the prosecution advocate

The prosecutor has responsibility to ensure that the prosecution advocate is properly instructed on all disclosure issues. Instructions should address fully:

• any decision the prosecutor has made about the disclosure of material which satisfies the test where the reasons for disclosure are not readily apparent, and enclose copies of any such material or explanatory correspondence;
• information about the reasonable lines of enquiry and the approach to electronic material as outlined in any Disclosure Management Document;
• any decision the prosecutor has made about sensitive material. In any case where Public Interest Immunity is or may be an issue, the instructions should refer to R v H and C [2004] UKHL 3 for its valuable analysis of the law; and
• the prosecutor's comments on the defence statement.

Instructions to the prosecution advocate in cases where there is sensitive unused material should, subject to handling instructions in Chapter 24 of this Manual, include the following:

• the MG6D;
• the MG6E;
• copies of any items of sensitive unused material supplied to the prosecutor;
• any notes made by the prosecutor in relation to sensitive unused material;
• any specific instructions to the prosecution advocate in relation to sensitive unused material; and
• specific instructions on the handling and security of sensitive material consistent with its protective marking.

If the document contains relevant information that must be disclosed to the accused because it satisfies the disclosure test, the prosecutor and the disclosure officer will need to consider whether the document can be edited if it contains sensitive material.