Disclosure

The duty of disclosure is a fundamental rule regarding the accused’s right to material held by the prosecuting authorities. This right extends to exculpatory material as well as to material detrimental to the credit of prosecution witnesses.

The duty of disclosure is a fundamental rule regarding the accused’s right to material held by the prosecuting authorities. This right extends to exculpatory material as well as to material detrimental to the credit of prosecution witnesses.

The common law principles are codified at s142 of the Criminal Procedure Act 1986, which requres that the prosecutor disclose "a copy of any information, document or other thing provided by law enforcement officers to the prosecutor, or otherwise in the possession of the prosecutor, that would reasonably be regarded as relevant to the prosecution case or the defence case, and that has not otherwise been disclosed to the accused person"

Full and complete disclosure is essential if the accused’s right to a fair trial is to be protected. It is generally considered to include, as minimum, the following:

- All statements of witnesses, including witnesses not proposed to be called

- Advance notice of discrepancies between a witnesses statement and evidence expected to fall from that witness

- All other materials that may assist the defence

- All material relevant to the credit of prosecution witnesses

This duty is tempered in several ways, principally through statute (see, for example, the list of offences in respect of which a brief of evidence is not required to be served at r24 of the Criminal Procedure Regulation 2017) and through public interest immunity and legal professional privilege.

Ward

R v Ward [1993] 2 All ER 577

Summarises the rules surrounding disclosure in the English courts