The last four issues of the Criminal Practitioners Newsletter have featured articles on disclosure and the Gazette has published articles about disclosure (see Gazette [1996] 24 July 28 and [1997] 19 March 37).The new provisions apply to offences into which no criminal investigation was begun before 1 April 1997.

This will include an alleged offence committed before 1 April where a criminal investigation had not begun until on or after that day, for example because the alleged offence was not reported to the police.If the alleged offence was committed after 1 April but the investigation had begun before that date (for example, the police may have been keeping premises or individuals under observation) the existing common law rules continue to operate.

These transitional arrangements also apply to the new procedure for contested committals.For primary disclosure the prosecutor is required to disclose to the accused, material which in the opinion of the prosecutor might undermine (ie have an adverse effect on the strength of) the prosecution case, or else to give the accused a written statement that no such material exists.

This applies where a person pleads not guilty to a summary or either-way offence in a magistrates' court or youth court, or the case is sent for trial to the Crown Court.

At the same time, the prosecutor is required to provide the accused with a schedule of all the non-sensitive unused prosecution material.The prosecutor is not required to disclose any material which assists the accused's case until the accused has given a written statement of the defence.

If the defence is disclosed to the police during the initial investigation, the prosecutor should disclose any material which might assist that defence, as part of primary disclosure.Providing that the prosecutor has made primary prosecution disclosure, the accused may, if the case is to be tried summarily and the plea is not guilty, and must, if the case is sent for trial to the Crown Court, give a written defence statement.

It must set out the nature of the accused's defence in general terms; the matters on which the accused takes issue with the prosecution, and the reason why the accused takes issue with the prosecution in respect of each matter.The range of issues for the defence solicitor to consider, surrounding the giving of a defence statement, were dealt with in detail in the article 'Criminal law: new disclosure provisions' (see [1997] Gazette, 19 March, 37).The court -- or with leave, any other party -- may comment and the court or jury may draw inferences if the accused:-- fails to give the prosecutor a defence statement in a Crown Court case-- gives it late-- sets out inconsistent defences in it-- puts forward a defence at trial which differs from any defence set out in the statement-- or adduces evidence of an alibi or calls an alibi witness at trial without having given particulars of it in the defence statement.The defence statement must be given to the prosecutor and the court within 14 days of the prosecutor complying w ith the duty to make primary disclosure.

This period can be extended by the court.

An application for an extension must:-- be made in writing-- be served at the same time on the court and the prosecutor-- state that the accused believes, on reasonable grounds, that it is not possible to give a defence statement within this period-- specify the grounds for so believing and specify the number of days by which the accused wishes the period to be extended.The prosecutor may make written representations about the application to the court within a further 14 days.

The judge may determine the application without a hearing.

If there is a hearing, it will be inter partes, with the prosecutor and accused able to make representations.

A copy of an order made by the court will be served on the prosecutor and the applicant.The reward for giving a defence statement is that it requires the prosecutor to make secondary disclosure of unused material which might be reasonably expected to assist the defence set out in the statement.

The government is not at present setting time limits for prosecution primary or secondary disclosure.

Instead, the prosecutor must act as soon as is reasonably practicable after the accused pleads not guilty, is committed for trial or the proceedings are transferred (primary disclosure), or the accused has given a defence statement (secondary disclosure).If the accused has given a defence statement to the prosecutor and the prosecutor has made secondary prosecution disclosure or failed to do so and the prosecutor refuses a request by the accused for further prosecution disclosure, the accused can apply to the court.

The application must be in writing and be served on the court and the prosecutor at the same time.

It must specify the material to which it relates, that the material has not been disclosed, the date when it was served on the prosecutor and the reason why the material might be expected to assist the accused's defence as disclosed by the defence statement.The prosecutor is then required to give notice to the court stating either that the prosecutor wishes to make representations concerning the material and what the substance of those representations are, or that the prosecutor is willing to disclose the material.

The court can determine the application with or without a hearing.When a hearing takes place, it will be inter partes with the prosecutor and the accused entitled to make representations, but the prosecutor may be given leave to make representations in the absence of the accused and the accused's legal representative.

A copy of an order made by the court will be served on the accused and the prosecutor.Preliminary hearings will be introduced on 15 April.

A date is yet to be set for the requirement that an applicant for a witness summons in the Crown Court must now satisfy the court, when issuing the application, that the person summonsed:-- is likely to be able to give evidence likely to be material evidence-- or is likely to be able to produce a document or thing likely to be material evidence-- will not attend to give evidence or produce the document or thing voluntarily.The application will also have to be made as soon as is reasonably practicable after the case has been sent for trial.