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Duty of Disclosure: Can The Police or Prosecution Hold Anything Back?

Proper disclosure is essential for a fair trial. The BBC have previously reported on trials collapsing as a result of the prosecution unjustly withholding disclosure.

What do the police have to tell me?

At the point of your arrest, the police must:

  1. Identify themselves
  2. Tell you that you’re being arrested
  3. Explain what crime they think you have committed
  4. Why it is necessary to arrest you

The police do not have to disclose the entirety of their investigation before you are interviewed. However they must provide sufficient information to enable you to understand the nature of the offence, and why you are suspected of committing it. This information is often extremely limited. A benefit of having a solicitor present at the police station is that they may be able to persuade the police to disclose additional information.

What do the prosecution have to tell me before I am in Court?

If you are charged, you will be given a court date for your ‘first appearance’. If you have a solicitor, they may be able to request your prosecution papers in advance of your hearing.

The prosecution are only required to provide sufficient information at this stage for you to make an ‘informed plea’. This includes:

  1. A summary of the offence
  2. Any account you provided in interview
  3. Your criminal record
  4. If available, any witness statements or exhibits that the prosecution consider material to your plea.

What do the prosecution have to tell me before my trial?

Once your case has been sent for trial the prosecution have a duty to disclose material which might reasonably be considered capable of undermining the prosecution case, or assisting the defence case. This is a continuous duty throughout trial proceedings.

At the first appearance, the court will direct the prosecution to meet this duty by a set date. This does not prevent the prosecution from serving further evidence throughout the case.

The prosecution must serve a ‘schedule of unused material’ detailing all of the material which they do not intend to rely on. In some cases this material may assist the defence. For example, it may be that a prosecution witness has previous convictions, which would help the defence challenge the reliability of their evidence. The prosecution may retain sensitive material which could prejudice an important public interest.

What if the police or prosecution breach their duty of disclosure?

The defence can identify relevant disclosure requests using the defence statement.

If the prosecution dispute the request, the defence can make an application under section 8 of the Criminal Procedure and Investigations Act 1996. This seeks to persuade the court why the disclosure is relevant and how it could undermine the prosecution case or assist the defence case.

If the prosecution fail to meet their duty of disclosure the defence can make an application under s78 PACE (Police and Criminal Evidence Act 1984). This application seeks to prevent the prosecution evidence being relied upon as it would have an adverse effect on the fairness of proceedings. Alternatively the defence can make an argument to stay (halt) proceedings on the basis the prosecutions failure is an abuse of process.

It is always important to challenge and check disclosure. The prosecution have discontinued proceedings when the defence questioned why CCTV, which would clearly have assisted the defence case, was not obtained by the police. Serious breaches of procedure rules can be revealed by disclosure requests. In one instance, a request revealed conversations between the prosecution witnesses which would have interfered with the defendant’s right to a fair trial.

If the prosecution and police do not comply with disclosure rules and a solicitor is not upholding your rights you may be unfairly convicted.

If you would like advice or representation for a criminal matter please contact one of our specialist criminal solicitors who will be able to assist. You can contact them on 0330 822 3451 or request a call back online.