Criminal lawBy Anthony Edwards, TV Edwards, LondonDisclosureThe Attorney-General has issued new guidance on the prosecution's obligations to disclose material in criminal trials.The guidance emphasis that investigators should always err on the side of recording and retaining material where they have any doubt as to whether it may be relevant.

Importantly it makes clear that disclosure officers should never have a conflict of interest in that role and should not therefore, for instance, be the victim of the alleged crime.In cases where a large volume of material has been seized but not inspected by the prosecution, that fact must be brought to the attention of the defence at the primary stage and permission granted to the defence to inspect the relevant material.

A section 9 statement should describe the general category of the material and justify its non-examination by the Crown.All descriptions in the schedule must be clear and accurate and contain a summary of the contents of any retained material.

Prosecutors are reminded of the need to review schedules prepared by disclosure officers and to be alert to the possibility that material may exist which has not been revealed.

They must be persistent in their enquiries.

Where the prosecutor or disclosure officer believes that the material might undermine the prosecution case or assist the defence case, prosecutors must always inspect, view or listen to the material and satisfy themselves that the prosecution can properly be continued.

Prosecutors shouldContinued on page 38Continued from page 37resolve any doubt they may have in favour of disclosure.Prosecutors should not adduce evidence of the contents of a defence statement other than in the circumstances envisaged by section 11 of the Act or to rebut alibi evidence.

However, they are advised that where a defence statement points the prosecution to other lines of enquiry, further investigation is possible and evidence obtained as a result of the enquiry may be used as part of the prosecution case or to rebut the defence.

Defence solicitors will therefore have to continue to warn clients to exercise caution in the drafting of defence statements while advising that greater detail may result in more disclosure at the secondary stage.The guidance suggests that defence solicitors should ensure that defence statements are signed by the accused.

Solicitors will need to consider whether this advice is in the best interest of individual clients.

Each should be advised as to the advantages and disadvantages of such action.

A failure to sign may be the subject of comment by a judge but the signature to a statement may commit the defendant to a more precise statement of detail (or lack of it) than he or she may think advantageous (see R v Tibbs (2000) The Times, 28 February and R v Wheeler (2000) The Times, 7 July).

The final decision is for the client not solicitor to make.There is important guidance that the crown should take reasonable steps to identify relevant material in the hands of government or Crown bodies.

With material held by other agencies (ie local authorities) the prosecution is advised to give careful consideration as to whether it is appropriate to seek access to such material.

Officers are reminded that information which comes to their knowledge as a result of liaison with third parties should be recorded by them and so become available for disclosure.

(for example relevant material revealed in discussions at a child protection conference.)The guidance continues to give effect to the decision of the Divisional Court in R v DPP, ex parte Lee [1999] 2 Cr App R 304 that significant information which may affect a bail decision or enable the defence to contest committal proceedings should be disclosed.

It is made clear that decisions on such issues will be assisted by information made available by the defence to the Crown.The guidance indicates that material can be considered potentially to undermine the prosecution case if it has an adverse affect on the strength of the prosecution case.

This will include anything that tends to show a fact inconsistent with the elements of the case that must be proved by the prosecution.

Material can have an adverse affect when it may be used in cross examination or by suggesting submissions leading to the exclusion of evidence or to a stay of proceedings.

Any material that might support a defence, that is either raised by the defence or apparent from the prosecution papers should be made known at this stage; even though it suggests a defence inconsistent or alternative to that advanced by the defence.The Attorney-General emphasises that a comprehensive defence statement will assist in the disclosure of secondary material.

The guidance now contains a list of relevant documents but the Crown will only disclose these if reasons are given in the defence statement specifically linking the material to the defence.It is confirmed that in addition to obligations in relation to unused material the Crown must make available to the defence all evidence on which it proposes to rely at a summary trial, in sufficient time for the defence properly to consider the evidence before it is called.

Exceptionally, only may statements be withheld for the protection of witnesses or to avoid interference with the course of justice.The guidance helpfully advises that material relevant to sentence should be disclosed.LINKS: www.lslo.gov.uk