Your Right to the Evidence

Year CPIA was passed

1996

The non-sensitive unused material schedule

MG6C

The sensitive material schedule

MG6D

Duration of the prosecution's disclosure duty

Continuing

Disclosure is the process by which the prosecution tells the defence about material gathered during the investigation that is not part of the case it intends to rely on at trial. This is known as 'unused material'. The test is whether the material might reasonably be considered capable of undermining the prosecution case or of assisting the case for the accused. If it meets that test, it must be disclosed.

Disclosure is not a single event. It is a continuing duty that runs from charge to verdict. New material, new lines of enquiry and new defence statements can all trigger further disclosure. A prosecutor who closes their mind once initial disclosure is served is not complying with the Act.

The governing statute is the Criminal Procedure and Investigations Act 1996, supported by the CPIA Code of Practice (most recently revised 2020), the Attorney General's Guidelines on Disclosure (2022), the Judicial Protocol on Disclosure, and the Criminal Procedure Rules. Together these set out what investigators must record, retain and reveal, and what prosecutors must then disclose.

• Record, investigators must record information that may be relevant to the investigation, including material that points away from the suspect
• Retain, that material must be retained until a decision is taken whether to charge, and then until conviction, acquittal or discontinuance
• Reveal, the disclosure officer must reveal the existence of unused material to the prosecutor on the appropriate schedule
• Disclose, the prosecutor must then disclose to the defence anything that meets the CPIA test

Unused material is listed on schedules prepared by the disclosure officer. MG6C lists non-sensitive unused material and is served on the defence. MG6D lists sensitive material, such as informant identities or intelligence product that the prosecution argues should not be disclosed, and is not served on the defence; a judge rules on it. MG6E is the disclosure officer's report identifying items that meet the disclosure test.

Schedules are the spine of the disclosure exercise. A schedule that lists 'mobile phone examined by digital team' with no further detail tells the defence nothing about what was looked at, what was found, or what was not examined. Schedules that are vague, generic or incomplete are the most common point of failure, and the most common subject of specific disclosure applications.

After charge the prosecution serves initial disclosure: any unused material that meets the CPIA test, together with the schedules. The defence then serves a defence statement setting out the nature of the defence, the matters of fact on which issue is taken with the prosecution, the reasons for taking those issues, and any points of law to be raised. In the Crown Court the defence statement is compulsory; in the magistrates' court it is voluntary but strongly advisable.

The defence statement triggers the prosecution's continuing duty and, specifically, the duty of secondary disclosure: to review the unused material in light of the defence and disclose anything that now meets the test. A focused defence statement that identifies the issues precisely is the single most effective tool the defence has to obtain disclosure that initial disclosure did not produce.

Where the defence has reasonable cause to believe that there is unused material that should have been disclosed but has not been, section 8 of CPIA allows an application to the court for specific disclosure. The application must identify the material sought, explain why it meets the test, and link it to the issues in the defence statement. A successful section 8 application can produce material the prosecution had categorised as not disclosable, or material the schedules failed to record properly.

The growth of digital evidence has been the single largest pressure on the disclosure regime. A modern smartphone may hold hundreds of thousands of items. The Attorney General's Guidelines and the CPIA Code now require investigators to set a reasonable, proportionate strategy for examination, recorded in writing, and to disclose the strategy and its results, including what was not examined. Generic statements that a device was 'reviewed' or 'examined' are not compliant. The schedule should identify the device, the examination method, the search terms or parameters used, what was reviewed, and what was retained.

Material held by third parties, such as schools, employers, social services, the NHS or family courts, is not automatically part of the prosecution disclosure exercise. Investigators are required to pursue reasonable lines of enquiry, which can include obtaining third party material where it is likely to be relevant. Where a third party will not provide material voluntarily, a witness summons under section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 may be needed. Fishing expeditions are not permitted: requests must be targeted and justified.

Disclosure failures range from the procedural to the case-ending. The 2017 collapse of R v Liam Allan, in which thousands of messages exonerating the defendant were not disclosed until days before trial, prompted the joint CPS and police National Disclosure Improvement Plan. The 2018 HMCPSI and HMICFRS joint review Making it Fair found systemic failings. Subsequent reviews have continued to identify recurring problems with schedules, with digital strategies and with the timeliness of secondary disclosure.

• Procedural, late service, incomplete schedules, missing MG6E
• Substantive, failure to disclose material that meets the test, including material that supports a defence already articulated
• Strategic, examining material in a way that produces no usable record of what was looked at and what was not
• Case-ending, disclosure failure of such gravity that the court stays the proceedings as an abuse of process, or the prosecution offers no evidence

• Raise it with your solicitor at the earliest opportunity, disclosure is a defence issue, not a complaint
• Ask whether a more specific defence statement could focus the duty of secondary disclosure
• Ask whether a section 8 application is appropriate and what material it would seek
• Ask whether the digital examination strategy has been disclosed, and what it covered
• If material emerges after conviction that should have been disclosed, this is a ground of appeal, speak to an appeals solicitor

Disclosure obligations sit with the prosecution, but they shape what happens to complainants too. Requests for therapy notes, social services records and digital devices are made under the disclosure regime. The Attorney General's Guidelines require that such requests be necessary, proportionate and justified by reference to a specific issue in the case. Blanket requests for a complainant's full counselling history, school records or phone download are not compliant with the Guidelines, and complainants are entitled to ask, through the officer in the case or the CPS, what is being sought and why.