Disclosure and Unused Material
The statutory scheme
The CPIA 1996 imposes a continuing duty. Under s.3 the prosecutor must disclose material that might reasonably be expected to undermine the prosecution case. Under s.5, once a defence statement is served, the prosecutor must disclose material not previously disclosed which might reasonably be expected to assist the defence. The duty is supported by the Code of Practice under s.23 and the Attorney General's Guidelines, and by the investigator's obligation to pursue all reasonable lines of inquiry, including those pointing away from the suspect.
Unused material
Unused material is catalogued by the disclosure officer: non-sensitive material on the MG6C, sensitive material on the MG6D, with a disclosure officer's report. 'Sensitive' means material whose disclosure would damage a public interest (informants, undercover officers, national security); it does not mean unhelpful. Where public interest immunity is asserted, the court may hear the application ex parte and may appoint special counsel.
Defence obligations and sanctions
In the Crown Court a defence statement is compulsory (s.6) within 28 days of initial disclosure. Section 6A prescribes its contents: the nature of the defence, the matters of fact on which the defence takes issue with the prosecution, points of law, and alibi particulars. Sections 6B and 6C require updating and notification of intention to call defence witnesses. In the magistrates' court the statement is voluntary. Failure to comply permits the court to comment and the jury to draw inferences (s.11). Applications for specific disclosure are made under s.8.
Trap: assuming disclosure is confined to admissible evidence. A witness's previous convictions, or a custody record showing a Code C breach, may be inadmissible yet still undermine the case. Rule of thumb: if an officer or witness made it, saw it or kept it, ask what it does to the strength of the prosecution case.