CIPA Disclosure in Practice

welcome to data laws. Presentation on the crown on the application of the DPP vs Manchester and Salford Magistrates cooled. This presentation is all about how the Criminal Procedure and Investigations Act works in practice. It's topical because there's a lot of confusion about the legislation on both side of the prosecution and defense, and as the case we're going to look at shows. There's also confusion on the part of the courts. Then, of course, there are all sorts of issues with how disclosure is conducted by the police. But what we're going to look up here? It is the framework of the CP I What disclosure can be ordered. What will not be ordered on how that decisions reached that. The citation for this case is 2000 and 17. England and Wales High Court 17 0 wait admin in due course. No doubt it will become a reported case, but that's the neutral citation. What we're looking at here are two conjoined appeals dealing with excess alcohol trials that originated in Manchester. Both defendants were independent of each other. Both were running the defense that they hadn't drunk enough for the in talks ELISA reading to be correct. That meant, in turn, that the in toxin Isar reading must have been flawed. And if the reading was flawed, the court couldn't be satisfied so that it was sure that at the time of driving, either of the respondents to this appeal was, in fact, over the prescribed limit. This is a common defence used in excess alcohol cases, and it very often relies upon a large amount of disclosure to defense experts. Quite often, the prosecution can't cope with the requests that are made. Things go wrong, they're not troll ready. And then the court refuses in a German, compelling them to offer no evidence as a result of being buffeted on numerous occasions in these circumstances, the prosecution decided to appeal against the decision of district judge happened at Manchester Magistrates Court when he ordered partial disclosure in both these cases. So back to the facts. Both of the defendants in the Magistrates Court trial wanted to get expert evidence from well known defense expert Dr Monday on other colleagues to show that the in toxin Leiser must have been unreliable. That's what the crux of the defense depended on, so both sets of solicitors sort disclosure of our news material, which they argued would include that in toxin Isar results, printouts from the last 300 occasions and other documents. They said that without those documents, they couldn't fully instruct Doctor Monday and the other expert and so those documents must firstly be unused material under the C p A. And secondly, must either be undermining or assisting within Section three of the C P I A. Because of their capacity to inform the defense expert. The judge partially agreed. He ordered disclosure, and that's when the prosecution appealed. It's not normal to appeal on an interlocutory basis from the Magistrates Court. In these circumstances, the high court prepared to entertain the appeal. So initially, in the case of the respondent White, the CPS said that the DCs the defense case statement, was inadequate. As a response, Thes listers redrafted it on. Then the CPS said it's compliant, but the material is not unused material within the CPI. I nor was the material reasonably viewed, capable of undermining the prosecution case or assisting that of the defense. Within Section three, White counted by making a Section eight CP I application that led the District Judge to grant the application. The other respondent to the high court proceedings was Mr Blakely, and in this case, the expert attended the C P I A hearing so that evidence could be given to the District judge justifying the application. That's a tactic that's worth thinking about in the right cases, because the court hear from the experts mouth what it is that's needed. This was a privately paying case. The money seems to have been a less of a problem than it would be for a legal aid lawyer. Whether or not an expert could be prevailed upon to attend a legally aided CP I application remains to be seen. It didn't help in Blakely's case that the defense left things quite late in the day in the view of the High Court on the police dragged their heels. But again the district judge ordered some partial disclosure. When it got to the high call, the CPS had a statement from Dr Williams. He's an expert in in talks allies Er's He's invented the in toxin Leiser Andi. He is largely responsible for the design of the modern new generation in talks allies Er's important thing to note about the modern in talks allies. Er, is that it self diagnosing? That means that if there's a fault, it either tells you there's a fall or it just doesn't work at all. That means, in due course, the ability to cast out on the in talks. ELISA raising is going to become less significant as a defense because the machine itself will either say that it doesn't work or the defense will not get off the ground. It doesn't appear that Dr Williams and Dr Monday A perhaps the best of friends because Dr Williams, expert report and you can see the gist of it in the judgment from DPP, Manchester set out there was no evidence of unreliability that the machine would have taken other steps to alert the years and that the application for the locks and various other your news material waas, therefore by implication, no going to be a runner because it wasn't going to turn up anything that would assist the defense or undermine the prosecution. The judgment comes from Lord Justice Levinson, who is a big hitter in these procedural matters. Remember that he was looking at the merits of the district judge's decision, not the facts of the case. So let's go back to the c P I. A. Section three. The prosecution must disclose to the accused any prosecution material, which has not previously been disclosed to the accused on which might reasonably be considered capable of undermining the case for the prosecution against the accused off of assisting the case for the accused. If no that neither of those apply, then a written document should be provided to the defense. Setting out there is no such material to disclose. When you're doing a pace interview is a defense lawyer. It pays to look out for documents where those are actually in the interview room. Whether there's reference to documents during the course of the pace interview, see what the officers got by reading upside down. If you're prosecuting again, go through the interview to see if there's anything referred to that might be unused. That's not on the schedule of unused, sensitive or long sensitive. Both parties could look through witness statements. Is there anything referred to there? That's not, in fact, an exhibit that therefore must have fallen into the unused carrying on with Section three of the CPR Nellie. Subsection 32 defines prosecution material, and that's important is the judgment shows. That's material that's in the prosecution's possession. Are you in the possession of the police or the prosecutor? Andi came into his possession in connection with the case for the prosecution against the accused. All it's been inspected in pursuance of a code under part two of the C P I A. In connection with the case against the accused. So let's look at some scenarios. Let's imagine the complainants phone in a harassment case remains in the plate. Complainants possession. The police have never looked at it that not even looked at the screen. It wouldn't fall into the unused material because it's not in the prosecution possession and it hasn't been inspected in accordance with a code operative under Part two. Let's change the scenario. When the police went to see the complainant hell, she showed the police the mobile phone on the police screen printed some of the messages that's either going to become an exhibit or its gains become unused because it's prosecution material which has been inspected in connection with the case for the prosecution against the accused. Even if the police haven't taken away the phone. We also need to look at what constitutes a criminal investigation because for the purposes of Section 14 of the C p. A. It must be a criminal investigation in other words, an investigation conducted by the police or other people with a duty to conduct such an investigation. So perhaps civilian investigators or investigators for a local authority or customs and excise people other than constables. And the purpose of the investigation is to ascertain whether somebody should be charged with an offence or if they have been charged with. They're not that guilty. No, every piece of work by a police officer is going to amount to an investigation because it doesn't fall within that definition. Next, look, let's look more in detail about what prosecution material is. Well, we know under Section 32 that it's got to be in the prosecution's possession in connection with the case against the accused or inspected under a code. But its Section 83 There's a further definition it must fall within subsection full. So imagine you're defending. You're applying for access to the unused. You've got to prove it's a criminal investigation you've got to prove the material is prosecution material, that it's in the prosecutor's possession or being inspected under a code of practice under Part two in connection with the case against this accused by the prosecution on and it falls within 83 or 84 In this case, much of the unused material was in the possession of 1/3 party, the people who manufacturer and service Thean tops ELISA. That is going to be important in a moment because 84 tells us that material falls within this subsection. If in pursuance of a cooperative under part two of the act, the prosecutor must, if he asks for the material, be given a copy of it all, be allowed to inspect it in connection with the case for the prosecution against the unused well, here in lies the problem. Because the records of service of the in toxic Liza were in the possession of line and talks ELISA, the laboratory and the Manufacturers district judge held Levinson had been wrong toward a disclosure. It all here we accept his submission that none of the material was prosecution with material within a three a or B, since none of it came into the prosecutors possession in connection with the case against the accused, nor had it been inspected in that connection. The service certificates and engineer logs were not in the prosecution of possession at all, but were obtained by request of Lion Laboratories. Section 84 provided the only other route for statutory disclosure, but there was no obligation on line laboratories to provide the service certificates or engineer logs to the prosecutor if asked not to make them available for inspection. The Subsection eight for focuses on the obligation to supply. In other words, the prosecution must be allowed to inspect the material not on any obligation to make a request. So the material fell outside 83 and it fell outside eight four, so there was no obligation on the part of the prosecution to disclose on the court couldn't make an order for disclosure under section AIDS. It's going to be rare that there's an obligation on the party to allow inspection. The only way to get it is I, with the prosecution generally to make an application for a witness summons under CPR Part 17 or for the defense to make the application there's no obligation on the prosecution to make the application if they don't have reasonable grounds to believe that the material in the hands of the third party will undermine or assist. As per Section three, you can read more about this. If you go to the attorney general's guidelines on disclosure from 2000 and 13 just Google it. Look at paragraphs 53 to 58. Looking at the documents in the custody suite that have been requested. Levinson goes on site power of 53 that included the memory within the in toxin lies, a device that Dr Monday wanted to access to try to show that the machine was unreliable. Those could only come within a force of Levinson if they were held by the investigating or disclosure officer. Once it's accepted. As it was here that they were in the possession of the police, it was not suggested they'd fall outside aid for on a request being made by the prosecutor pursuant to an operative code. If there's an obligation on the prosecutor to ask for material under that provision, 84 would be satisfied, but there would still be no obligation under section three or a continuing obligation under Section seven a. The duty to keep under review to disclose such material unless it was reasonably capable of undermining the prosecution case or assisting the defense well, there was nothing to suggest that the memory on various other items requested that were technically held in the custody suite. We're reasonably capable of undermining or assisting. There's new don't know duty on the prosecution to go looking as private investigators to see if there might be such material. If the prosecution don't believe that there's reasonable grounds to think that that material exists, that's the end of their obligation, Levinson continues. There's no basis upon which the prosecution could reasonably have thought that the most material capable of undermining or advancing the defense case so it comes to this. If you're defending, you need to prove a proper evidential basis for concluding that the material sort is reasonably capable of undermining the prosecution or of assisting the defense, or that it represents a reasonable line of inquiry to pursue. It's thought that it might be neutral. It's not disclose herbal if it's going to help the prosecution to the detriment of the defense, it's not disclose herbal, but a shrewd prosecutors going to want to look at it to see whether or not it ought to be evidence rather than used in those circumstances. Reasonable line of inquiry. Have a look a paragraph 3.5 of the C P I. A. Code of practice or have a look at the attorney general's guidelines. Paragraph 17. Levinson went on to point out that it's not enough for an expert to come to court to say the materials necessary to make it disclose Herbal here. The Section eight application didn't provide any evidential basis for the defense to make their application. It's not enough in this case just to simply say that the defendant hadn't drunk that march and therefore the reading must be wrong is going to need to step up. A. Levinson goes on site paragraph 57. The first requirement is the basis for contending how the device might produce a prince out, which, on its face demonstrated it was operating in a proper fashion but which could generate a very significantly false reading where, on the defense case, the true reading would have been well below the prosecution limit. The second requirement is to demonstrate how the material, which was sort, could assist to demonstrate hell that might have happened. Those two issues, which arise on which the expert evidence in support of disclosure should address unless that evidence has provided the disclosure, is irrelevant. So whenever you make a Section eight application, you're going to need to set out on evidential basis for the court to grasp to set the application in context. If you're defending one of your first responses to a Section eight application is going to be to argue that the evidential basis has not been founded, particularly you'll want to look if you're prosecuting too vague or tenuous or speculative defenses in the case management form the defense case statement or Petee pH form, such as factual basis. Witness Mistaken witness Wrong, Levinson goes on. So paragraph 61. Finally, if the DJs require disclosure of material in the hands of line literature is limited. 1/3 party, the appropriate procedure, should have been in vote. In other words, a witness summons should have been granted, but before it could be granted, it should have been applied for orders. Can't be made to require the CPS to obtain what it's no right to obtain on the perhaps of the prosecution being dismissed. It's not to the point that the third party might prove quite cooperative. Levinson sites the Crown versus agency. If it's neutral, it's not. Disclose herbal. If it's not undermining or assisting within Section three, it's not disclose herbal only if it ticks the boxes under Section three, having first of all circumvented. The definition of criminal investigation on bond demonstrated that the material is in the prosecution's possession in connection with the face against the accused, and we then move on to that aspect. So morals of the story don't send shopping lists or what the Court of Appeal is called interrogatories to the prosecution. In the case of Boardman again, Levinson said, the court will not support the country, will be extremely critical of attempts to administer interrogatories of the type that this Defense case statement contained going on beyond a request for the disclosure of unused material, but rather on the face of it, seeking to impose a burden on the police to undertake investigations on their behalf. In other words, the police and CPS and not private investigators. It takes time and effort to respond to these requests, even if only to refuse them. The defense also have the responsibility of ensuring that their requests are addressed to no more than the law permits, and to go no further is to abuse the process. But the 1996 act set up. So putting your ducks in a row If you're defending date, put a list of items you want on the pet form. Set out. For example, one suggested form of words if the following items are in the possession off the prosecution in connection with the case against this accused the prosecution are invited pursuant to paragraph 43 of the Attorney General's Guidelines on Disclosure 2013 to consider whether or not those items undermine or assist within section three and, if so, to disclose accordingly. If you're unclear whether these air exhibits or unused, you might want to invite the court to direct that if air exhibits they be served in accordance with paragraph 13.1 on the pet fourth, and if they're unused on they meet the Section three and Section eight test that they be disclosed within 13.2 of the platform, you're going to need to set out the issues If you want to get the support of the court. You might want to put on that. If the material is not in the hands of the CPS in connection with the case skates, the accused with the prosecution indicates a promptly so that you can make your own inquirers Mr who has the material and then consider whether or not under Part 17 issued. Obtain a witness summons If you're prosecuting and you see such an endorsement and you're going to want to speak to the police, if the material is not listed on the schedules of unused to find out whether or not they've got it, have they got in connection with a case against the accused? Can you see it on what course of action does the CPI A require you to take? Have a look at both sides of paragraph six and seven and 10 of the Attorney general's guidelines for more guidance. Lastly, if somebody else has the material, but they're not willing to disclose, either party can seek a witness summons