Case management and pre-trial hearings - Disclosure obligati...

Learning Outcomes

This article provides a detailed exposition of the duties of disclosure that apply to both prosecution and defence in criminal proceedings in England and Wales. The focus is on the statutory framework established by the Criminal Procedure and Investigations Act 1996 (CPIA 1996), including the basic and continuing obligations of disclosure by the prosecution, and the specifics of defence disclosure such as the requirements and consequences of serving a defence statement. The coverage includes the treatment of unused and sensitive material, the standards applicable to disclosure, the timing and form of formal notices, and the impact of failures to fulfil these responsibilities. Areas explored further include the practical management of disclosure as part of modern case management under the Criminal Procedure Rules, the structure and function of Plea and Trial Preparation Hearings (PTPH), and the procedural mechanisms—such as defence applications, court orders, and adverse inferences—that underpin a fair criminal process. The complex interrelation between statutory, common law, and professional conduct obligations is explained, with case law and up-to-date legislative requirements integrated throughout.

SQE1 Syllabus

For SQE1, you are required to understand disclosure obligations in criminal litigation for both prosecution and defence under the CPIA 1996 and related rules, with a focus on the following syllabus points:

• Principles and procedures of disclosure in criminal litigation, especially obligations under the CPIA 1996.
• The prosecution’s duty to disclose unused material that might reasonably be considered capable of undermining its case or assisting the case for the accused (including the objective test for such material).
• The prosecution’s ongoing duty to review the disclosure of material and respond to the evolving defence case and served defence statements.
• Statutory rules and judicial practice concerning sensitive material, including public interest immunity (PII) applications.
• Defence disclosure obligations, particularly in the Crown Court: the statutory requirements for the service, content, and timing of a defence statement as per s 6A CPIA 1996.
• Specific statutory requirements surrounding the disclosure of an alibi defence, including witness details and investigative consequences.
• The system for disclosure of details of defence witnesses (including name, address, and date of birth), and the time limits applicable under s 6C CPIA 1996.
• The consequences of late or non-compliance by either party, including procedural remedies and the drawing of adverse inferences at trial (with reference to s 11 CPIA 1996).
• Court powers to adjudicate disputes as to disclosure and ensure proper case management under the Criminal Procedure Rules (CrimPR).
• The procedural structure of case management and pre-trial hearings, including the case preparation forms and the Plea and Trial Preparation Hearing (PTPH).
• Practical interplay with professional duties under the SRA Code of Conduct, and the express recognition of Article 6 ECHR fair trial requirements.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Under the CPIA 1996, the initial test for prosecution disclosure requires the prosecution to disclose unused material that:
   1. Is relevant to the case.
   2. Might reasonably be considered capable of undermining the prosecution case or assisting the defence case.
   3. Will definitely prove the defendant's innocence.
   4. Has been specifically requested by the defence.
2. In which court is the service of a defence statement compulsory for the defendant?
   1. Magistrates' Court only.
   2. Crown Court only.
   3. Both Magistrates' Court and Crown Court.
   4. Neither court; it is always voluntary.
3. If a defendant fails to mention a fact in their defence statement which they later rely on at trial in the Crown Court, what potential consequence might arise under the CPIA 1996?
   1. The trial must be stopped.
   2. The evidence related to that fact is automatically excluded.
   3. The court or jury may draw adverse inferences.
   4. The prosecution must be granted an adjournment.

Introduction

Disclosure in criminal proceedings refers to the exchange of relevant material between the prosecution and the defence. It is a fundamental feature of a fair trial—a right protected under Article 6 of the European Convention on Human Rights (ECHR)—as it ensures the defendant can understand and challenge the case against them. Disclosure operates both at a statutory level, primarily through the Criminal Procedure and Investigations Act 1996 (CPIA 1996) and the Criminal Procedure Rules, and as a matter of professional conduct for legal representatives. It includes the timely provision of witness statements and exhibits intended to be used in evidence, as well as unused material which, while not relied upon by the prosecution, may be relevant to the defence or undermine the prosecution case.

This process is managed through a combination of court orders, statutory procedures, and active judicial case management—ensuring that matters of disclosure are identified and addressed at an early stage (for example, at the PTPH in the Crown Court), and that both sides engage robustly with their obligations throughout the progress of a criminal case.

Key Term: Disclosure
The process by which the prosecution and the defence provide and receive relevant evidence and material, including both relied-on and unused material, to ensure a fair trial.

Prosecution's Duty of Disclosure

The prosecution bears a fundamental responsibility in disclosing relevant material to the defence. This duty is grounded in both statute (CPIA 1996) and the overriding objective of the Criminal Procedure Rules—to ensure criminal cases are dealt with justly.

Initial Disclosure

The initial duty of disclosure arises promptly following a not guilty plea (in the magistrates’ court) or following the sending/transfer of a case to the Crown Court. Section 3 CPIA 1996 requires the prosecution to:

• disclose to the accused any prosecution material which has not previously been disclosed and which might reasonably be considered capable of undermining the prosecution case or of assisting the case for the accused, or
• provide a written statement that there is no material of that description.

This critical test is objective and focuses on the reasonable prosecutor, rather than the personal view of the case officer or advocate. The scope is not limited to material specifically requested by the defence; the duty is proactive, broad, and continuing.

The material captured by this obligation includes both used and unused material:

Key Term: Unused material
Material acquired in the investigation of an offence which the prosecution does not intend to rely upon at trial but which could be relevant, including interview records, surveillance logs, forensic reports, witness statements not supporting the prosecution, and digital evidence.

Examples of unused material that might engage the disclosure test include:

• Evidence casting doubt on the reliability or credibility of a prosecution witness (e.g. previous convictions, prior inconsistent statements).
• Material suggesting an alternative suspect or exonerating the accused.
• Scientific, medical, or digital forensic material potentially harmful to the prosecution’s case.
• Information which might support or be relevant to the defence case, such as evidence supporting self-defence or alibi.

It is important to note the distinction between:

• Material which might undermine the prosecution case or assist the defence (and must be disclosed).
• Neutral material, which does not impact either side (and need not be disclosed as a matter of course).
• Material adverse to the defence case (which, by definition, forms part of the prosecution's used evidence and so is routinely disclosed).

Initial disclosure must be performed “as soon as reasonably practicable” after the relevant trigger event—plea in the magistrates’ court, or sending to the Crown Court, as appropriate (CrimPR Part 15).

The Attorney General’s Guidelines on Disclosure (2022) provide further practical guidance, making clear that the prosecution’s review of disclosure must take account of:

• The relevance of unused material to lines of defence signalled by the accused.
• The capacity of material to support arguments about the admissibility of evidence or abuse of process.
• Any information, scientific or otherwise, affecting the reliability of forensic or expert evidence.

Continuing Duty

The prosecution’s disclosure duties do not end with initial disclosure. Section 7A CPIA 1996 imposes a continuing obligation to keep matters of disclosure under review throughout the proceedings—up until conviction/acquittal or discontinuance.

This means the prosecutor is required to:

• Assess, in light of the evolving defence case (including any defence statement served), whether any previously undisclosed material now meets the disclosure test.
• Re-disclose or newly disclose material if further review makes clear it now satisfies the test, or if new material comes to light after the initial exercise.
• Disclose new information that comes into the hands of the prosecution or is identified by the defence in correspondence or court applications.

This ongoing process is managed via the case’s progression through the system and is frequently revisited at pre-trial hearings and as issues crystallise.

Sensitive Material and Public Interest Immunity (PII)

Occasionally, the prosecution will hold material which meets the statutory disclosure test but whose disclosure to the defence would risk a significant public interest, such as compromising national security, the identities of informants, covert methods, or the safety of individuals. This is termed sensitive material.

If such material falls within the scope of the disclosure test, the prosecution is not permitted simply to withhold it. Instead, an application must be made to the judge for a ruling on Public Interest Immunity (PII). The court must balance the competing interests: the public interest in non-disclosure and the defendant’s right to a fair trial. The court may:

• Refuse disclosure (protecting the material),
• Order limited or redacted disclosure,
• Or, in very rare situations where a fair trial cannot proceed without disclosure, halt the prosecution altogether.

Key Term: Public Interest Immunity (PII)
A principle permitting the prosecution, with judicial oversight, to withhold otherwise disclosable material from the defence where its disclosure would be contrary to the public interest (e.g., endangering lives, national security, or ongoing operations).

Sensitive material should be listed separately on an unused material schedule, and the fact of a PII application should be recorded when made.

Digital Material and Disclosure

The volume of digital material in criminal investigations requires specific disclosure management. The prosecution must take reasonable and proportionate steps (according to the AG’s Guidelines and case law such as R v Bater-James and Sultan Mohamed) to review, retain, and disclose relevant digital evidence, ensuring that defendants and complainants are fully informed about the scope of any digital review and its impact on disclosure. Where a complainant refuses access, courts must assess the impact on fairness.

Remedies for Inadequate Disclosure

If the defence believes the prosecution has failed to comply with its disclosure obligations (for example, withholding material that should have been disclosed), it may apply to the court under s 8 CPIA 1996 for an order requiring disclosure. This power activates on service of a defence statement and is an important safeguard in contested criminal litigation.

Exam Warning

It is essential to distinguish the prosecution’s duty (to disclose material that might undermine the prosecution or assist the defence) from general concepts of relevance or mere request. Disclosure is not limited to material the prosecution plans to use, nor does the defence have an automatic right to all material acquired by the police.

Defence Disclosure

While the prosecution bears the principal obligation of disclosure, the defence also has disclosure duties under the CPIA 1996 and Criminal Procedure Rules—especially where the defence intends to rely on a positive case or alibi.

Defence Statement

The defence statement is a written statement outlining the nature of the defence and is subject to precise statutory content requirements. Its role is to clarify the defence case and narrow contested issues, supporting fair and efficient trial management.

• In the Crown Court: service of a defence statement is compulsory. The statement must be served within 28 days of the prosecution’s compliance with initial disclosure (or as extended by court order).
• In the magistrates’ court: service is voluntary, but if given, must be served within 14 days of prosecution initial disclosure.

Key Term: Defence statement
A document prepared by the defence and served on the prosecution and the court, setting out the nature of the defence, particulars of facts relied upon, the factual issues taken with the prosecution, and any points of law—including authorities—on which the defence intends to rely. If alibi is raised, it must include specific details of the alibi and potential witnesses.

The mandatory content of a defence statement, as per s 6A CPIA 1996:

• The nature of the defence.
• The matters of fact on which issue is taken with the prosecution and why.
• Particulars of fact the defendant intends to rely upon.
• Any points of law (e.g., admissibility or abuse of process) and authority to be relied on.
• If relying on alibi, the name, address, and date of birth of any proposed alibi witness, or as many details as can be provided.

Defendants are under a continuing duty to update their defence statement if circumstances change or new facts or witnesses arise before trial.

Key Term: Alibi
A defence asserting that the accused was elsewhere at the time the alleged offence took place. If an alibi is raised in the defence statement, full witness details are required, or a statement that they are not known.

Disclosure of Defence Witnesses

Under s 6C CPIA 1996, the defence must give notice to the prosecution of any witnesses (other than the defendant) they intend to call at trial, including names, addresses, and dates of birth. This applies both in the magistrates’ and Crown Court, and the time limit mirrors that for the defence statement in each court (14 or 28 days post-initial prosecution disclosure). The police may then interview the proposed witnesses.

This duty ensures that both sides are aware of the scope of the case and enhances the fairness and efficiency of the proceedings.

Consequences of Non-Compliance

Failure to fulfil defence disclosure obligations carries significant procedural consequences, particularly in the Crown Court. Under s 11 CPIA 1996, the possible outcomes include:

• Permitting the prosecution to comment on the failure.
• Allowing the judge to direct the jury that they may draw such adverse inferences as appear proper when deciding guilt.
• Allowing the court to restrict the introduction of defences not previously disclosed or witnesses whose details were not provided as required.

However, these adverse inferences or restrictions cannot be the sole basis of a conviction—there must be other evidence of guilt.

Worked Example 1.1

David is charged with robbery and is awaiting trial in the Crown Court. His defence is alibi; he claims he was at a party hosted by his friend, Chloe, at the time of the offence. David's solicitor serves a defence statement outlining this alibi but fails to include Chloe's address or date of birth, merely stating her name. The prosecution cannot locate Chloe before the trial. At trial, David gives evidence of his alibi and calls Chloe to testify.

Answer:
The defence failed to provide full particulars of the alibi witness, Chloe, as required by s 6A(2) CPIA 1996 (specifically her address and DOB). This failure constitutes a fault under s 11 CPIA 1996. Consequently, the judge may allow the prosecutor to comment on this failure, and the jury may be directed that they can draw an adverse inference when considering David's guilt – potentially concluding that the alibi was fabricated or that the defence sought to prevent the police from investigating it properly.

Worked Example 1.2

Amira, on trial in the Crown Court for wounding, files a defence statement alleging that the prosecution witnesses were mistaken and asserting self-defence but fails to update her statement after deciding to rely on CCTV evidence showing she was present but the incident was accidental. The updated factual basis is only revealed at trial.

Answer:
Amira’s failure to update her defence statement to reflect her revised factual case (accident rather than self-defence) contravenes the continuing disclosure duty. The judge may permit the prosecution to comment on this omission and can instruct the jury that they are entitled to draw an adverse inference regarding the credibility of the defence.

Worked Example 1.3

Paul pleads not guilty to burglary in the magistrates’ court. He voluntarily serves a defence statement that does not mention an intention to call his employer as a witness to support his alibi. At trial, the defence seeks to call the employer.

Answer:
While the provision of a defence statement in the magistrates’ court is voluntary, once served, the disclosure duties under the CPIA 1996 fully apply. Failure to notify the prosecution of an intended defence witness as required under s 6C may trigger adverse comment and inferences; however, mandatory adverse inferences only apply in the Crown Court. In the magistrates’ court, the court may comment on the failure, and the prosecution may object to late or surprise witnesses or evidence, potentially affecting the persuasiveness of the defence.

Case Management and Disclosure

The effective management of disclosure in criminal litigation is central to fair and efficient trials. The Criminal Procedure Rules (CrimPR) 2020 and associated judicial practice place judicial case management as a primary element of modern criminal procedure.

In the magistrates’ court, case management includes active identification of the real issues in dispute, early directions on the service of evidence (including prosecution disclosure), and deadlines for any voluntary defence statement and witness notification. The standard Magistrates’ Court Trial Preparation Form guides parties to indicate factual and legal issues, outline anticipated defences, and confirm witness arrangements.

In the Crown Court, the PTPH is the key pre-trial hearing. Key features include:

• Formal arraignment of the defendant (presentation of the indictment and pleas taken on each count).
• Judicial case management to narrow issues, confirm disclosure has been completed, resolve intended witness evidence (including any special measures), and identify outstanding legal or evidential issues.
• Active monitoring of prosecution’s continuing disclosure duties, particularly in light of the defence statement’s impact on the scope of unused material.
• Provision for further case management hearings where necessary (e.g., ground rules for the examination of vulnerable witnesses or in complex cases with substantial disclosure issues).
• Tight judicial timetabling to ensure preparation for trial progresses efficiently, with crystalised issues, managed expectations over evidence, and resolved disclosure disputes.

The PTPH and associated forms require both sides to summarise issues in the case, confirm witness availability and evidence, and ensure compliance with all directions and obligations.

Where disputes over disclosure arise, the court can make specific orders under s 8 CPIA 1996 following the service of a defence statement, and consider and determine any PII applications, acting as guarantor of both parties’ rights.

Key Term: Case management
The judicial and procedural process of identifying and managing the issues in dispute in a criminal case, ensuring all procedural steps—including disclosure—are addressed, and that cases are conducted fairly, efficiently, and without undue delay.

Key Point Checklist

This article has covered the following key knowledge points:

• Disclosure in criminal proceedings is governed by the CPIA 1996, with continuing duties supplemented by the Criminal Procedure Rules and Attorney General’s Guidelines.
• The prosecution must disclose any material that might reasonably be considered capable of undermining its case or assisting the defence, including unused material, both initially and as a continuing duty.
• Sensitive material, such as that affecting witness safety or national security, may be withheld only via successful application for Public Interest Immunity (PII) before a judge.
• Defence disclosure—compulsory in the Crown Court but voluntary in the magistrates’ court—takes the form of a written defence statement specifying the nature and particulars of the defence, issues taken with the prosecution case, and any anticipated legal points. Any intended alibi evidence must be fully particularised (including witness details).
• The onus is on the defence to provide the names, addresses, and dates of birth for any intended defence witnesses (except the defendant) within the relevant time limits. Failure to comply may lead to comment and/or exclusion.
• Non-compliance by the defence in the Crown Court (and in the magistrates’ court, if a defence statement was served) permits adverse comment by the court or other parties, and the drawing of adverse inferences by the judge or jury—but a conviction cannot rest solely on these inferences.
• The courts actively oversee and manage the disclosure process, with powers to resolve disputes, ensure fairness, and enforce compliance through case management hearings and pre-trial preparation hearings.
• Professional conduct and the right to a fair trial are central—legal advisers must balance duties to the client and court in the handling of disclosure issues.

Key Terms and Concepts

• Disclosure
• Unused material
• Defence statement
• Alibi
• Public Interest Immunity (PII)
• Case management