Obtaining disclosure of unused evidence
Produced in partnership with Hannah Thomas of 2 Hare Court

The following Corporate Crime practice note produced in partnership with Hannah Thomas of 2 Hare Court provides comprehensive and up to date legal information covering:

  • Obtaining disclosure of unused evidence
  • Duty of disclosure of unused evidence
  • Criticisms of the Crown’s approach to disclosure
  • When disclosure should be considered
  • What should be disclosed?
  • Scheduling unused non-sensitive and sensitive material
  • Disclosure and electronic data
  • Disclosure management documents
  • Ongoing duty of disclosure
  • Third-party material
  • More...

Obtaining disclosure of unused evidence

Duty of disclosure of unused evidence

The pursuit of a fair trial based on equality of arms has resulted in a duty of disclosure on the Crown to the defence. In R v H, the House of Lords described disclosure in the following terms:

‘It is fundamental to the right to a fair trial under article 6(1) of the Convention that criminal proceedings should be adversarial and subject to the principle of equality of arms between prosecution and defence. Those principles require investigating authorities to disclose all material evidence for or against the defence, whether or not the prosecution relies on it.’

However, entitlement to disclosure is not absolute and disclosable material may be withheld on public interest immunity (PII) grounds. For more information, see Practice Note: Public interest immunity.

The prosecutor's duty in terms of disclosure may be drawn widely. Not only is it required to provide details of its case when a matter proceeds to trial (see Practice Note: The service of prosecution evidence), a prosecutor is also required to provide both advanced information of the evidence on which the Crown intends to rely to prove its case before the case comes to court on the first occasion. The prosecutor is also required to provide material which it does not intent to rely on (unused material) to the defence where it

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