Being proactive during the stages:
Practical steps to take when it comes to disclosure and obtaining unused material between stages 1 and 4.
Back to basics
1. Time for service of prosecution evidence is 70 days (non-custody) and 50 days (custody) from date of sending [CDA 1998 (Service of Prosecution Evidence) Regulations 2005 (SI 2005/902) regs. 2-6).
2. Whilst a judge can extend or further extend time for service (including after the expiry of the period for service) such applications should be scrutinised, and objection lodged.
3. Initial or statutory disclosure (previously known as primary disclosure) pursuant to s.3 CPIA 1996 is the trigger for a defence statement but will not apply unless the evidence has been served as per paragraph 1 of Schedule 3 CDA 1996.
4. Assuming service of case and initial disclosure, the relevant period for section 5 (service of DS) and section 6C (notice of any defence witnesses) is 28 days beginning with the day the prosecution comply or purport to comply with initial disclosure.
5. The stage dates given at PTPH should reflect the statutory provisions if they do not do this scrutinise why not. Statute still trumps case management although not all judges it would seem share this view.
Prior to stage 1
6. If D has raised specific issues in interview (e.g., material on social media, or CCTV or where there may be social service or other third-party involvement) reiterate these in a short letter to CPS which should seek to be engaging and helpful and is likely to be used later on when the prosecution do nothing.
Whilst we appreciate that you have yet to serve your evidence or complete with initial disclosure, we thought given matters raised in interview, it may assist if we set out in broad terms those areas where we anticipate disclosure enquiries needing to be made:
a. Enquiries relating to entries on Facebook and in particular messages or messages from X to Y.
b. Social Service involvement with the family and in particular the circumstances and decision to return X to the care of her father.
Disclosure Management Documents (DMD)
8. It is important to understand that whilst the defence should be engaged and cooperative when it comes to identifying lines of enquiry and disclosure issues, the responsibility for disclosure still falls on the prosecution.
9. There should be a response to the DMD, particularly if there are issues with the approach or scope of the approach.
1. A Disclosure Management Document (DMD) has been provided for case T202171xxxx/ URN 32D9020xxxx.
2. Electronic material: The prosecution’s focus on the issue of there being no suggestion of any sexualised chat before or after the alleged incidents, is too narrow. It is submitted that a comprehensive review of the complainant’s messages on telephones and social media is proportionate. What they may have said to others by the complainant about the defendant before and after the incidents is arguably relevant to the issues.
3. Third party material: The defence are not aware of any other third-party sources relating to XX and now await disclosure arising from those sources identified. In respect of XX it is apparent that she has had some form of ‘therapy’ and clearly the nature of this therapy and what was said in the course of it, must be a reasonable line of enquiry.
Between Stages 1 and 2
10. Application by prosecution for extension of time to serve papers: It is increasingly common to see, often on the day the papers were due to be served, a one-line email from the CPS to the court requesting an extension. It is also not unusual to see the court’s reply granting the application within about 20 min of the email from the CPS and before the defence have had any chance to make any representations.
11. Often the defence do not respond, firstly because the application has already been granted but also because pragmatism and experience dictates that even if it has not, the application will be granted. In most cases, an objection should be lodged. The purpose is not to prevent the extension but to have something in the armoury later on when there are further delays or late service of material.
1. Look carefully at the reason given for the request. Reasons to do with the “OIC being on annual leave” or “due to staff illness” should not just be accepted as satisfactory.
2. Consider the nature of the case, what was put to the defendant in i/v to show that the material must be available.
3. Point out that the statutory timeframe for service of the papers – did the prosecution get longer than the statutory framework permits for stage 1 recognising the problems?
4. If the court has dealt with the application without a reasonable opportunity for you to have made representations put that on the record, for example:
As you are aware the papers on which the prosecution rely were due to be served today. At the PTPH the prosecution were given 12 weeks instead of the statutory 10 weeks to serve the evidence having regard to the telephone evidence and it being anticipated that this may take some time to obtain. At 09.05am we note the CPS sent an email to the court requesting an extension of two weeks. The reasons cited are simply “due to staff shortages.” We also note that at 10.17am the court granted the application. As you will appreciate the time between the application and the granting of it was very short and did not give us any time to make representations. Statute makes it very clear the maximum time period in which the prosecution is expected to serve the case when a defendant is in custody. This time period was already extended by two weeks at the PTPH and has been further extended again without any scrutiny as to the circumstances for the delay. This is not an extension we would have agreed to but given it has been granted without hearing from the defence we now seek an amendment to the date for compliance with stage 2.
We had a conference arranged with Mr X on but due to the failure of the prosecution to provide the evidence as directed, this will now need to be rescheduled. Given the difficulty of arranging face-to-face conferences at HMP X, we are unlikely to be able to see Mr X before XX which means we will inevitably not be in a position to take full instructions on the evidence until at least the week of X. We therefore seek until X for the service of the Defence Statement and notification of prosecution witnesses.
12. Prosecution purport to serve papers but they lack essential evidence: It is becoming increasingly apparent that although the prosecution purport to serve the case, the “evidence on which the charge or charges are based” is often not included. For example, essential medical evidence in a s.18 case; an ABE of the complainant’s evidence in a rape case; computer/telephone evidence in a child-sex pornography case etc.
At the PTPH the prosecution was directed to serve the case papers (stage 1) by X. Although they have purported to have done this (the evidence was uploaded onto the DCS on Y) the evidence does not include any medical evidence. Given the defendant is charged with an offence of causing GBH contrary to s. 18 OAPA 1861, the medical evidence is essential to the charge. We therefore take the view the prosecution has not acted in accordance with the Regulations and has not served the “evidence on which the charge is based” and as such the obligation to serve a Defence Statement is not triggered. We also give notice that an application to dismiss the charge will now be lodged.
We note the letter from the CPS dated X advising the court that we have not served a defence statement on behalf of Mr X. Whilst this is correct, in our view a defence statement is not yet due. Although at the PTPH the court directed stage 1 to be completed by X and stage 2 by Y, and although the prosecution purported to serve their case on Z, the papers did not and still do not include the essential evidence on which the charge is based. Accordingly, the requirement for a defence statement is not yet triggered as per s.5 (3A) CPIA 1996). Indeed, given the absence of the key evidence we intend to make an application to dismiss.
13. Having received the evidence AND initial (s.3) disclosure, stage 2 will be the service of the defence statement.
14. Remember the purpose of a defence statement:
a. To assist the court and prosecution to as to the defence and issues.
b. To trigger disclosure of material that may assist the defence.
15. Defence Statements should comply with s.6A(1) (a)-(d) CPIA 1996. NB: These sections do not include a section for ‘disclosure requests.’
16. A defence statement does not need to have in it:
a. Anything to the effect that it only addressed the evidence served so far.
b. That you reserve the right to serve another one.
c. Questions to do with the prosecution’s duties of disclosure.
d. A list of disclosure requests.
17. If a list of disclosure requests are to be provided rather than include them as part of the defence statement either send them in a separate document or include them at the end of the defence statement (after the defendant’s signature) and preface the list with something like:
“To assist the prosecution to identify material which may be relevant to the defence case, we have set out the following items below:
1. Information relating to the previous conviction of the witness X for perverting the course of justice in 1990.
2. Copies of all first or subsequent accounts by the complainant, in particular accounts as may have been recorded in PNB, medical examination notes, the records of the ‘rape support worker’ who the complainant called and spoke to before her examination [etc.]
3. Copies of the therapy notes from sessions undertaken by the complainant between 1990-1993 (when the abuse is said to have occurred) where the complainant:
a. Mentions the alleged abuse or if she does not mention the abuse confirmation of this.
b. Is referring to the defendant or to her life more generally at home.
c. The sorts of topics the complainant was talking about.
Stage 3 and 4
Tip: Think about the items that may form your list of topics or items and try to get this prepared as soon as possible.
18. The prosecution will in most cases, not properly address disclosure. On receipt of what is usually an inadequate response, send a short letter drawing attention to the defence statement and to the matters specifically raised (either at the end of the DS, in a response to the DMD or in separate correspondence) and asking for the matters to be addressed.
19. Unless there is a satisfactory response – serve a s.8 application for specific disclosure. If you have requested items early on in a pre-stage letter, included items in the response to DMD and set then out at stage 2, and further requested them in correspondence following stage 3, this will help any application.
20. Once a s.8 application has been served, the prosecution has 10 days to respond. If they do not respond, ask for the court to determine the application / request a hearing pointing out that the prosecution has not responded within the prescribed time.
Why is all this necessary?
21. Late service of evidence and non or late disclosure puts undue pressure on the defence. No matter how poorly the prosecution has acted, it is not unusual for judge’s to turn the responsibility on the defence:
“Why didn’t you ask for this?”
“When did you first ask for this?”
“What has your instructing solicitor done to notify the court of this issue?”
“Why wasn’t this covered in the response to the DMD?”
These steps are all about making it difficult for judges to do this and forcing both the prosecution and the court to adhere to statutory provisions.