Failure to serve initial disclosure in the Magistrates’ Court

Summary

I recently had conduct of a driving without due care and attention case (careless driving) where my client had pleaded not guilty and was due to stand trial. In this case, the prosecution failed to comply with their duty to serve initial disclosure, though I had made a number of requests for this material before the trial. On the day of our client’s trial, the prosecution made an application to vacate the trial to allow them time to comply with this duty. The magistrates refused the application noting that the prosecution were required to serve initial disclosure, but they had not. In the circumstances, the prosecution had no alternative but to offer no evidence, which resulted in the case against my client being dismissed.

When does the duty of disclosure arise?

In most cases, when a defendant pleads not guilty to an offence in the Magistrates’ Court, the Criminal Procedure and Investigations Act 1996 (CPIA) provides that the prosecution must comply with their duty to serve initial disclosure. This duty does not arise where a defendant has pleaded guilty or their case does not proceed to a summary trial.

Section 3 of the CPIA provides that initial disclosure must be complied with by the time limit set out in section 12; however, section 12 does not expressly set a time limit, only that the relevant period is a period beginning and ending with such days as the Secretary of State prescribes by regulations.

The Magistrates’ Court Protocol provides that the standard directions require 28 days for service of initial disclosure following a not guilty plea before going on to say that, in most cases, a competent advocate can deal with late served material on the day of the trial if the court allows time before the trial commences or even during the course of a trial. Therefore, even though the Protocol provides that disclosure should be served within 28 days, this can be served late and defence advocates will be required to deal with this when it arises.

What is initial disclosure?

Section 3 of the CPIA provides that in order to comply with their duty of initial disclosure, the Prosecution must (a) disclose to the defendant any prosecution material which has not yet previously been disclosed to the defendant which might reasonably be considered capable of undermining the case for the prosecution against the defendant or of assisting the case for the defendant or (b) give to the defendant a written statement that there is no material of a description mentioned in paragraph (a).

Section 3(2) of the CPIA provides that “material” is material that (a) is in the prosecution’s possession, and came into their possession in connection with the case for the prosecution against the defendant, or (b) which, in pursuance of a code operative under Part II, they have inspected in connection with the case for the prosecution against the defendant.

What happens if the prosecution does not comply with their duty of disclosure?

The requirement to serve initial disclosure is to ensure that the proceedings against a defendant remain fair, so it is important that where the prosecution is in possession of material that may hinder their case or support the defendant’s case, it is served.

In practice, when the prosecution does not comply with their duty of disclosure, it is important that the defence makes efforts to obtain this material from the prosecution in the event that the prosecution later seeks to adjourn the trial to allow time for service of initial disclosure. In these circumstances, the Magistrates’ Court will not only consider the efforts made by the prosecution to obtain initial disclosure, but also the efforts of the defence to seek initial disclosure. If no efforts have been made by the defence to seek this material prior to the trial, this will likely to go against them, particularly where the prosecution has made efforts to obtain the material.

By virtue of section 3 of the CPIA, the prosecution must comply with their duty of disclosure and a failure to do so may lead to them having no option but to offer no evidence if they cannot comply with that duty on the day of trial, or they cannot make a successful application to adjourn the trial allowing them extra time to comply with this duty.

A summary trial should not proceed if the prosecution has not complied with their duty to serve initial disclosure.