Third-party social services records and specific disclosure
D is charged with sexual assault of a 15-year-old complainant. The prosecution serves an unused material schedule but redacts social services records showing the complainant made two earlier complaints of assault against different men, both withdrawn. The defence learns of the records from the complainant's former foster carer. The prosecution says the records are held by the local authority and are sensitive. The defence requests specific disclosure under CPIA 1996 s.8. The trial is listed in six weeks. The judge is asked to decide the application. The records may contain the complainant's account of the earlier incidents and her reasons for withdrawal.
1. Apply the CPIA disclosure test to the social services records and advise whether they should be disclosed.
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Test. Under CPIA 1996 s.3, the prosecution must disclose material that might reasonably be considered capable of undermining the prosecution case or assisting the defence. The social services records are potentially relevant because previous withdrawn complaints may affect the complainant's credibility and the reliability of her account. They are not automatically disclosable, but the defence can articulate a clear line of inquiry.
Third-party material. The records are held by the local authority, but the prosecution must pursue reasonable lines of inquiry. The court can inspect the records and order disclosure of relevant extracts, with redactions to protect privacy and any sensitive material. The judge should balance the complainant's Article 8 rights against the defendant's right to a fair trial. Disclosure of the relevant passages is likely; wholesale disclosure is not.
2. What procedural steps should the defence take and what remedies exist if disclosure is refused?
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Procedure. The defence should make a written application under s.8, identifying the material and explaining why it meets the s.3 test. The court can order production and, if necessary, hold an ex parte hearing to consider public interest immunity. The local authority may be ordered to produce the records to the court.
Remedies. If disclosure is refused and the trial would be unfair, the defence can apply for a stay as an abuse of process. The judge may also make adverse comments or, in an extreme case, exclude prosecution evidence. A witness summons against the local authority is another route. The defence should preserve the point for appeal if convicted.