Disclosure of evidence and unused material
Under the Criminal Procedure and Investigations Act 1996 the prosecution must disclose unused material that might reasonably be considered capable of undermining its case or assisting the defence (s.3), and keep this under review (s.7A). In the Crown Court the defence must serve a defence statement within 28 days, and failures can lead to adverse inferences (s.11).
Initial details of the prosecution case
The prosecution must provide initial details by the start of the day of the first hearing (Criminal Procedure Rules 2025 Part 8): a summary and any criminal record and, unless the defendant came from police custody, any interview account, statements and exhibits material to plea, allocation or sentence, and any victim impact statement. Disclosure under the 1996 Act concerns unused material: material gathered in the investigation that the prosecution does not rely on.
The investigators' duties
The CPIA Code of Practice (in force 31 December 2020) requires investigators to pursue all reasonable lines of inquiry, whether they point towards or away from the suspect, and to keep relevant material. A disclosure officer lists it on schedules:
- MG6C: lists non-sensitive unused material; this schedule is given to the defence.
- MG6D: lists sensitive material, where disclosure would risk serious prejudice to an important public interest. This schedule is not given to the defence; withholding material that meets the test needs a court order (s.3(6)).
The prosecution's duty
- Initial disclosure (s.3): material not previously disclosed which might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused, or a written statement that there is none.
- Continuing duty (s.7A): the test is kept under review until the case ends, in particular after a defence statement.
- The Attorney General's Guidelines on Disclosure (2024 edition, effective 29 May 2024) explain how the regime works, including for digital material.
The defence statement
- Crown Court: compulsory (s.5), within 28 days of initial disclosure. Magistrates' court: voluntary (s.6), within 14 days. The court can extend time if asked within the period.
- It must set out the nature of the defence, the facts in dispute and why, the facts relied on, any points of law, and alibi details with witness names and addresses (s.6A). Defence witnesses must also be notified (s.6C).
- If, in the Crown Court, the defence fails to serve one, or in either court a statement is served late, sets out inconsistent defences or a different defence is run at trial, the court or other party may comment and the court or jury may draw proper inferences (s.11). Not serving a voluntary statement in the magistrates' court is not a fault. No one may be convicted solely on such an inference (s.11(10)).
Asking for more
After serving a defence statement, the defence may apply to the court under s.8 if there is reasonable cause to believe material that should have been disclosed has not been (Criminal Procedure Rules 2025 r.15.5). Disclosed material may be used only for the case (s.17).
In practice
Early advice matters because the defence statement time limits are short.
Authorities: Criminal Procedure and Investigations Act 1996 ss.3, 5, 6, 6A, 6C, 6E, 7A, 8, 11, 17, 18; Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011 regs 2-3; Criminal Procedure Rules 2025 Parts 8 and 15; CPIA 1996 (section 23(1)) Code of Practice (in force 31 December 2020); Attorney General's Guidelines on Disclosure (2024, effective 29 May 2024); CPS Disclosure Manual chapters 7 and 8