Defence Disclosure In The Magistrates'; Court

Most, if not all, cases in the magistrates' court will be governed by the provisions of the CPIA 1996, as amended by the Criminal Justice Act 2003. These amendments came into force on the 4th April 2005.

When does the duty of disclosure arise?

1. Section 1(1) of the CPIA 1996 makes it clear that the provisions of Part I only apply where the defendant has pleaded not guilty, either to a summary-only matter or an either-way matter "in respect of which a court proceeds to summary trial". Therefore, until a not guilty plea is entered there is no entitlement to disclosure.

2. It is worth bearing in mind here the terms of the CPIA Code. Para.6.2 states that any material, (i) which may be relevant to an investigation, (ii) which has been retained and (iii) which the disclosure officer believes will not form part of the prosecution case "must be listed on a schedule", although according to Para.6.6 such a schedule need only be prepared in summary proceedings where "it is likely" that the defendant will plead not guilty. If the defendant enters an unexpected plea of not guilty Para.6.8. provides "the disclosure officer must ensure that a schedule is prepared as soon as reasonably practicable after that happens".

3. Once the schedule(s) have been compiled, pursuant to Para.7.1, the disclosure officer must give them to the prosecutor and, pursuant to Para.7.2, draw to his or her attention any retained material "which may satisfy the test for prosecution disclosure". Thereafter the prosecutor will need to consider the material on the schedules to see whether any of it falls to be disclosed.

   When must the duty be complied with?

4. The initial duty of disclosure in section 3 of the CPIA 1996 must be completed within a time limit set down by section 12. In fact that section does not itself lay down any time limits but it does stipulate that it is for the Secretary of State "to prescribe any regulations for the purposes of", inter alia, section 3. To date there is no such regulation in force in respect of summary proceedings and so, by virtue of section 13, section 3(8) should be read as if imposing an obligation on the prosecution to comply with its initial duty "as soon as reasonably practicable after" the defendant has pleaded not guilty.

5. Paragraph 3.1 of the 'Protocol for the Provision of Advance Information, Prosecution Evidence and Disclosure of Unused Material in the Magistrates' Court' (2006) ("the Protocol") states that "standard directions allow 28 days following plea for initial disclosure to be provided" although the origin of this rule is not stated.

   How must the duty be complied with?

6. Section 3(3) of the CPIA 1996 states that the initial duty of disclosure is complied with where either (i) the prosecutor discloses any prosecution material which has...