Disclosure is a Two Way Street: Ask and You Shall Receive

Jo Morris and Libby Anderson, Charter Chambers

The disclosure practices of the Crown Prosecution Service have recently fallen under scrutiny. There has been spotlight upon cases where potentially exculpatory material has been withheld from the defence. This may either be the tip of the iceberg or a wild exaggeration of the issues. A small number of disclosure failures does not evince an overall policy but it invites speculation upon how many other similar failures there have been. We can be certain of this; disclosure is a two way street. The Crown is under a duty to disclose material that undermines the case for the prosecution or assists the case for the defence. Failure to do so risks a miscarriage of justice. The Crown’s disclosure duties are only fully engaged if the defence perform their disclosure tasks correctly. Failing to do so places the lay client at risk. Equally the defence have a duty to complain of prosecution disclosure failures before the trial date and take action if resolution cannot be reached.

Disclosure duties are not something that should take either side by surprise. They are quite clearly set out at the outset of a criminal trial. The timetable for both parties is set by the judge at PTPH. Once the prosecution have complied with their initial duty to disclose, section 5 of the CPIA 1996 is engaged, requiring the accused to serve a defence statement upon the court and the prosecutor. The accused should be warned by the judge that failure to do so may count against him at trial.

Although the case of R v DPP, ex parte Lee establishes that the CPIA does not release the Crown from their common law duties of disclosure, it is the service of the defence statement that triggers the process of review, investigation, disclosure by the Crown of any further material. The common law duty of disclosure is to act “fairly” (Nunn [2012] EWHC 1186 (Admin)). The CPIA requires the Crown to consider information raised in the defence statement and disclose in the light of that anything that undermines their case or assists the defence. If the defence fail to present a defence statement at all then the Crown cannot be expected to do that.

Similarly an inadequate defence statement will not prompt statutory disclosure duties and fishing expeditions are deprecated (R v H and C [2004] UKHL 3).

Only an adequate defence statement, setting out the nature of the defence, matters of fact in dispute, points of law raised and disclosing the details of any alibi witnesses, can maximise disclosure. It is understood that this places a burden upon the defence. The preparation of a defence statement requires active communication with the lay client. Obtaining the cooperation of a defendant who has either absconded or refuses to address the evidence against him can be challenging. However, it is essential that this is done correctly. The Crown cannot determine what undermines their case or assists the defence unless they know the nature of the defence.

Late service of a defence statement does put the defendant at risk of inferences under section 11(5) CPIA 1996. Nevertheless, the Crown cannot use this as an excuse for non-disclosure of material upon which they rely. The defence may also amend an inadequate defence statement. However, the defence should be aware that late compliance may delay disclosure by the Crown, which in turn may jeopardise the trial date. In the most extreme cases, where a trial has been adjourned, witnesses inconvenienced, and substantial additional costs have been incurred, the court may consider wasted costs against the defence.

There are circumstances where taking the decision not to serve a defence statement is good service to the lay client. For instance, a defendant who has given guilty instructions but refuses to plead guilty cannot serve a defence statement. Equally though, where there is suspicion that a defendant may be unfit to plead it would be folly to serve a defence statement as it may not be reliable. Or indeed, a defendant who faces weak evidence but offers an incredible account may be better served by not presenting a defence statement. However, this decision involves a judgement call where risk is balanced against gain. It is a calculated risk which arises from an entirely different place to a simple failure to serve a defence statement.

Even when a properly written defence statement is served and there is no response from the Crown, the defence should not be idle. Section 8(2) CPIA 1996 sets down that a defendant “may” apply to the court for an order seeking disclosure. Although that does not place a duty upon the defence to take this action, Rule 1.1(e) of the CPR places a duty upon both parties to deal “with the case efficiently and expeditiously”. A failure to complain about non-disclosure until the morning of trial might be criticised by the Judge as much as a failure by the Crown to disclose.

Often silence shows good judgement. If the defence wish to receive disclosure, silence serves no purpose. The Crown have a statutory duty to disclose information in their possession that meets the disclosure test unless it is covered by public interest immunity. That duty is only engaged when the defence comply with their obligations. Even if the Crown failed to respond to the disclosure requests of the defence, the defence should not be deterred. Persistent requests for disclosure made by the defence over many months can have a great impact upon the outcome of the trial. It is the most tenacious and determined advocate that secures the fullest disclosure.