Disclosure Manual: Chapter 2 - General Duties of Disclosure Outside the CPIA 1996

General principles

The duties of revelation and disclosure do not only arise under the CPIA. Further legal obligations arise which assist:

• the prosecutor, in determining whether a person should be charged with an offence, and with which offence; and
• the accused, by providing certain material during the early stages of a prosecution.

Revelation and charging

The investigator or disclosure officer must inform the prosecutor as early as possible whether any material weakens the case against the accused. An evidential report to a prosecutor for a charging decision must contain the key evidence upon which the prosecution will rely, together with any unused material which satisfies the disclosure test.

A revised Code for Crown Prosecutors was published on 26 October 2018. Disclosure considerations have now been incorporated into the evidential stage of the Full Code Test.

The Code clarifies the timing of a charging decision either after all reasonable lines of enquiry have been pursued or prior to the investigation being completed, if the prosecutor is satisfied that any further evidence/material is unlikely to affect the application of the Full Code Test. The Code also clarifies that a prosecutor must have regard to any failure to pursue an advised reasonable line of inquiry or to comply with a request for information when deciding whether it is appropriate to defer a charging decision or whether the test can be met at all.

The Code revises the Threshold Test and it must only be applied in limited circumstances after a rigorous examination of all the five conditions. Consideration must be given to material that points away from a suspect. Review must be carried out at an earlier date, as soon as the expected further material is received, or in any event before the formal service of the prosecution case.

Disclosure and early stages of a prosecution

Section 3 of the CPIA envisages the possibility that some disclosure may already have been made before the statutory duty to make initial disclosure arises. This early disclosure is known as "common law disclosure", on which detailed guidance is given in R v DPP ex parte Lee [1999] 2 All ER 737. In essence, a prosecutor should consider whether justice and fairness require any immediate disclosure in the particular circumstances of the case.

In all cases, irrespective of anticipated plea, the officer must comply with the common law disclosure obligations and certify that, to the best of the officer's knowledge and belief, no information has been withheld which would assist the accused in the preparation of the defence case, including the making of a bail application. A copy of any material which the investigator considers should be disclosed must be provided to the prosecutor, who will immediately disclose it to the defence if they consider it meets the test. Examples of what should be disclosed are:

• any previous convictions of the victim or a key witness if that information could reasonably be expected to assist the accused when applying for bail;
• material which might enable an accused to make an early application to stay the proceedings as an abuse of process;
• material which might enable an accused to make representations about trial venue on a lesser charge; or
• material which would enable an accused to prepare for trial which may be significantly less effective if disclosure is delayed (e.g. names of eyewitnesses whom the prosecution does not intend to use).

This list is not exhaustive and disclosure prior to the statutory duty arising will not exceed the disclosure which would be required under the CPIA.

The investigator or disclosure officer must also reveal to the prosecutor any material that is relevant to sentence (for example, information which might mitigate the seriousness of the offence or assist the accused in laying some blame upon a co-accused or another).

Appeals

The duty of disclosure continues as long as proceedings remain, whether at first instance or on appeal (Makin [2004] EWCA Crim 1607). (See also section 7 CPIA). While the Court of Appeal in Makin did not purport to lay down any general test to be applied for disclosure on appeal, prosecutors should consider the interests of justice. The defence case should be assessed as that advanced at trial or, if matters are raised on appeal that were not raised during the trial process, as set out in the appellant's draft, or perfected grounds of appeal.

Post-conviction disclosure

The interests of justice will mean that where material comes to light after the conclusion of the proceedings that might cast doubt upon the safety of the conviction, there is a duty to consider disclosure. Any such material should be escalated in accordance with local arrangements. The principle was considered and the importance of finality in criminal proceedings was reaffirmed in Nunn v the Chief Constable of Suffolk Constabulary and the Crown Prosecution Service (Interested Party) [2012] EWHC 1186 Admin.

For general guidance in respect of post-conviction requests for prosecution case papers from third parties or from individuals who have been the subject of criminal proceedings, please refer to the CPS legal guidance Disclosure of Material to Third Parties under the heading Post Conviction Disclosure.