FAQs on disclosure in criminal prosecutions of sexual offences.
How do you make sure you get full disclosure in a sexual offences case?
Basic legal position regarding disclosure.
In a criminal trial the prosecution are obliged, in advance of a trial, to disclose the evidence which they want to rely on in court i.e. witness statements and exhibits.
The prosecution are also obliged to serve material obtained as part of the investigation which they may not be relying on but which might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case of the accused. Lawyers will often refer to this as the unused material (because it is unused by the prosecution in their case).
The police may have such material in their possession because they are obliged to work according to codes of practice which include an obligation to pursue all reasonable lines of enquiry when investigating a case. This means they can uncover material, which might help them but of course might not and could help the accused.
Will everything the police and CPS have be disclosed?
If the prosecution have material, which in their view doesn’t undermine their case or assist the accused, they are not obliged to disclose it. What is disclosable comes down to the prosecutor’s judgement on what they think the accused’s case is. Prosecutors are also only expected to consider the disclosure test in light of information they have available to them at the time they make the decision.
The basic legal principle is, if the police have uncovered material from their investigation that might help the defendant’s case, it should be disclosed. If in their view it does not, they do not have to disclose it.
What if there is material that could assist the defendant but the police don’t have it in their possession?
If the police believe material is in the possession of someone else or another agency and is relevant to their investigation, they should ask that person or agency to retain it and then they should request it.
Typically such third parties might be doctors, the local council for CCTV (or a private company) or social services. Third party material is often requested in sexual offences matters because when the allegations are made other agencies (social services, family courts, doctors, hospitals) can become involved.
This is not an easy area to navigate, other agencies are not always under obligations to provide the material they have and in fact family court proceedings are confidential and the details are not to be shared unless the court agrees.
Although there can be hurdles to obtaining this material, if it’s relevant, the police have to pursue these line of enquiry and where appropriate court orders can be obtained to ensure the material is shared with the investigators.
In practice how does disclosure work?
Once a person has been charged there is a timetable that has to be followed regarding service of the evidence. The prosecutor will (in accordance with the timetable) serve a letter on the defence complying with their obligation to notify them of any unused material. They will usually serve a schedule of non-sensitive unused material which will contain a list of the material gathered, either with comments that the items do not meet the disclosure test or that they do and copies/ extracts or an invitation to come and consider the material will be enclosed.
The schedule of material is called “non-sensitive” because there is in fact be another schedule for sensitive material. This is a schedule the defence will not be provided and will not know about because the nature of the material is deemed sensitive.
What is sensitive material?
Should such a schedule exist it will have been prepared by the police and they will detail on it the items and reasons why they think the material is sensitive. The prosecutor will consider the schedule and material. If they conclude any of the material meets the disclosure test they may try and deal with this by disclosing redacted copies of the evidence or summaries to the defence in order to protect the information that is sensitive.
If the prosecutor takes the view that the material is disclosable but is so sensitive it should not be given to the defence because there is a real risk of serious prejudice to an important public interest they would need to make an application to the court to prevent disclosure. Public Interest Immunity (PII) applications don’t occur often but can happen in sexual offences case, for instance if they involve child witnesses or in large sex trafficking prosecutions there could be police intelligence that needs to be protected.
What can you do to make sure the police follow those lines of enquiry that could help push for disclosure which could assist?
Defence lawyers need to consider raising issues of material the police should try and obtain at early stages, including during police interview or during the investigation particularly in relation to CCTV as this can often be erased quickly.
When a person is charged with a criminal offence, engagement with the CPS is crucial. There comes a point when the defendant, if awaiting trial, is to set out what the nature of their defence is. In the Crown Court it is obligatory to provide a defence statement.
This is a formal document setting out those facts you take issue with and those you rely on. It is also an opportunity to trigger further disclosure and to ask direct questions about unused material.
The disclosure obligations of the prosecutor are ongoing, which means a prosecutor must keep such material under constant review and should review it in light of anything put in the defence statement. Something that wasn’t considered disclosable could easily become disclosable at a later stage.
What sort of things would you ask for in a sexual offences case?
Every case is different so judgement and experience by the lawyers is required. Disclosure issues could involve statements taken from witnesses which are not relied on by the prosecutor at trial but might assist the defence, social service records, family court proceeding records, counselling notes, any rape/sexual assault referral centre records, CCTV (if relevant), previous convictions or any previous involvement in criminal proceedings by prosecution witnesses, medical records, phone records between the complainant and defendant, emails, social media information, computer records etc. The list could go on.
If the Crown won’t disclose the material? How do you get it?
Simply because you have asked for material from the prosecution, doesn’t mean you will be served it.
If after service of a defence statement the prosecutor still refuses to serve material (which is believed to be in their possession, or should have been in their possession) because it doesn’t meet the disclosure test, the defence can make an application to the court to seek its disclosure and it will be a matter for a judge to decide.
But of course, all of this is based on the fact you know the material exists or suspect that it does. The disclosure protocols are there to ensure the case is investigated and prosecuted fairly. The police after all have far reaching powers and the ability to obtain information that private citizens do not have.
Defence lawyers should be proactive in trying to gather evidence which can assist their client’s case. There will often be lines of enquiry they can follow up and the court will expect them to do so.
The laws and codes in place are drafted so that a defendant has a fair trial. It would seem the recently discovered disclosure problems lie in the fact that those who have been responsible for adhering to these codes, i.e. the Police and CPS, have not fully understood their obligations or interpreted their duties very narrowly.
The right to a fair trial is crucial. It also has to be acknowledged that for anyone who has reported a crime, it could be a terrifying experience to face a process whereby your past and entire private life is scrutinised and then given to the person who has already violated your privacy. But the system has to balance a person’s privacy and another’s right to a fair trial. Investigations by police shouldn’t be speculative and the CPS, whilst being expected to not shirk in their duties of disclosure, are not expected to simply hand everything to the defence without scrutiny.