Case management and pre-trial hearings - Handling of unused ...

Learning Outcomes

This article examines handling of unused material in criminal proceedings, including:

• The scope, sources, and categorisation of unused material and its significance for case preparation and fair trial rights
• How to distinguish used from unused material and apply the correct disclosure test under CPIA 1996
• The prosecution’s initial and continuing disclosure obligations, including scheduling, review of sensitive material, and liaison with investigators
• The structure, timing, and strategic drafting of defence statements, and how they trigger further prosecution disclosure
• Practical steps for the defence to seek, challenge, and enforce disclosure, including targeted requests and s.8 applications
• The court’s case management and supervisory powers in disclosure disputes, including rulings on public interest immunity claims
• The principles governing public interest immunity, options for redaction or summaries, and safeguards for sensitive material
• Typical procedural and appellate consequences of disclosure failures, such as exclusion of evidence, stays, and quashed convictions
• Common SQE1 problem-question traps, including confusing disclosure with admissibility or inspection and overlooking the continuing duty
• Exam-oriented techniques for structuring answers on disclosure, from issue-spotting to remedy analysis and conclusion

SQE1 Syllabus

For SQE1, you are required to understand the handling of unused material in criminal proceedings, with a focus on the following syllabus points:

• Definition and recognition of unused material in criminal litigation
• The full scope of the prosecution’s disclosure duties under the Criminal Procedure and Investigations Act 1996 (CPIA 1996)
• The meaning and application of the “disclosure test” for unused material
• Initial/first stage (“primary”) and continuing prosecution disclosure requirements
• Obligations to reveal schedules, manage sensitive material, and seek public interest immunity where appropriate
• Defence disclosure obligations: serving and updating a defence statement in Crown Court cases
• The legal framework and procedure for requests and applications for further disclosure by the defence
• The court’s powers to adjudicate disclosure disputes and supervise the integrity of the process—balancing fair trial rights and other interests
• The practical, legal, and appellate consequences of non-disclosure, including exclusion of evidence and appeals due to unfair trial

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. What is meant by "unused material" in the context of criminal proceedings?
2. When must the prosecution disclose unused material to the defence, and what is the test for disclosure?
3. What is the purpose of a defence statement, and how does it affect the prosecution’s disclosure duties?
4. How can the defence challenge a failure by the prosecution to disclose relevant unused material?

Introduction

Unused material is a central issue in criminal case management and pre-trial hearings in England and Wales. It refers to all material obtained or generated by the prosecution during an investigation which is not intended to be relied upon as part of the prosecution case at trial. Throughout the prosecution of a criminal offence, diligent handling and disclosure of unused material is essential to upholding the defendant’s right to a fair trial and avoiding wrongful convictions. The disclosure regime helps ensure the defence can properly test the prosecution case and present any positive case or defence, and is primarily codified by the Criminal Procedure and Investigations Act 1996 (CPIA 1996), as developed by the Criminal Procedure Rules, the Attorney General’s Guidelines on Disclosure, and authoritative case law.

Key Term: unused material
Material obtained or generated by the prosecution during the investigation of a criminal offence which is not part of the evidence it intends to rely upon at trial.

The effective disclosure of unused material is a bedrock principle of fairness and natural justice, and a recurring area in criminal litigation for disputes, mismanagement, and appeals.

What is Unused Material?

Unused material encompasses any evidence or information obtained by the prosecution during an investigation that is not to be adduced as part of the prosecution case at trial. This may range from:

• Witness statements the prosecution chooses not to rely upon
• Forensic or technical reports not supporting their case
• Photographs, maps, plans, CCTV, or documentary evidence not exhibited
• Crime scene or custody records
• Unused expert reports or drafts
• Digital material—such as emails, computer records, or social media captures—not intended to be called
• Schedules listing items seized, but not produced as exhibits

Unused material may include material which is neutral, adverse to the prosecution case, or potentially beneficial to the defence, as well as material that may not be obviously relevant until later developments in the case.

Key Term: unused material
Any material in the prosecution’s possession that is not intended to form part of their case at trial, including material that may undermine the case against the accused or assist the defence.

The duty on the prosecution is not simply to gather or retain unused material, but to actively review it for any material that meets the disclosure test.

The Prosecution’s Duty of Disclosure

The prosecution must apply and comply with the statutory disclosure regime throughout the lifecycle of a criminal case in both the magistrates’ court and the Crown Court. The obligation is codified by CPIA 1996 and its accompanying secondary legislation and guidance.

The Disclosure Test

The prosecution is under a positive duty to disclose to the defence any unused material which “might reasonably be considered capable of undermining the case for the prosecution ... or of assisting the case for the accused” (CPIA 1996, s 3). This is referred to as the “disclosure test” or the “real possibility” test, and is objective: the material must be disclosed if a reasonable prosecutor, considering all the circumstances, would recognize that it might undermine the prosecution or assist the defence.

Key Term: disclosure test
The legal standard: unused material is “disclosable” if it might reasonably undermine the prosecution case or assist the case for the accused, regardless of the prosecutor’s personal view.

The test is not simply whether the material is in fact exculpatory: it need only “might” be capable of the described effect. The threshold is low, recognising the dangers of wrongful conviction by non-disclosure.

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

• Prior inconsistent statements by key prosecution witnesses
• Material contradicting prosecution expert evidence or pointing to flaws in police procedure
• DNA or fingerprint material excluding the defendant
• Evidence supportive of an alibi, self-defence, or duress

The assessment is not static and should be undertaken in light of developments in the case, defences disclosed, and evolving lines of argument.

Key Term: disclosure
The process under which the prosecution provides the defence with material that meets the statutory test to ensure the fairness of proceedings.

Timing and Stages of Disclosure

Disclosure is not a “one-off” administrative task, but a structured process:

• Initial (Primary) Disclosure: Following a not guilty plea, the prosecution must serve all disclosable material—used and unused. This includes disclosure of any unused material which satisfies the statutory test.
• Continuing (Ongoing) Disclosure: After service of a defence statement—required in cases sent to the Crown Court and voluntary in the magistrates’ court—the prosecution must review all previously undisclosed material again, in light of the issues and defences raised.
• Further/Continuing Disclosure: At any stage, should further material come to light, or as the case develops (for example, following a change in defence or receipt of further expert evidence), the prosecution has an ongoing duty to disclose.

Schedules of unused material (MG6C and MG6D (for sensitive material)) must be compiled by the police and reviewed by the prosecutor. The defence must be given an opportunity to inspect or be provided with copies of any material meeting the disclosure test.

Nature and Content of Unused Material

Unused material must be listed on schedule, categorized as sensitive or non-sensitive, and described with sufficient particularity for meaningful review. Sensitive material cannot be described in terms that would itself defeat a relevant privilege or reveal the agent’s identity, but where it meets the test for disclosure, the prosecution must consider an application for public interest immunity.

Examples of Disclosable Material

• Statements or reports contradicting aspects of the prosecution case or providing an alternative account (e.g., supporting an alibi or partial defence).
• Crime scene photographs or CCTV showing the defendant was not present.
• Forensic results suggesting a different perpetrator or exonerating the defendant.
• Notes from officers or interviews identifying another suspect or undermining the credibility of a key witness.

Worked Example 1.1

A defendant is charged with burglary. The prosecution holds a witness statement from a neighbour who says the defendant was not present at the scene. The prosecution does not intend to call this neighbour at trial.

Answer:
The prosecution must disclose this witness statement as unused material because it may assist the defence or undermine the prosecution case.

Further, if the defence raise an alibi in their defence statement, the prosecution must ensure that any material relevant to that alibi, even if previously considered neutral, is re-evaluated for disclosure.

Sensitive Unused Material and Public Interest Immunity

Not all unused material will be automatically disclosed if public interest considerations are engaged, such as harm to national security, ongoing investigations, informant safety, or the identity of covert human intelligence sources.

Key Term: public interest immunity (PII)
A principle which allows the prosecution, subject to court supervision, to withhold from disclosure material that would otherwise satisfy the disclosure test, if disclosure would damage a significant public interest.

Where PII is asserted, the court may be invited to review the material in private (“ex parte”) and make a ruling on disclosure, balancing the interests of justice, the right to a fair trial, and the policy supporting PII.

Prosecution’s Legal and Practical Duties

The prosecution must:

• Retain all material and review it for disclosure relevance;
• Serve non-sensitive schedules and make available for inspection material meeting the test;
• Seek the court’s assistance promptly where there is doubt about disclosure or the protection of sensitive material;
• Ensure continuing compliance as the case progresses.

Deliberate or negligent failure to comply is not a mere technicality; it can result in serious procedural consequences and impact the fairness and outcome of a trial.

Disclosure in the Magistrates’ Court and Crown Court

While the duties arise in both courts, initial and continuing disclosure is automatic and mandatory in the Crown Court, with the defence obliged to serve a defence statement. In the magistrates’ court, filing a defence statement is not compulsory, although it may be tactically advantageous.

The Defence’s Role in Disclosure

The defence is not passive in the management of unused material and has significant obligations, particularly in the Crown Court.

Key Term: defence statement
A document, provided by the defence under statutory obligation or voluntarily, setting out the nature of the defence, issues in dispute, and the factual or legal basis for challenging or contradicting prosecution evidence.

Content and Purpose of the Defence Statement

A defence statement must:

• Outline the nature of the defence
• Identify which allegations or factual assertions are disputed and explain why
• State any particular defences relied upon (e.g., alibi, self-defence, duress)
• Indicate any points of law to be raised, including those relating to admissibility of evidence or abuse of process
• List witnesses whom the defence intend to call (other than the defendant), and provide their names, addresses, and dates of birth if possible

The statement must be sufficiently detailed to enable the prosecution to conduct a meaningful further review of unused material in light of the real issues. A generic or vague statement—simply denying the prosecution case—will not suffice.

Timing and Service

• In the Crown Court, the defence statement must be served within 28 days of initial prosecution disclosure (unless extended by the court).
• In the magistrates’ court, provision of a defence statement is voluntary, but doing so may prompt fuller disclosure.

Failure to provide an adequate statement may permit adverse comment or, in rare cases, adverse inferences at trial.

Once a defence statement is served, the prosecution’s continuing duty of disclosure is triggered, and they must review all unused material in light of the defence case and make any fresh disclosures that now meet the test.

Key Term: continuing duty
The prosecution’s ongoing obligation to keep unused material under review, considering the evolving directions of the case and any defences raised.

Requesting Further Disclosure

If the defence believe further unused material should be disclosed—especially if it has become relevant due to matters revealed in the defence statement—they may request it directly from the prosecution. If the prosecution refuse or do not respond, the defence may apply to the court for an order requiring disclosure.

Legal Framework for Challenging Non-Disclosure

Applications to the court for further disclosure are made under CPIA 1996, s 8. The defence must specify the material sought and provide grounds for believing it meets the disclosure test. The judge must decide whether the material should be disclosed, weighing the right to a fair trial against competing interests (such as PII).

Key Term: legal burden
In the context of defences such as insanity or diminished responsibility, the legal burden of proof may rest on the defendant, who must prove the defence on the balance of probabilities.

However, for most disclosure applications, the legal burden remains on the prosecution to demonstrate to the court’s satisfaction why material should not or cannot be disclosed—such as where it is claimed to be subject to PII.

Worked Example 1.2

The defence statement in a fraud case indicates that the defendant disputes authorship of certain documents. The prosecution holds handwriting analysis reports not relied upon at trial.

Answer:
The prosecution must review these reports in light of the defence statement and disclose them if they might assist the defence or undermine the prosecution case.

The Court’s Supervisory Role

The court plays a central role in the policing of disclosure and in balancing fairness, efficiency, and competing interests. It has statutory powers to entertain applications for further disclosure, review claims that material should be withheld on PII grounds, and order the production of unused material for inspection.

In managing disclosure disputes, the court must:

• Ensure the overriding objective is met: cases must be handled justly, which includes “acquitting the innocent and convicting the guilty, dealing fairly with the prosecution and the defence, and dealing with the case efficiently and expeditiously” (CrimPR).
• Balance the defendant’s rights under Article 6 of the ECHR (right to a fair trial) against public interest considerations.
• Where PII is claimed, examine the material privately (ex parte) and decide whether it should be disclosed, and if so, whether disclosure should be in full or in redacted or summary form.

Key Term: public interest immunity (PII)
An exception allowing the prosecution to withhold from disclosure material that is otherwise disclosable, where required to protect the public interest (e.g., sensitive police methodology, intelligence, or national security), subject to court oversight.

Failure to seek court intervention before withholding material may seriously undermine the prosecution’s case, and can constitute an abuse of process or lead to appeal or retrial. The court may also direct parties to focus on genuinely disputed issues and encourage the early narrowing of disputes to reduce the burden (and risk) of disclosure.

Consequences of Disclosure Failures

A failure to comply with disclosure duties can have serious consequences for both the criminal proceedings and the criminal justice system:

• A conviction may be quashed on appeal if non-disclosure prevented a fair trial or contributed to a miscarriage of justice.
• The court may stay proceedings (halt the case) or exclude evidence under statutory or common law powers if disclosure breaches result in unfairness (under s.78 Police and Criminal Evidence Act 1984 or court's general powers).
• Deliberate withholding of material can lead to findings of gross prosecutorial misconduct, judicial rebuke, and referral to professional regulators.
• Prosecution or police officers failing in disclosure duties may be subject to disciplinary proceedings, case reviews, or (in rare cases) criminal or civil sanctions.

Worked Example 1.3

In a robbery trial, the prosecution fails to disclose CCTV recordings from a nearby shop that tends to support the defendant’s alibi. The defendant is convicted and appeals when the CCTV evidence comes to light.

Answer:
The conviction may be quashed on the basis that the trial was unfair and there was a material risk of miscarriage of justice as the defence was denied material that could have supported the defendant’s case.

Exam Warning

Failing to disclose relevant unused material may render the trial unfair and is a leading cause of miscarriages of justice. The duty is continuous and must be approached conscientiously at all stages.

Practical Tips for SQE1

• Always distinguish between “used” (relied on at trial) and “unused” (not adduced in evidence) material when applying disclosure principles.
• Remember that disclosure duties attach objectively and depend on whether the material “might” undermine the prosecution or assist the defence, not whether the prosecution agrees or finds it persuasive.
• The prosecution’s duties are continuing, and further defence statements or developments must prompt re-review.
• Service of a defence statement is mandatory in the Crown Court and triggers a further sweep for disclosure. In the magistrates’ court, doing so is optional but often strategically useful, especially when pressing the prosecution for further disclosure or challenging the completeness of initial disclosure.
• Where material is withheld on PII grounds, recognize that only a judge (not the prosecution acting unilaterally) can sanction non-disclosure, sometimes after inspecting the material ex parte.

Revision Tip

On problem questions, structure your analysis in terms of (i) identification of unused material; (ii) application of the statutory disclosure test; (iii) assessment of whether the duty of continuing disclosure is triggered and fulfilled; and (iv) available remedies and possible consequences of non-disclosure.

Key Point Checklist

This article has covered the following key knowledge points:

• Unused material is any material gathered during a criminal investigation that is not relied upon at trial.
• The prosecution must disclose unused material that meets the objective statutory “disclosure test”: it might reasonably undermine the prosecution or assist the defence.
• Disclosure is both an initial and a continuing duty, requiring the prosecution to keep the position under review at all stages.
• The defence has an obligation to serve a detailed defence statement in Crown Court cases, which in turn triggers further review and possible additional disclosure by the prosecution.
• The defence can request additional disclosure and, if refused, apply to the court for an order for further disclosure.
• The court plays a supervisory role, balancing fair trial rights with competing interests, adjudicating on PII claims, and ensuring the integrity of the process.
• Failure to disclose relevant unused material has severe consequences, including the risk of unfair trial, exclusion of evidence, case stays, and the quashing of convictions on appeal.

Key Terms and Concepts

• unused material
• disclosure
• disclosure test
• continuing duty
• defence statement
• legal burden
• public interest immunity (PII)