ńņš. 13
(āńåćī 34)



See the national press, 26 April 1996. For a discussion of the legal issues see E. Saunders,
ā€˜Private Prosecutions by the Victims of Violent Crimeā€™, 144 New Law Journal, 29 September
1994, p. 1423. For sharp criticism of the Lawrence familyā€™s lawyers for having launched a
private prosecution that was bound to fail see M. Mears, ā€˜Mansļ¬eld, Kamlish and Khan ā€“ the
Three Wise Menā€™, 149 New Law Journal, 26 March 1999, p. 463. See further J. Kodwo Bentil,
ā€˜The Unenviable Task of Seeking to Institute a Private Prosecutionā€™, 154 Justice of the Peace, 26
May 1990, p. 324. [1995] 1 All ER 833, CA.
270 Pre-trial criminal proceedings

Lord Justice Auld in his Review said that although a strong case had been
advanced for abolition of the right of private prosecution he was not inclined
to recommend it. It was not much used but ā€˜its strength might lie in its avail-
ability when needed rather than in the extent of its useā€™,383 but in his view there
was the need for an eļ¬€ective system for alerting the DPP to the initiation of such
prosecutions so that he could consider his power to intervene. He recom-
mended that any court which authorised the initiation of a private prosecution
should be required to notify the DPP of it in writing.384

Duties of prosecuting lawyers
The classic statement on the role and approach of prosecuting counsel was
expressed by a judge as long ago as 1865 ā€“ they ā€˜are to regard themselves as min-
isters of justice, and not to struggle for a convictionā€™.385
At the time of the establishment of the Crown Prosecution Service, the Bar
set up a committee on the duties and obligations of counsel when conducting a
prosecution. The committee produced what have come to be called the
Farquharson Guidelines.386 The introductory passage of the 1986 Guidelines is
a classic statement regarding the special position of prosecution counsel:
There is no doubt that the obligations of prosecution counsel are diļ¬€erent from
those of counsel instructed for the defence in a criminal case or of counsel
instructed in civil matters. His duties are wider both to the court and to the
public at large. Furthermore, having regard to his duty to present the case for
the prosecution fairly to the jury he has a greater independence of those
instructing him than that enjoyed by other counsel. It is well known to every
practitioner that counsel for the prosecution must conduct his case moderately,
albeit ļ¬rmly. He must not strive unfairly to obtain a conviction; he must not
press his case beyond the limits which the evidence permits; he must not invite
the jury to convict on evidence which in his own judgment no longer sustains
the charge laid in the indictment. If the evidence of a witness is undermined or
severely blemished in the course of cross-examination, prosecution counsel
must not present him to the jury as worthy of a credibility he no longer enjoys.
Many of the important decisions counsel for the prosecution has to make arise
during the trial itself, and then because he has the conduct of the prosecution
case, he is the person best ļ¬tted to make them. Information will be available to
him and not, for example, to the judge of the reliability and background of the
witnesses he is proposing to call. It is for these reasons that great responsibility
is placed upon prosecution counsel and although his description as a ā€˜minister
of justiceā€™ may sound pompous to modern ears it accurately describes the way
in which he should discharge his function.

383 384
Auld, Ch. 10, para. 48, p. 414. Auld, Ch. 10, para. 48, p. 415.
Puddick (1865) 4 F & F 497 per Crompton J.
For the name of the chairman Farquharson J. The original Guidelines were published in the
Law Societyā€™s Gazette, 26 November 1986, p. 3599.
271 The prosecution process

The Farquharson Guidelines were reissued in a revised version in 2002.387
Strangely, the new version did not include anything about the fundamental
issues regarding prosecuting counselā€™s role explained in the original text, but
there can be no doubt that the fundamental principle remains unchanged.388
At the core of the principle is that prosecution counsel is independent. This
is a vital part of the role of the barrister in private practice and most of all for
prosecution counsel. In his introduction to the revised version of the
Guidelines, the Lord Chief Justice said that the prosecution advocate ā€˜plays an
important public role and as such may be considered a cornerstone of an open
and fair criminal justice systemā€™. He cannot be that cornerstone unless he is
independent, but what does independence of prosecution counsel mean in

The prosecutor and those instructing him
Where the prosecution is handled by a barrister in private practice at the Bar, as
is normally still the case in Crown Court cases, the question of independence
means counselā€™s relationship with those instructing him ā€“ the CPS and, through
the CPS, the police. To what extent is counsel free to take what he considers to
be the right decisions with regard to the case he is prosecuting?
That this is a problem area became clear in the Crown Court Study conducted
for the Runciman Royal Commission.389 The back page of the questionnaires
used in the study was blank. Respondents were asked to use the page to express
any particular concerns about the system which they wanted to draw to the
Royal Commissionā€™s attention. One issue raised over and over again by the bar-
risters was that of unwelcome and inappropriate pressure exerted on them by
the CPS.
The 1986 Guidelines said on this issue that in case of disagreement between
counsel and those instructing him, counselā€™s view should prevail subject to the
right of the CPS to take a second opinion or to withdraw the instructions and
brief another barrister. From a certain point of time, however, it would no
longer be practicable to withdraw instructions.
The 2002 revised Guidelines dealt with the issue in more detail:390

The Role and Responsibilities of the Prosecution Advocate
3. (c) Presentation and conduct While he remains instructed it is for Counsel
to take all necessary decisions in the presentation and general conduct of the
prosecution . . .

Published on the CPS Website at www.cps.gov.uk and the Criminal Barā€™s Website at
See also R. Young and A. Sanders, ā€˜The Ethics of Prosecution Lawyersā€™, 7 Legal Ethics, 2004,
pp. 190ā€“209.
M. Zander and P. Henderson, Crown Court Study (Royal Commission on Criminal Justice,
Research Study No. 19, 1993).
For reasons of economy of space, the extract that follows only states each main proposition
without the explanatory paragraphs.
272 Pre-trial criminal proceedings

4. (d) Policy decisions Where matters of policy fall to be decided after the point
indicated in (b) above (including oļ¬€ering no evidence on the indictment or on
a particular count, or on the acceptance of pleas to lesser counts), it is the duty
of Counsel to consult his Instructing Solicitor/Crown Prosecutor whose views
at this stage are of crucial importance . . .
(e) In the rare case where Counsel and his Instructing Solicitor are unable to
agree on a matter of policy, it is subject to (g) below, for Prosecution Counsel to
make the necessary decisions . . .
(f) Attorney General Where Counsel has taken a decision on a matter of policy
with which his Instructing Solicitor has not agreed, then it would be appropri-
ate for the Attorney General to require Counsel to submit to him a written
report of all the circumstances, including his reasons for disagreeing with those
who instruct him . . .
5. (g) Change of advice When Counsel has had the opportunity to prepare his
brief and to confer with those instructing him, but at the last moment before
trial unexpectedly advises that the case should not proceed or that pleas to lesser
oļ¬€ences should be accepted, and his Instructing Solicitor does not accept such
advice, Counsel should apply for an adjournment if instructed to do so [to
permit other counsel to be instructed] . . .
6. (h) Prosecution advocateā€™s role in decision making at trial Subject to the
above, it is for Prosecution Counsel to decide whether to oļ¬€er no evidence on a
particular count or on the indictment as a whole and whether to accept pleas to
a lesser count or counts . . .
Whether those more detailed propositions have made a diļ¬€erence is not known.
Barrister David Jeremy, while welcoming the new Guidelines, expressed anxiety
as to whether they would operate as intended. Writing in the Criminal Bar
Association Newsletter391 he claimed that the independence of the prosecuting
barrister had been ignored by both the Bar Council and the CPS:
When it comes to the important policy questions such as acceptance of plea, or
continuing with a prosecution, a whole generation of barristers has grown up
with the idea that they are no more than a conduit between the CPS and the
defendant. The pantomime of experienced counsel explaining a serious case over
the telephone to a CPS lawyer, who may be totally unfettered by knowledge of the
case, and then awaiting the latterā€™s ā€˜instructionsā€™, sometimes without even being
asked to give his own opinion, has brought the prosecution process into disre-
pute. It fails to make use of the expertise of the Bar and it renders the CPS vul-
nerable to defensive decision-making, that is decision making that is motivated
by a desire to conceal errors or omissions, that gives too much weight to the views
of others such as the police, or that simply seeks the easiest option . . .
The reason why we have been reduced to this situation is presumably because
the Crown Prosecution Service perceives a need to appear to be in sole control
of decision-making, and the Bar in turn has paid excessive regard to the fact that
the CPS is a provider of work. By being too fearful of where the next brief is
coming from, we have contributed to the abandonment of any valid claim to be
independent prosecutors.
June 2002, pp. 3 and 4.
273 Bail or remand in custody

The problem of the prosecutorā€™s independence also occurs when the prose-
cution is being presented by the CPS themselves. Independence in that context
means freedom to conduct the case as it requires unaļ¬€ected by extraneous con-
siderations such as the bureaucratic concerns of a large organisation. Worries
about this fuelled much of the opposition at the time to proposals to extend
rights of audience in the higher courts to CPS advocates.392

The barrister and the judge
The Farquharson Guidelines also deal with the relationship between prosecut-
ing counsel and the judge, especially as to whether counsel is right to accept a
plea to a lesser charge. The revised Guidelines in 2002 restated the position set
out in the original version in 1986:
7.(i) If Prosecution Counsel invites the Judge to approve the course he is propos-
ing to take, then he must abide by the judgeā€™s decision . . .
(j) If Prosecution Counsel does not invite the Judgeā€™s approval of his decision,
it is open to the Judge to express his dissent with the course proposed and invite
Counsel to reconsider the matter with those instructing him, but having done
so, the ļ¬nal decision remains with Counsel . . .
(k) In an extreme case where the Judge is of the opinion that the course proposed
by Counsel would lead to serious injustice, he may decline to proceed with the case
until Counsel has consulted with the Director [of Public Prosecutions393] . . .
For a valuable review of many of the ethical problems of criminal practice see
M. Blake and A. Ashworth ā€˜Some Ethical Issues in Prosecuting and Defending
Criminal Casesā€™, Criminal Law Review, 1998, pp. 16ā€“34. The authors consider
a variety of issues: defending a person believed to be guilty; believing that
perjury has been committed; the lawyer knows that an error of law or fact has
been made which favours the other side; the defence lawyer thinks the client
would be better advised to plead guilty but the client wishes to plead not guilty;
the client and his lawyer disagree as to how to conduct the defence; the prose-
cutor realises that evidence has been obtained unfairly; and the prosecutor
negotiates for a guilty plea even though he suspects that the prosecution case
would fail.

8. Bail or remand in custody394
There are many reasons for concern as to whether accused persons should be
held in custody while their cases are still pending.395 Remand in custody for

The writer was with the Bar and many of the judges in voicing such fears ā€“ M. Zander, ā€˜Will the
Reforms Serve the Public Interest?ā€™, 148 New Law Journal, 3 July 1998, p. 969. On the rights of
audience battle see p. 220 below. Commonly referred to simply as ā€˜the Directorā€™.
See generally on this subject N. Corre and D. Wolchover, Bail in Criminal Proceedings (3rd
edn, Oxford, 2004).
For a great deal of information on this subject see: www.prisonreformtrust.org.uk and
274 Pre-trial criminal proceedings

someone who has not yet been convicted is despite the fact that he is formally
presumed to be innocent. To be remanded in custody is a serious matter for the
person concerned.
Remand prisoners are disadvantaged in preparing their cases for trial. The
remand prisoner will be hindered in getting access to lawyers to prepare his
defence, in looking for witnesses and collecting evidence or preparing evidence
in mitigation of sentence. If the prison where he is held is remote, he may ļ¬nd
that lawyers are not willing to come there at all. Even when it is relatively close
to main centres of population he will ļ¬nd it diļ¬ƒcult to have the kind of access
to advisers that would be possible if he were at liberty.
There is evidence that, other things being equal, those who are held in custody
are more likely to plead guilty, to be found guilty and to be given a custodial sen-
tence than those who are on bail. In other words, the mere fact of being impris-
oned seems to have an eļ¬€ect on oneā€™s prospects in the criminal justice system.396
Also, the defendant in custody is unable to continue with his normal life, may
lose his job, may fall behind in paying rent and both he and his family may suļ¬€er
other ļ¬nancial and other practical diļ¬ƒculties, as well as obvious emotional
upset or even trauma. The National Association for the Care and Resettlement
of Oļ¬€enders carried out a study based on interviews with 3,449 prisoners in
eight male and two female prisons. Nearly one-third of the sample (31 per cent)
were unconvicted prisoners on remand. Two-ļ¬fths of the remand prisoners had
lost their homes as a result of being in prison and over one-third (35 per cent)
of the remand prisoners had lost jobs through being imprisoned.397
The suicide rate of remand prisoners is signiļ¬cantly higher than the rate for
prisoners who are not on remand.398 It is generally assumed that the reason is
the anxiety and uncertainty of the situation of awaiting trial or sentence, the
higher proportion of mental disturbance among remand prisoners and the
depressing eļ¬€ect of the poor conditions and restricted regimes in which remand
prisoners are held.
Remand prisoners are also a serious issue from the point of view of prison
overcrowding. Remand prisoners who have not yet been convicted or are await-
ing sentence make up around one-ļ¬fth of the prison population. (Of these,
roughly, two-thirds are unconvicted, the remaining third are awaiting sen-
tence.) Because of the rapid turn-over of remand prisoners, they are, of course,
an even higher proportion of all receptions into prison. There have been times
when lack of space in prisons has meant that remand prisoners have had to be
held in police cells.
Conditions in prisons for remand prisoners are theoretically better than for
convicted prisoners. They are allowed more visits, they can send more letters,

A.K. Bottomley, Decisions in the Penal Process (Martin Robertson, 1973) pp. 88ā€“93.
ā€˜Bail ā€“ Some Current Issuesā€™, Penal Aļ¬€airs Consortium, October 1995, p. 2 ā€“ referred to here
as the ā€˜Penal Aļ¬€airs Consortium Paper, 1995ā€™.
Remand prisoners were between a ļ¬fth and a quarter of the prison population but they
accounted for half the suicides (Penal Aļ¬€airs Consortium Paper, 1995, p. 3).
275 Bail or remand in custody

they can wear their own clothes and be attended by a doctor of their own choice
(provided they meet the cost), they can work if they wish like convicted pris-
oners but cannot be required to do so, they cannot be required to have their hair
cut, they can have more cigarettes and may use private cash for purchases from
the prison shop. But in practice the regime for remand prisoners is in most ways
worse than for those who have been convicted. A paper presented in 1992 to the
Criminal Justice Consultative Committee prepared by the Director General of
the Prison Service stated: ā€˜Taken as a whole, however, the regime for uncon-
victed prisoners is in practice far from satisfactory, and is often worse than for
the convicted. A variety of factors contribute to this, including antiquated
accommodation, a transient and sometimes volatile population, and the pres-
sures placed on establishments by the demands of courts and other workā€™ (para.
4.3). In many prisons they are locked in their cells as much as twenty-three
hours a day.
The question of bail arises in three situations: the street, the police station and
the court.

Bail on the street
The Criminal Justice Act 2003 introduced the radically new concept of bail
granted by a police oļ¬ƒcer in the street. The Explanatory Notes accompanying
the Act said this ā€˜provides the police with additional ļ¬‚exibility following arrest
and the scope to remain on patrol where there is no immediate need to deal with
the person concerned at the [police] stationā€™ (para. 107). It was intended to
allow the police ā€˜to plan their work more eļ¬€ectively by giving them new discre-
tion to decide exactly when and where an arrested person should attend at a
police station for interviewā€™ (ibid).
Section 4 of the Act amends s. 30 of the Police and Criminal Evidence Act
1984 which requires the police to take an arrested person to a police station. The
arrested person must be given a written notice stating the oļ¬€ence for which he
was arrested and the ground.399 If he is not told at that time where and when he
must attend at a police station, he must be so informed later. No condition other
than attendance at a police station may be imposed. Failure to attend at the
speciļ¬ed time makes the person liable to arrest.
There is no solid information as to how much this new power is being used.
(The writerā€™s impression is that so far at least it is little used.)

Bail from the police station
If a person is arrested on a warrant, the warrant will state whether he is to be
held by the police in custody or released on bail, but if, as is much more
common, he is arrested without a warrant, the police must decide whether or

New s. 30B of PACE inserted by s. 4(7) of the 2003 Act.
276 Pre-trial criminal proceedings

not to release the suspect after charge or whilst charges are being considered by
the CPS. Before a suspect has been charged, he can only be detained in the police
station if the custody oļ¬ƒcer reasonably thinks that such detention is ā€˜necessary
to secure or preserve evidence relating to an oļ¬€ence for which he is under arrest
or to obtain such evidence by questioning himā€™ (PACE, s. 37(2)). No distinction
is made between serious and other oļ¬€ences.
After a person has been charged, he has to be released from the police station
unless his name and address are not known or the custody oļ¬ƒcer reasonably
thinks his detention is necessary for his own protection or to prevent him
causing injury to a person or damage to property or because he might ā€˜skipā€™ or
interfere with the course of justice (s. 38(1)(a)). A juvenile can be held in
custody, in addition, ā€˜in his own interestsā€™ (s. 38(1)(b)).
The Criminal Justice and Public Order Act 1994 (CJPOA) gave the police the
power to grant bail subject to conditions, similar to the power to grant bail
subject to conditions traditionally enjoyed by the court. (On the courtsā€™ power
to set conditions for bail see p. 279 below.) The power, established by CJPOA
1994, s. 27, followed a recommendation of the Runciman Royal Commission400
based on the belief that it would result in release of far more persons from police
Under CJPOA 1994, this police power to impose conditions only applied to
persons who had been charged. The Criminal Justice Act 2003 extended condi-
tional bail from the police station to persons released pending a decision about
Conditions should only be imposed if it appears to the custody oļ¬ƒcer that
they are necessary to secure that the defendant (1) surrenders to custody; (2)
does not commit further oļ¬€ences while on bail and (3) does not interfere with
witnesses or otherwise obstruct the course of justice (CJPOA, s. 27(3)). The
police, unlike the court, cannot order reports to be prepared nor can the police
order the defendant to live in a bail hostel.
The conditions of bail can be made more onerous or less onerous by the orig-
inal or another custody oļ¬ƒcer (ibid).
The CJPOA, s. 29 gave the police a power to arrest someone who did not
answer to police bail.
The great majority of those arrested are bailed by the police. This applies even
to arrests for indictable oļ¬€ences. In 2005, four-ļ¬fths (80 per cent) of those who
were arrested for indictable oļ¬€ences, were bailed from the police station.402

Bail decisions by courts
When a court adjourns a case ā€“ whether overnight or for a week or a month ā€“
it has to decide whether the defendant should be remanded on bail or in

400 401
Runciman, p. 73, para. 22. See new s. 37D(3) inserted by Sch. 2, para. 3.
Criminal Statistics 2005, Home Oļ¬ƒce, RDS, 19/06, Table 4.2, p. 76.
277 Bail or remand in custody

custody. Until the Bail Act 1976 the system of bail was to permit the release of
the defendant, usually on his own recognisance (his promise to pay a stated sum
of money if he absconded and was caught) and often also the promise by
sureties that they too would pay a stated sum of money in the same event. (In
the English system no money has to be provided by a surety unless the defen-
dant actually ā€˜skipsā€™.) Bail could be granted either with or without conditions.
Police objections to bail could be based on a variety of grounds ā€“ for example,
the likelihood that the defendant would abscond, would interfere with wit-
nesses or would commit further oļ¬€ences.

The Bail Act 1976
Statutory presumption of bail The Bail Act 1976 created a statutory presumption
of bail for remand cases (including remands after conviction for reports to be
made). This means that the court must grant bail unless one of the statutory
exceptions applies ā€“ even if the defendant does not apply for bail (s. 4).403
The main exceptions are set out in the Bail Act. They provide that a court
need not grant bail to a person charged with an oļ¬€ence punishable with impris-
onment if the court is satisļ¬ed that there are substantial grounds for believing
that, if released on bail, the defendant would (1) fail to appear; (2) commit an
oļ¬€ence while on bail or (3) obstruct the course of justice. Bail also need not be
granted if the court thinks he ought to stay in custody for his own protection
(or, in the case of a juvenile, for his own welfare), or if there has been insuļ¬ƒcient
time to obtain enough information about the defendant for the court to reach
a decision, or he has previously failed to answer to bail.404
In determining whether it is likely that the defendant would skip or commit
an oļ¬€ence or obstruct justice, the court should have regard to (1) the nature and
seriousness of the oļ¬€ence (and the probable way the court will deal with the
defendant); (2) the character, antecedents, associations and community ties of
the defendant; (3) his record with regard to any previous grant of bail; and (4)
except where the remand is for reports, the strength of the evidence against
Exceptions to the statutory presumption In the case of someone charged with
an oļ¬€ence punishable with imprisonment who is remanded for reports, bail
need not be granted if it appears to the court impracticable to complete the
inquiries or make the report without keeping the defendant in custody.406
Where the defendant is charged with an oļ¬€ence not punishable with impris-
onment, the permissible grounds for refusing bail are narrower. He can be

The importance of the presumption was shown by the results of a study carried out over six
months in Cardiļ¬€. There were almost 500 cases (496). In 395 the police did not object to bail,
nothing was said about bail on behalf of the defendant and bail was simply granted. M.J.
Doherty and R. East, ā€˜Bail Decisions in Magistratesā€™ Courtsā€™, 25 British Journal of Criminology,
1985, Table 2, p. 256. Bail Act 1976, Sch. 1, Part I, paras. 2ā€“6.
Schedule 1, Part I, para. 9. For criticism of the structure of the Bail Act provisions see
Criminal Law Review, 1987, pp. 438ā€“9 and 1993, p. 1. Schedule 1, Part I, para. 7.
278 Pre-trial criminal proceedings

refused bail if he has previously failed to answer to bail and if the court believes,
in view of that failure, that he will again fail to surrender to custody if released
on bail.407
The CJPOA, s. 25 provided that anyone on a charge of murder, attempted
murder, manslaughter, rape or attempted rape who had previously been con-
victed for one of those oļ¬€ences, in such cases bail was not permitted at all, but
this absolute prohibition only lasted four years before it was removed by the
Crime and Disorder Act 1998, s. 56. This allows bail in such cases if the court
ļ¬nds it is justiļ¬ed by ā€˜exceptional circumstancesā€™.408 The CJPOA, s. 25 was con-
trary to the European Convention on Human Rights.409 Despite doubts raised
in some quarters,410 the Law Commission concluded that the revised s. 25 could
be interpreted compatibly with the Convention on the basis that where the
defendant would not pose a real risk of committing a serious oļ¬€ence on bail that
would constitute ā€˜an exceptional circumstanceā€™.411
Of greater practical signiļ¬cance was s. 26 of the CJPOA which removed the
statutory presumption of bail with regard to anyone charged with an oļ¬€ence
which is not a purely summary oļ¬€ence where the alleged oļ¬€ence occurred while
the defendant was on bail. This was to deal with the alleged scandal of so-called
ā€˜bail banditsā€™ ā€“ on which see p. 286 below. The court was not bound to refuse
bail in such cases; it simply was not subject to the statutory presumption in
favour of bail. The Law Commission recommended that this provision might
conļ¬‚ict with the ECHR and that it should be amended to make it clear that
oļ¬€ending on bail was only one of the considerations to be taken into account
rather than being in itself an independent ground for refusing bail.412 This rec-
ommendation was accepted by the Government and the necessary amendment
was made in the Criminal Justice Act 2003, s. 14 which provides that the court
should give that matter ā€˜particular weightā€™.413
The same Act however created a new restriction on the grant of bail to drug
users. The Explanatory Notes accompanying the Act said (para. 148) there was
a concern that such oļ¬€enders if granted bail would merely reoļ¬€end in order to
fund their drug use. Accordingly the Act states that an alleged oļ¬€ender aged eigh-
teen or over who has been charged with an imprisonable oļ¬€ence will not be
granted bail where three conditions exist unless he demonstrates that there is no
signiļ¬cant risk of his committing an oļ¬€ence while on bail. The three conditions

Chapter 1, Part II, para. 2.
For a decision that bail does not have to be granted to such a defendant even though the
custody time limit had expired and had not been extended because of the prosecutionā€™s failure
to act with due diligence see R (O) v. Harrow Crown Court [2006] UKHL 42, [2006] 3 All ER
1157. CC v. United Kingdom [1999] Crim LR 228.
See, for instance, P. Leach, ā€˜Automatic Denial of Bail and the European Conventionā€™, Criminal
Law Review, 1999, pp. 300ā€“5.
Bail and the Human Rights Act 1998, Law Com. No. 269, 2001, para. 8.45. This view was
upheld by the Divisional Court in R (on the application of O) v. Harrow Crown Court [2003]
EWHC 868 Admin. Law Com. No. 269, 2001, para. 4.12.
Inserting new para. 9AA(2) into the Bail Act 1976, Sch. 1, Part I.
279 Bail or remand in custody

are that there is drug test evidence that he has a Class A drug in his body, the
court is satisļ¬ed that there are substantial grounds for believing that misuse of a
Class A drug caused or contributed to the alleged oļ¬€ence and he refuses to
undergo an assessment as to his drug dependency.
Bail on condition If bail is granted, it can be conditional or unconditional.
Unconditional bail means that the defendant must simply surrender to the
court on the appointed date. Failure to do so without reasonable cause is an
oļ¬€ence (s. 6(1)) punishable in the magistratesā€™ court with three monthsā€™ impris-
onment and/or a ļ¬ne, or in the Crown Court with twelve monthsā€™ imprison-
ment or a ļ¬ne.
Conditions can be attached where the court thinks it is necessary to ensure
the defendantā€™s presence at court, or so that he does not commit further oļ¬€ences
or interferes with witnesses or obstruct the course of justice, or to ensure that
he makes himself available for reports or for an interview with lawyers.414 The
Criminal Justice Act 2003 added a further ground ā€“ the protection of the defen-
The most common conditions relate to such matters as reporting to the
police daily or weekly, handing in oneā€™s passport, living in particular premises
or with particular persons, or not associating with particular persons or not
going to particular places. In 2001, electronic tagging was added as a possible
condition for juvenile defendants.416 In R (on the application of Crown
Prosecution Service) v. Chorley Justices the Divisional Court upheld the lawful-
ness of a ā€˜door steppingā€™ condition, under which the defendant was subject to a
curfew backed by a condition that he had to show himself at the door if asked
to do so by the police.417
It seems that conditions are imposed on about two-thirds of grants of bail.418
There was previously no right of appeal as such against conditions imposed
on the grant of bail. Lord Justice Auld in his Review said this was sensible ā€˜oth-
erwise the appellate process could be corrupted by endless wrangling over con-
ditionsā€™,419 but he recommended that the defendant should be given a right of
appeal against conditional grants of bail in respect of conditions to live away
from home and to provide sureties or to give security (on which see below).420
This recommendation was accepted by the Government and a provision to give

Section 3(6). The last category was added by the Crime and Disorder Act 1998, s. 54(2).
Section 13(1), following the recommendation of the Law Commission Report, n. 411 above,
para. 9A.27.
Criminal Justice and Police Act 2001, s. 131 adding new s. 6ZAA to the Bail Act 1976.
[2002] EWHC 2162 Admin, (2002) 166 JP 764. For a discussion suggesting that the condition
is useless see P. Tain, ā€˜Shut that Doorā€™, 146 Solicitorsā€™ Journal, 20 December 2002, p. 1155.
R. Morgan and N. Russell, The Judiciary in the Magistratesā€™ Court (Home Oļ¬ƒce, RDS
Occasional Paper No. 66, 2000) p. 49. See generally B.P. Block, ā€˜Bail Conditions: Neither
Logical nor Lawfulā€™, 154 Justice of the Peace, 1990, p. 83; J.N. Spencer, ā€˜Bail Conditions: Logical
or Illogical?ā€™, 154 Justice of the Peace, 24 March 1990, p. 180; J.W. Raine and M.J. Willson, ā€˜The
Imposition and Eļ¬€ectiveness of Conditions in Bail Decisionsā€™, 159 Justice of the Peace, 3 June
419 420
1995, pp. 364ā€“7. Auld, Ch. 10, para. 88, p. 424. Ibid.
280 Pre-trial criminal proceedings

it eļ¬€ect was included in the Criminal Justice Act 2003 (s. 16(3)) which also
extended the right of appeal to conditions of curfew and electronic tagging.
The Bail Act 1976 did not create an oļ¬€ence of breaking conditions imposed
by the court, but s. 7(3) gives the police a power to arrest a defendant on con-
ditional bail where they reasonably suspect that he is likely to break the condi-
tions or that he has already done so. Anyone arrested under this subsection must
be brought before a justice of the peace within twenty-four hours. The justice
of the peace may then reconsider the question of bail. If he is not brought before
the magistrates within twenty-four hours, they cannot remand him in custody
since they have no jurisdiction over him.421
It has been held that a hearing to deal with alleged breach of bail conditions
is not a hearing of a criminal oļ¬€ence so as to give the accused rights under
Article 6 (right to a fair trial) of the ECHR and that although Article 5 (right to
liberty and security) is applicable, it does not impose any new procedural
requirements, but the court must take proper account of the quality of the
material available to it.422
Sureties The Bail Act 1976 abolished personal recognisances whereby the
defendant agreed to pay a sum of money if he failed to appear on the appointed
day. The only exception was where the court thought there was a danger the
defendant might go abroad, in which case he could be asked to give monetary
security. But the Crime and Disorder Act 1998, s. 54(1) restored the general
power to order the defendant to give a personal recognisance. Giving a personal
recognisance does not require the production of the actual money or even a
bond ā€“ only providing suļ¬ƒcient evidence to satisfy the court that one has it.
The Bail Act preserved the ancient right of the court to ask for sureties as a
condition of bail. The sureties promise to pay in the event that the defendant
does not turn up. The court then has a discretion as to whether to order that the
amount put up by the sureties be forfeited (ā€˜estreatedā€™). The Crime and
Disorder Act 1998, s. 55 changed the position by making the suretyā€™s recogni-
sance forfeit automatically if the defendant fails to appear, but the court then
ļ¬xes a hearing to enable the surety to show cause why he should not be ordered
to pay the sum in which he was bound.423
Standing surety for someone can have catastrophic consequences. In a case
in December 1982, for instance, Bow Street magistratesā€™ court demanded
payment of Ā£120,000 from a travel agent who promised that amount as surety
for two men he hardly knew charged with VAT frauds of over Ā£20 million. For
a more lenient attitude see R v. Crown Court at Reading, ex p Bello.424 The

R v. Governor of Glen Parva Young Oļ¬€ender Institution, ex p G [1998] 2 All ER 295.
R (on the application of the DPP) v. Havering Magistratesā€™ Court [2001] 1 WLR 805, [2001]
Crim LR 902, Div Ct.
For the principles applied by the courts see R v. Uxbridge Justices, ex p Heward-Mills [1983] 1
WLR 56; R v. Southampton Justices, ex p Green [1976] QB 11 and A. Eccles, ā€˜New
Developments in the Law of Forfeiture of Recognisanceā€™, 146 Justices of the Peace, 1982, p. 146.
[1992] 3 All ER 353.
281 Bail or remand in custody

Divisional Court upheld the judgeā€™s order that the surety lose Ā£5,000, which was
half the sum he had agreed to stand for, even though he was entirely blameless.
The Court of Appeal disagreed. The court should always consider the question
of fault. (ā€˜If it was satisļ¬ed the surety was blameless throughout it would then
be proper to remit the whole of the amount of the recognisanceā€™.) However, in
R v. Crown Court at Maidstone, ex p Lever 425 the Court of Appeal held that the
absence of culpability on the part of the surety was not by itself a reason to
reduce or remit entirely the forfeiture of a recognisance if the defendant
absconded. It upheld forfeiture even though the surety had been in no way at
In ex p Bello (above) the Court of Appeal held that the surety had to be
informed of the date when the defendant was required to attend at court. Since
he had not been so informed that was in itself suļ¬ƒcient ground to allow the
appeal. See also R v. Crown Court at Wood Green, ex p Howe426 holding that
courts should consider the suretyā€™s ability to pay when deciding how much of
the sum promised should be forfeited.
The suretyā€™s responsibilities cease when the trial starts. In 1990, the ļ¬nancier
Asil Nadir ļ¬‚ed Britain for Cyprus after he had been arraigned at the start of his
trial for fraud oļ¬€ences. The judge, Tucker J, required a Mr Guney who had stood
as surety for Ā£1 million to forfeit Ā£650,000. The Court of Appeal held that since
from the moment that the defendant was arraigned at the start of the trial the
surety was no longer at risk, the decision to forfeit the suretyā€™s money had been
It is a criminal oļ¬€ence to agree to indemnify a surety ā€“ for example, where
the defendant or his associates agree to reimburse the surety if he is asked by the
court to pay the money he has promised to pay (Bail Act 1976, s. 9). Such an
agreement is treated as a conspiracy to pervert the course of justice.
The Bail Act provides that a surety can be relieved of his obligations if he noti-
ļ¬es the police that the bailed person is unlikely to surrender. The police can then
make an arrest without a warrant.428
Procedural formalities The Act requires that the bail decision be recorded
and that reasons must be given to the defendant if it is refused or if conditions
are attached to the grant of bail. Reasons must also be given if bail is granted
over the objections of the prosecution.429 If the defendant is unrepresented
and is refused bail, he must be told of his right to apply to a higher court for bail
(s. 5).
What determines the decision on bail? Both the theory and law of bail is that
the decision as to whether the defendant is remanded in custody or on bail is
made by the court, but in practice the decision is likely actually to be determined

425 426
[1995] 2 All ER 35. [1992] 3 All ER 366.
R v. Central Criminal Court, ex p Guney [1996] 2 All ER 705.
However, see R v. Crown Court at Ipswich, ex p Reddington [1981] Crim LR 618 establishing
that the surety is not automatically relieved simply by going to the police.
Criminal Justice and Police Act 2001, s. 129.
282 Pre-trial criminal proceedings

by other actors in the criminal justice system. In a study by the Home Oļ¬ƒce
Research Unit it was found that the factor which was most highly correlated
with the bail rate in courts was whether the police had given the defendant bail
from the police station.430 In another study, based on 1,524 remand hearings
and court records for 2,069 cases, only 9 per cent of the remand hearings were
contested. In 85 per cent of cases the CPS did not oppose a remand on bail.
When the CPS did oppose bail, the defence did not contest the matter in 42 per
cent of those cases. In that authorā€™s view, in most cases the eļ¬€ective decision-
makers were the police, the CPS and the defence lawyers. Usually the remand
decision was made informally before the defendant appeared in court. Even
when there was a contested bail application, the magistrates generally agreed
with the CPS assessment of bail risk.431

How many bail applications?
Originally, an unconvicted person could not be remanded in custody for more
than eight days. This ensured that his case would be reconsidered every week
and repeated applications could be made to have him released by the magis-
In 1980, in R v. Nottingham Justices, ex p Davies 432 the Divisional Court held
that no fresh application for bail could be made to magistrates unless the cir-
cumstances had in some way changed since the last application.
One eļ¬€ect of the decision in the Nottingham Justices case was that even com-
petent defence counsel delayed making an application for bail lest the client
was prejudiced by the rule. As a result, a client might be remanded in custody
longer than would otherwise have been the case. See B. Brink and C. Stone,
ā€˜Defendants Who Do Not Ask For Bailā€™, Criminal Law Review, 1987, p. 152.
This article led to the Criminal Justice Act 1988, s. 154, which requires the
courts to consider bail at each hearing.433 Moreover, under s. 154, at the ļ¬rst
hearing after the defendant has been remanded in custody his lawyers can
deploy any arguments they please, whether or not they have been advanced pre-
viously, but at any subsequent hearing the court need not hear arguments heard
previously. This helped to defuse part of the problem created by the Nottingham
Justices case, but there is a doubt as to whether if the defence do not advance any
argument regarding bail at the ļ¬rst hearing they are restricted to two hearings
or whether the ļ¬rst ā€˜unarguedā€™ hearing should be disregarded and not count. It
seems that many courts adopt a strict approach and in eļ¬€ect hold that the
defendant who does not utilise his ļ¬rst opportunity of arguing for bail has
wasted it.

F. Simon and M. Weatheritt, The Use of Bail and Custody by London Magistratesā€™ Courts Before
and After the Criminal Justice Act (HMSO, 1984) p. 15.
A. Hucklesby, ā€˜Remand Decision Makersā€™, Criminal Law Review, 1997, pp. 269ā€“81. See also
her ā€˜Bail or Jail? The Practical Operation of the Bail Act 1976ā€™, 23 Journal of Law and Society,
1996, pp. 213ā€“33. [1980] 2 All ER 775.
The section added a new Part IIA to Sch. 1 of the Bail Act 1976.
283 Bail or remand in custody

Length of periods of remand
As noted, remands traditionally were for a maximum of one week. The
Criminal Justice Act 1982, s. 59 and Sch. 9 provided for the longer remand in
custody of defendants over seventeen who are legally represented even though
they are not physically before the court. The defendant could be remanded in
custody for three one-week periods providing this was explained to him when
he was ļ¬rst remanded in custody and he gave his consent. This meant that he
had to be produced at least every four weeks, but if he wished to change his
mind during that period, he could. His lawyer would not normally appear for
him in his absence either.
At ļ¬rst this was introduced as an experiment (Criminal Justice Act 1988,
s. 155), but in 1991 all courts were given the power to remand a defendant
for up to twenty-eight days at a time providing he has been remanded in
custody for the oļ¬€ence at least once before. In other words, this power cannot
be used on the ļ¬rst occasion. The purpose was to reduce court hearings, to
reduce time taking prisoners to and from courts and prisons and to save legal
aid money.434 In 1997, the power to remand the accused in custody for
twenty-eight days on the second remand was extended to defendants under
Remand hearings are nowadays often heard via video link with the prison
where the defendant is being held.

Appeals against a refusal of bail
There were three alternative methods of appealing against a refusal of bail ā€“
other than applying again to another bench of magistrates, which was consid-
erably restricted by the Nottingham Justices decision.
The ļ¬rst was to apply to the judge in chambers through a barrister or a solic-
itor. The basic procedure for such applications is set out in CPR SC79.
The alternative was to apply for assistance to the Oļ¬ƒcial Solicitor. The pris-
oner ļ¬lled out a form in prison which requested the Oļ¬ƒcial Solicitor to forward
an application to the judge in chambers. There was no oral argument. The
papers were simply presented to the judge by an oļ¬ƒcial. There was no charge
for the service.
Unsurprisingly, the chances of success were much greater through an oral
argument presented by lawyers than in appeals by the Oļ¬ƒcial Solicitor.436
The third method of seeking to obtain bail after it had been refused by
magistrates was through the Crown Court.

Magistratesā€™ Courts (Remand in Custody) Order 1991, SI 1991/2667.
Criminal Procedure and Investigations Act 1996, s. 52(2).
According to a parliamentary answer, the success rate for Oļ¬ƒcial Solicitor applications in
1980 was 9 per cent compared with 69 per cent for those privately represented (House of
Commons, Hansard, 23 November 1981, Written Answers, cols. 274ā€“5). See to like eļ¬€ect N.
Bases and M. Smith, ā€˜A Study of Bail Applications Through the Oļ¬ƒcial Solicitor to the Judge
in Chambersā€™, Criminal Law Review, 1976, p. 541.
284 Pre-trial criminal proceedings

Auld recommended that the appeal system be reformed by removal of the
right of application to a High Court judge after determination of the matter by
either magistrates or the Crown Court. Reopening of the bail issue should be
restricted to an appeal on a point of law only.437 This recommendation was
accepted and implemented in the Criminal Justice Act 2003, s. 17, but s. 16 of
the Act created a right of appeal to the Crown Court against the imposition by
magistrates of certain listed conditions of bail ā€“ such as requirements relating
to residency, provision of a surety or giving a security, curfew or electronic

Appeals against a grant of bail
The Bail (Amendment) Act 1993 gave the prosecution a right of appeal
where a magistratesā€™ court granted bail to a person who was charged with or
convicted of an oļ¬€ence carrying a sentence of ļ¬ve or more yearsā€™ imprison-
ment, or an oļ¬€ence of taking a conveyance without the ownerā€™s consent
(contrary to the Theft Act 1968, s. 12), or aggravated vehicle taking (con-
trary to the Theft Act 1968, s. 12A). The Criminal Justice Act 2003, s. 18
applied the right to any imprisonable oļ¬€ence. The right of appeal is against
the grant of bail only and therefore cannot be used to challenge conditions
In order to exercise the right the prosecution must strictly follow the set
procedure. First, the prosecution must have objected to bail during the bail
hearing (s. 1(3)). At the conclusion of the bail hearing the prosecution must
immediately438 state in open court that it proposes to exercise its right of
appeal (s. 1(4)). The clerk of the court announces the time at which this
oral notice was given and issues a warrant of detention authorising the deten-
tion of the defendant for the time being. This is also recorded in the court
If the defendant is unrepresented, the court clerk has to tell him that he has
the right to ask the Oļ¬ƒcial Solicitor to represent him at the appeal.
The prosecution must serve written notice on the court and the defendant
(not his legal representative). If this is not done within two hours, the appeal is
deemed to have been dropped (s. 1(7)).
The appeal hearing must start within forty-eight hours of the day on which
oral notice of intention to appeal was given, not counting weekends and public
holidays (s. 1(8)). The hearing is before a single judge in chambers in the Crown
Court (s. 1(9)). The defendant has no right to be present.439

Auld, Ch. 10, paras. 84ā€“7.
However, ļ¬ve minutesā€™ delay was held to be acceptable ā€“ R v. Isleworth Crown Court, ex p
Clarke [1998] 1 Cr App Rep 257, DC.
For a review of this system ļ¬ve years on by an experienced prosecutor see D. Tucker, ā€˜The
Prosecutor on the Starting Block: the Mechanics of the Bail (Amendment) Act 1993ā€™, Criminal
Law Review, 1998, pp. 728ā€“31. He suggested that the way for the CPS to avoid an unseemly
rush after an adverse decision was to decide beforehand whether an appeal would be taken.
285 Bail or remand in custody

1. Time spent in custody pre-trial or pre-sentence can generally be deducted
from the ultimate sentence. This is by virtue of s. 67(1) of the Criminal Justice
Act 1967.440
2. No compensation is paid to persons who have been remanded in custody
and then are found not guilty. By contrast, in Germany, France, Holland and
Sweden, persons who are detained and then acquitted can sometimes be com-

Causes for concern
Bail/remand in custody is a subject that perennially attracts critical comment
from all quarters.
The civil libertarians are concerned especially that:
ā€¢ ā€˜As many as something under half of those at some stage remanded in custody
pre-trial by the magistratesā€™ court or the Crown Court are either acquitted,
given non-custodial sentences or the case is not proceeded with.441)
ā€¢ There are considerable variations in the policy of diļ¬€erent courts in remand-
ing defendants on bail or in custody.
ā€¢ Bail decisions are too hasty. Research has showed 62 per cent of bail hearings
lasted less than two minutes and 96 per cent less than ten minutes. Even when
bail was refused, 38 per cent were heard in under two minutes and 87 per cent
in less than ten minutes.442
ā€¢ Remand prisoners tend to be held in highly unsatisfactory conditions in
prisons or in police cells.
ā€¢ Some remand prisoners spend very long periods of time in custody. (In 2004,
some 1,500 prisoners spent more than six months on remand of whom some
400 spent over a year in prison.443)
ā€¢ Many of those held on remand have signiļ¬cant problems ā€“ drug misuse, poor
educational attainment, mental illness and unstable accommodation are par-
ticularly prevalent among remand prisoners.444
At the same time, discontents are expressed by the police and the media:

However, this is not always the case ā€“ N. Yell, ā€˜Credit for Time Spent Remanded in Custodyā€™,
146 Justice of the Peace, 1982, p. 275; Criminal Law Review, 1986, p. 270; 131 New Law Journal,
3 October 1980, p. 937.
The 2005 ļ¬gures show 19 per cent acquitted or not proceeded with, 26 per cent given non-
custodial sentences (discharge, ļ¬ne, community sentence or suspended sentence) and 55 per
cent given immediate custodial sentences. (Criminal Statistics 2005, Home Oļ¬ƒce, RDS,
November 2006, Table 4.5, p. 79 ā€“ percentages based on 75,700 in the ā€˜Acquittedā€™ and
ā€˜Convictedā€™ categories. Persons ā€˜Otherwise dealt withā€™ or ā€˜Failed to appearā€™ are not included.)
M.J. Doherty and R. East, 25 British Journal of Criminology, 1985, Table 2, p. 256.
NOMS 2005 Caseload Statistics, Supplementary Tables, Table 8.18 ā€“ www.homeoļ¬ƒce.gov.uk/
Reducing re-oļ¬€ending amongst ex-prisoners, Social Exclusion Unit, 2002 ā€“ www.
286 Pre-trial criminal proceedings

ā€¢ Too many commit oļ¬€ences while on bail ā€“ the problem of what the media call
ā€˜bail banditsā€™.445
ā€¢ Too many people ā€˜skipā€™. (In 2005, 13 per cent of defendants who had been
bailed by magistratesā€™ courts failed to appear at court.446) (The Criminal
Justice Act 2003, s. 15 provided that someone who previously did not without
reasonable excuse surrender to custody while on bail may not be granted bail
unless the court is satisļ¬ed that there is no signiļ¬cant risk of his jumping bail
The prison authorities are concerned about the cost of remand prisoners, the
burdens they create for the prison system including the burden of escorts for
prisoners going to court, the rapid turnover in receptions and discharges, and
in terms of the problem of prison overcrowding and providing a tolerable
regime while they are in custody.

New developments
One helpful development is the Bail Information Scheme now operating in
many magistratesā€™ courts. (They began in the mid-1980s as a result of the ini-
tiative of the Vera Institute of Justice of New York.447) Under these schemes pro-
bation oļ¬ƒcers provide the CPS and the court with veriļ¬ed information about
the defendant ā€“ his employment status, where he lives, his family situation and
other community roots and the like. Research suggests that the provision of bail
information has a signiļ¬cant eļ¬€ect.448
However, in practice courts often lack the information they need. The Auld
Review said: ā€˜as to information, despite the introduction in 1998 of bail infor-
mation schemes, it is often incomplete and for that and other reasons inaccu-
rateā€™.449 A 1998 study commented on the lack of ready availability to the police,

For the facts see for instance Oļ¬€ending While on Bail: a Survey of Recent Studies (Home
Oļ¬ƒce Research and Planning Unit, Paper No. 65, 1992). This concluded that the
percentage of oļ¬€enders who were convicted of oļ¬€ences committed while on bail had
varied little over the previous decade. The studies consistently showed that 10ā€“12 per
cent of persons granted bail were convicted of oļ¬€ences committed while on bail. Six
years later another Home Oļ¬ƒce study found that the proportion was 12 per cent for
those bailed by the police and 15 per cent for those bailed by the court. (D. Brown,
Oļ¬€ending on bail and police use of conditional bail, Home Oļ¬ƒce Research Findings
No. 72, 1998.)
Criminal Statistics 2005, Home Oļ¬ƒce, RDS, 19/06, Table 4.8, p. 82.
The concept, based on pioneering work by the Vera Institute in New York, was ļ¬rst proposed
in this country by the writer in the late 1960s ā€“ see M. Zander, ā€˜Bail: A Reappraisalā€™, Criminal
Law Review, March 1967.
Bail Information Schemes: Practice and Eļ¬€ect (Home Oļ¬ƒce Research and Planning Unit,
Paper No. 69, 1992), but see M.K. Dhami, ā€˜Do Bail Information Schemes Really Aļ¬€ect
Bail Decisions?ā€™, 41 Howard Journal of Criminal Justice, 2002, pp. 242ā€“62. This study
was based on hypothetical cases presented to magistrates. The results showed no diļ¬€erence in
bail decisions but the information gave magistrates more conļ¬dence in their decisions.
Auld, Ch. 10, para. 78, p. 428.
287 Information supplied to the opponent (ā€˜disclosureā€™)

prosecutors and courts of the defendantā€™s criminal record and other relevant
Since September 1999 all remand prisons have been required and funded to
provide bail information schemes,451 but the Prison Inspectorateā€™s thematic
report in 2000 on the treatment and conditions of remand prisoners recorded
a wide variation in performance by establishments throughout the country and
poor overall performance.452
Another helpful development has been the establishment of bail hostels and
other facilities where defendants can be sent by courts. There are also a growing
number of bail support schemes usually run by probation involving arrange-
ments to help defendants on bail ā€“ through contact with bail support workers,
residence requirements, volunteer befriending schemes, debt counselling and
the like.
These more hopeful developments must be seen against a background of a
continuing huge remand population in prison, held for the most part in their
cells for twenty-three out of twenty-four hours a day.
Auld recommended that the courts take more time over bail, that better
information be provided to them and that they should always record their bail

9. Information supplied to the opponent (ā€˜disclosureā€™)
The question of advance disclosure of information by prosecution to defence
and by defence to the prosecution is one of the most important and most trou-
blesome that confronts the criminal justice system. It is important since it goes
to the question whether there has been a fair trial. Many notorious miscarriages
of justice have occurred because of a failure by the prosecution to disclose
crucial material at the time of the trial. It is troublesome since it is notoriously
diļ¬ƒcult (probably impossible) to get the actors to comply with the rules.
Disclosure by the prosecution has two aspects ā€“ ļ¬rst, the evidence it intends
to use and, secondly, material in its possession that it does not intend to use that
might in some way assist the defence (called ā€˜unused materialā€™). Disclosure by
the defence deals with the material that the defence is required to reveal about
its case before the trial.
Disclosure by the prosecution of its own case works tolerably well. The many
problems associated with disclosure relate to disclosure of unused material by
the prosecution and to defence disclosure.
The subject is covered today principally by the provisions of the Criminal
Procedure and Investigations Act 1996 (CPIA) as amended by the Criminal

R. Morgan and P. Henderson, Remand Decisions and Oļ¬€ending on Bail: Evaluation of the Bail
Process Project (Home Oļ¬ƒce Research Study No. 184, 1998).
Auld, Ch. 10, para. 71, p. 425.
Unjust Deserts, 2000, paras. 4.09ā€“4.17 ā€“ www.homeoļ¬ƒce.gov.uk/justice/prisons/inspprisons.
288 Pre-trial criminal proceedings

Justice Act 2003 (CJA 2003), the Code of Practice under the CPIA,454 the
Criminal Procedure Rules 2005, Parts 25ā€“8, the Attorney Generalā€™s Guide-
lines on Disclosure (AGā€™s Guidelines),455 the CPS Disclosure Manual (CPS
Manual)456 and decisions of the courts. In 2006, there was added a new proto-
col issued by the judges (Disclosure: A Protocol for the Control and Management
of Unused Material in the Crown Court).457
In February 2006, the Attorney General, announcing the outcome of his
review of ā€˜shaken baby syndromeā€™ cases, published a booklet entitled Disclosure:
Expertā€™s Evidence and Unused Material ā€“ Guidance Booklet for Experts.

Evidence the prosecution intend to use
Lord Justice Auld said in his 2001 Review: ā€˜the law is somewhat muddled in its
provision for advance notiļ¬cation of the prosecution case and/or evidence, but
reasonably satisfactory in its operationā€™.458
The position is diļ¬€erent for the two levels of court and for diļ¬€erent categories
of case.
Cases tried in the magistratesā€™ court The statutory duty on the prosecution in
either-way cases to supply its evidence to the defence in advance of the trial only
arises if the defence requests it. In that event the prosecution has a choice whether
to supply copies of witness statements or a summary of their statements.459
Because of the ease of photocopying, normally the statements themselves are sup-
plied. For summary-only oļ¬€ences there is no equivalent rule. The defence was
expected to manage somehow on the day without any advance notice.
The position for both types of cases changed as a result of the AGā€™s Guidelines
on Disclosure issued in November 2000.460 Technically, the Guidelines do not
have the force of law but it is clear that the Attorney General expects them to be
The Guidelines include the following bald statement (para. 57):
The prosecutor should . . . provide to the defence all evidence upon which the
Crown proposes to rely in a summary trial. Such provision should allow the
accused or their legal advisers suļ¬ƒcient time properly to consider the evidence
before it is called.461
Criminal Procedure and Investigations Act 1996 (Code of Practice) 1997 and 2005.
First issued in 1981, revised in 2000 and re-issued in revised form in April 2005. For the
current text see www.lslo.gov.uk.
See www.cps.gov.uk ā€“ Legal Guidance and Covert Law Enforcement.
www.hmcourts-service.gov.uk. Sir Igor Judge, President of the QBD, said the protocol would
overcome the problems of over-complication and delay caused by the current arrangements
for disclosure (156 New Law Journal, 24 February 2006, p. 294).
Auld, Ch. 10, para. 117, p. 445.
Magistratesā€™ Courts (Advance Information) Rules 1985, SI 1985/601, r. 4.
Disclosure of Information to Criminal Proceedings, 2000.
The 2000 Guidelines went on: ā€˜exceptionally, statements may be withheld for the protection of
witnesses or to avoid interference with the course of justiceā€™. This sentence does not appear in
the 2005 revision.
289 Information supplied to the opponent (ā€˜disclosureā€™)

This statement covers both summary-only and either-way cases tried in the
magistratesā€™ courts.462
Cases going to the Crown Court The rule for cases going to the Crown Court
was that prior to the committal proceedings in the magistratesā€™ courts the pros-
ecution had to provide the defence with copies of enough of the prosecution
evidence to constitute a prima facie case.463 Before the trial took place, or at the
latest before the end of the prosecutionā€™s case, any other evidence the prosecu-
tion intended to call also had to be handed over.
As will be seen below, when the relevant provisions of the Criminal Justice
Act 2003 are brought into force, committal proceedings will be abolished. The
new system is that cases are sent directly by the magistratesā€™ courts to the Crown
Court. In cases sent directly to the Crown Court the rule is that copies of the
prosecutionā€™s evidence must be provided to the defence forty-two days after the
ļ¬rst preliminary hearing there.464
Also, the Divisional Court has recognised a residual common law duty on
prosecutors to serve proposed evidence earlier, where it is in the interests of
justice to do so ā€“ for instance, to assist a bail application or an application to
stay the proceedings as an abuse of process.465
The need for the defence to have early advance disclosure of the prosecu-
tionā€™s case is now the greater because of changes that have been made in order
to process cases, and especially guilty plea cases, more quickly.466 These include
asking the defendant to indicate his plea before the magistrates decide whether
he should be tried at the higher or lower level (ā€˜plea before venueā€™)467 and the
rule that when someone is granted bail by the police the return date when he
is required to appear at court should, if possible, be the next sitting of the
Lord Justice Auld said time between charge and service of the prosecutionā€™s
evidence was ā€˜dead timeā€™ in the life of the case. The Philips Royal Commission
had recommended the introduction of a formal and comprehensive framework
of rules for advance prosecution disclosure of proposed evidence in all courts,
but no rules were made.469 Auld said he supported that recommendation. The
precise time scale should be prescribed by rules.470 For cases sent to the Crown
Court, regulations made in 2005 allow the prosecution seventy days from the

In his covering Foreword to the 2000 Guidelines the Attorney General highlighted this
development as one of the new Guidelinesā€™ ā€˜highly signiļ¬cant changes addressing areas not
covered by legislationā€™.
R v. Epping and Harlow Justices, ex p Massaro [1973] QB 433; R v. Grays Justices, ex p Tetley
(1979) 70 Cr App Rep 11.
Magistratesā€™ Court Act 1980, s. 5B(2)(c); Crime and Disorder Act 1998 (Service of
Prosecution Evidence) Regulations 2000, SI 2000/3305, r. 2.
R v. DPP, ex p Lee [1999] 2 All ER 737.
See D. Sunman, ā€˜Advancing Disclosure: Can the Rules for Advance Information in the
Magistratesā€™ Courts be Improved?ā€™, Criminal Law Review, 1998, pp. 799ā€“801.
467 468
CPIA, s. 49, pp. 337ā€“38 below. Crime and Disorder Act 1998, s. 46.
469 470
Auld, Ch. 10, paras. 119ā€“20, p. 446. Ibid.
290 Pre-trial criminal proceedings

day the case is sent to serve its evidence on the defence and the court. (Where
the defendant is in custody, it is ļ¬fty days.471)
Scotland In Scotland until very recently there was no equivalent provision for
advance disclosure of its case by the prosecution. Instead, in a feature of the
Scottish system that is unknown in England and most other countries, the pros-
ecution handed the defence a list of proposed prosecution witnesses. The
defence could then arrange for them to be interviewed (ā€˜precognosedā€™) and
statements taken. (A study of the eļ¬€ect of the introduction of ļ¬xed fees for
defence lawyers showed a marked decline in precognition and in pre-trial
preparation generally!472)

Evidence the prosecution do not intend to use (ā€˜unused materialā€™)
The rules regarding disclosure to the defence of material the prosecution do not
intend to use (ā€˜unused materialā€™) were formerly a mixture of common law and
guidelines laid down by the Attorney General.

Common law 1946ā€“1981
The ļ¬rst judicial pronouncement on the subject merely required the prosecu-
tion to supply the defence with the name and address of any witness they knew
could give material evidence but whom they did not intend to call as a
witness.473 There was judicial disagreement as to whether this duty extended to
the witness statements themselves.474

Attorney Generalā€™s 1981 Guidelines
In December 1981, the Attorney General issued Guidelines for trials on indict-
ment. These stated that all ā€˜unused materialā€™ should normally be made available
to the defence solicitor ā€˜if it has some bearing on the oļ¬€ence(s) charged and the
surrounding circumstances of the caseā€™.
ā€˜Unused materialā€™ for this purpose was deļ¬ned to mean (1) all witness state-
ments and documents not included in the committal bundles served on the
defence and (2) where edited statements are included in the committal bundle,
the unedited version of such statements or documents. There were stated excep-
tions: when disclosure might lead to improper pressure on the witness, where it
was untrue and where it was against the public interest on account of being ā€˜sen-
sitiveā€™, for instance, because it dealt with national security, the identity of an
informer or the source of surveillance.
Crime and Disorder Act 1998 (Service of Prosecution Evidence) Regulations 2005.
C. Tata and F. Stephen, ā€˜ā€œSwings and Roundaboutsā€: Do Changes to the Structure of Legal Aid
Remuneration Make a Real Diļ¬€erence to Criminal Case Management and Case Outcomes?ā€™,
Criminal Law Review, 2006, pp. 722ā€“41 at 725 and 728ā€“9.
R v. Bryant and Dickson (1946) 31 Cr App Rep 146; R v. Leyland Justices, ex p Hawthorn [1979]
1 All ER 209.
Dallison v. Caļ¬€ery [1964] 2 All ER 610 at 618 and 622. See also R v. Hennessey (1978) 68 Cr
App R 419 at 426.
291 Information supplied to the opponent (ā€˜disclosureā€™)

In the case of any doubt, the material ought to be submitted to counsel for
advice. A balance should then be struck between the competing values. If, for
instance, the material established the accusedā€™s innocence or even if it only
tended to show him to be innocent, it should either be disclosed in full or at least
with any sensitive passages excised. Any doubt should be resolved in favour of
disclosure. If the material was too sensitive to show to counsel, it must be sent
to the DPP.
Technically, the Guidelines were not law but the courts could treat failure to
comply with them as the basis for quashing convictions.475
Strictly, the Guidelines only applied to trials on indictment, but in 1987 the
Attorney General told the House of Commons that in summary trials the pros-
ecution were under a general duty of being fair, which required them, inter alia,
to supply to the defence any materially inconsistent statement, written or oral,
of any prosecution witness of which the prosecutor became aware at any stage.476
Whether the Attorney Generalā€™s Guidelines were being followed was another
matter. A JUSTICE Committee in December 1987 said that it was the experi-
ence of the Committee that the spirit of the Attorney Generalā€™s Guidelines on
prosecution disclosure to the defence was frequently ignored and also that the
practice of disclosure varied considerably from area to area.477

Common law 1989ā€“1995
The law relating to prosecution disclosure of unused material developed rapidly
in the years after 1989 with the result that the Attorney Generalā€™s Guidelines
were to a signiļ¬cant extent displaced as being too narrowly deļ¬ned.
The courts held that unused material that had to be disclosed to the defence
ā€¢ All preparatory notes and memoranda which led to the making of witness
ā€¢ Police oļ¬ƒcersā€™ notebooks, observation logs, crime reports, photoļ¬ts, artistsā€™
impressions from all witnesses, notes of oral descriptions and car registration
ā€¢ Any material that was relevant even if it was not admissible.480
These decisions required the disclosure of whole categories of material leaving
it for the defence to see whether there was anything that was both relevant and
helpful to its case.
(The issue of sensitive material is dealt with separately below ā€“ see p. 297.)
See, for instance, R v. Lawson (1989) 90 Cr App Rep 107.
House of Commons, Hansard, 5 November 1987, col. 713. The Divisional Court held that this
view was correct in R v. Bromley Magistratesā€™ Court, ex p Smith and Wilkins, R v. Wells Street
Magistratesā€™ Court, ex p King [1995] 4 All ER 146.
JUSTICE, A Public Defender, 1987, para. 25.
Ruling of Mr Justice Henry in Saunders (ā€˜Guiness 1ā€™), August 1998.
Ward [1993] 2 All ER 577.
Preston [1993] 4 All ER 638 at 664. See also Keane (1994) 99 Cr App Rep 1.
292 Pre-trial criminal proceedings

Runciman Royal Commission
The Runciman Royal Commission was persuaded by evidence, mainly from the
police, that the disclosure regime created by the courts resulted in some cases in
excessive burdens on the prosecution:
The defence can require the police and prosecution to comb through large
masses of material in the hope either of causing delay or of chancing upon
something that will induce the prosecution to drop the case rather than to have
to disclose the material concerned . . .
. . . We strongly support the aim of the recent decisions to compel the pros-
ecution to disclose everything that may be relevant to the defenceā€™s case, but
we accept the evidence that we have received that the decisions have created
burdens for the prosecution that go beyond what is reasonable. At present
the prosecution can be required to disclose the existence of matters whose
potential relevance is speculative in the extreme. Moreover, the sheer bulk of
the material involved in many cases makes it wholly impracticable for every
one of what may be hundreds of thousands of individual transactions to be
The Runciman Royal Commission proposed a new approach consisting of two
stages: ā€˜primary disclosureā€™ which basically would be automatic and ā€˜secondary
disclosureā€™ if the defence could persuade the court of its relevance. The
Commissionā€™s view of the scope of primary disclosure was however not narrow.
It would cover ā€˜all material relevant to the oļ¬€ence or to the oļ¬€ender or to the
surrounding circumstances of the caseā€™.482

The Criminal Procedure and Investigations Act 1996 and the Code of Practice
The recommendations of the Runciman Royal Commission were implemented
(with some modiļ¬cation) in the Criminal Procedure and Investigations Act
1996 (CPIA). These provisions, together with regulations483 and the Code of
Practice, came into force in April 1997.
There is general agreement that the system did not work well.484

Runciman, Ch. 6, paras. 42, 43 and 49, p. 95.
Runciman, Ch. 6, para. 51, p. 95.
Crown Court (Criminal Procedure and Investigations Act 1996) (Disclosure) Rules 1997;
Magistrates Court (Criminal Procedure and Investigations Act 1996) (Disclosure) Rules 1997;
Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits)
Regulations 1997.
See in particular J. Plotnikoļ¬€ and R. Woolfson, A Fair Balance?: Evaluation of the Operation of
Disclosure Law (Home Oļ¬ƒce, RDS Occasional Paper No. 76, 2001); Crown Prosecution
Service Inspectorate, The Inspectorateā€™s Report on the Thematic Review of the Disclosure of
Unused Material and H. Quirk, ā€˜The Signiļ¬cance of Culture in Criminal Procedure Reform:
Why the Revised Disclosure Scheme Cannot Workā€™, 10 Evidence and Proof, 2006, pp. 42ā€“59.
The writerā€™s commentary on Lord Justice Auldā€™s Review of the Criminal Courts has a lengthy
section dealing with the issue of disclosure and its problems ā€“ www.dca.gov.uk/criminal/
auldcom/ar/arindex.html. See also M. Redmayne, ā€˜Disclosure and its Discontentsā€™, Criminal
Law Review, 2004, pp. 441ā€“62 and D. Ormerod, ā€˜Improving the Disclosure Regimeā€™, 7
Evidence and Proof, 2003, pp. 102ā€“29.
293 Information supplied to the opponent (ā€˜disclosureā€™)

Auld on disclosure
Lord Justice Auld in his report in 2001 cited the report of the CPS Inspectorate
in its Thematic Review of the Disclosure of Unused Material which found ā€˜that
the 1996 Act was not working as Parliament intended and that its operation did
not command the conļ¬dence of criminal practitionersā€™.485 It highlighted the
failure of police disclosure oļ¬ƒcers to prepare full and reliable schedules of
unused material, undue reliance by the prosecutors on disclosure oļ¬ƒcersā€™
schedules and assessment of what should be disclosed and the ā€˜awkward split of
responsibilities between the police and the CPS in the task of determining what
should be disclosedā€™.486
Joyce Plotnikoļ¬€ and Richard Woolfson in their research study487 had reached
the same conclusions. (ā€˜Our ļ¬ndings conļ¬rmed the conclusion of the CPS
Inspectorateā€™s Thematic Review that poor practice in relation to disclosure was
widespreadā€™.488) They had found that Government objectives for improvement
in eļ¬ƒciency had not been achieved, that in the Crown Court the average length
of trial had not fallen as hoped and that the scheme was expensive. (ā€˜It had been
expected that it would be ā€œcost-neutralā€ for the criminal justice system, but in
fact it was so resource intensive that it cost the CPS as much or more than it
saved the police and produced no identiļ¬able, signiļ¬cant savings for the
courtsā€™.489) Auld concluded with this damning assessment of the system:
To summarise: the main concerns about the disclosure provisions of the 1996
Act are: a lack of common understanding within the CPS and among police
forces of the extent of disclosure required, particularly at the primary stage; the
conļ¬‚ict between the need for a disclosure oļ¬ƒcer suļ¬ƒciently familiar with the
case to make a proper evaluation of what is or may be disclosable and one
suļ¬ƒciently independent of the investigation to make objective judgment about
it; the consignment of the responsibility to relatively junior oļ¬ƒcers who are
poorly trained for the task; general lack of staļ¬ƒng and training for the task in
the police or the CPS for what is an increasingly onerous and sophisticated exer-
cise; in consequence, frequent inadequate and late provision by the prosecution
of primary disclosure; failure by defendants and their legal representatives to
comply with the Actā€™s requirements for giving the court and the prosecutor ade-
quate and/or timely defence statements and lack of eļ¬€ective means of enforce-
ment of those requirements; seemingly and confusingly diļ¬€erent tests for
primary and secondary prosecution disclosure; and the whole scheme, whether
operated eļ¬ƒciently or otherwise is time-consuming and otherwise expensive for
all involved. The outcome for the criminal justice process is frequent failure to
exchange adequate disclosure at an early stage to enable both parties to prepare
for trial eļ¬ƒciently and in a timely way.490
In Auldā€™s view the best way forward was ļ¬rst to require automatic disclosure at
the primary stage of some forms of documents (crime reports, incident report

485 486 487
Auld, Ch. 10, para. 163, p. 463. Ibid. Note 484 above.
488 489 490
Auld, Ch. 6, para. 164, p. 463. Ibid. Auld, Ch. 6, para. 167, p. 464.
294 Pre-trial criminal proceedings

books, police oļ¬ƒcersā€™ notebooks, custody records, draft versions of witness
statements where the draft diļ¬€ers from the ļ¬nal version and expertsā€™ reports).
It could also include certain types of material by reference to their subject
matter as distinct from the category of document.
Beyond that he favoured building on and improving the present system of
two-stage prosecution disclosure coupled with greater defence disclosure:
ā€¢ The test for primary and secondary prosecution disclosure should be made
the same.
ā€¢ The duty of recording unused material should remain with the police but
with improved training, rigorous ā€˜spot auditsā€™ by HM inspectors and non-
compliance being treated as a police disciplinary oļ¬€ence.
ā€¢ Prosecutors should carefully check police schedules against witness state-
ments and unused material.
ā€¢ Transferring from the police to prosecutors responsibility for identifying dis-
closable material.491

The Criminal Justice Act 2003 and further changes
Further changes were made by the Criminal Justice Act 2003 (CJA 2003), by the
2005 revision of both the Code of Practice and the Attorney Generalā€™s
The provisions of prosecution and defence disclosure are closely linked
though they cover diļ¬€erent types of material. The duty of prosecution material
to be disclosed under the rules relates to unused material, i.e. the material the
prosecution does not intend to use. The duty of the defence to disclose mater-
ial relates to its case. (For the treatment of the defence disclosure provisions see
below at p. 302.) The prosecutionā€™s duty to disclose its own evidence in the case
was unchanged by the legislation.
Disclosure oļ¬ƒcer The Code of Practice provides for a disclosure oļ¬ƒcer,
deļ¬ned as the person responsible for examining material retained by the police
during the investigation, for revealing material to the prosecutor and certifying
that he has done so and for disclosing material to the defence (para. 2.1).
Police duty to record information The police are under a duty to record and
retain information and material generated in the course of an investigation. The
Code of Practice deals with the length of time for which material has to be

Plotnikoļ¬€ and Woolfson, n. 484 above at p. 134, recommended to the contrary that primary
responsibility remain with the police ā€“ a view shared by the writer.
The Attorney Generalā€™s Guidelines had been reissued in 2000. Their main focus was to tighten
up existing procedures and to clarify the responsibilities of police investigators and disclosure
oļ¬ƒcers, prosecutors and defence practitioners. For the most part they restated and
emphasised what was already the position. New provisions included the statement (as seen
above) that prosecutors must disclose all their evidence in summary cases, that open access
must be given to the defence in respect of material seized but not examined by the
prosecution and a list of items that would normally be disclosed as a matter of course if
relevant to the defence.
295 Information supplied to the opponent (ā€˜disclosureā€™)

retained. (Thus, where a person has been convicted and given a custodial sen-
tence, all relevant material must be retained at least until he has been released
from custody (para. 5.9).)
Two schedules Material which may be relevant to an investigation and which
the disclosure oļ¬ƒcer believes will not form part of the prosecution case must
be listed on a schedule (para. 6.2). If any of the material is ā€˜sensitiveā€™ ā€“ deļ¬ned
now as disclosure of which the oļ¬ƒcer believes ā€˜would give rise to a real risk of
serious prejudice to an important public interestā€™ (para. 6.12)493 ā€“ it must be
listed on a separate schedule (para. 6.4). Exceptionally, where disclosing the
material on the list would be likely to lead to loss of life or directly threaten
national security, the existence of the material must be revealed to the prosecu-
tor separately (para. 6.13).
Schedules have to be prepared in respect of all cases triable only on indict-
ment and of cases triable either way that are likely to be tried on indictment and
of summary-only cases if the defendant is likely to plead not guilty. If the defen-
dant changes his mind and pleads not guilty at the last moment, the disclosure
schedule has to be prepared as soon as is reasonably practicable (para. 6.6).
Both schedules must be given by the disclosure oļ¬ƒcer to the prosecution
lawyers (para. 7.1). The lawyers must also be given copies of material with infor-
mation given by an accused person explaining the oļ¬€ence, any material casting
doubt on the reliability of a confession or the reliability of a prosecution witness
and any material which the investigator believes may fall within the test for
prosecution disclosure (para. 7.3).
The trouble with the schedules, as research has shown, is that they are fre-
quently incomplete or insuļ¬ƒciently detailed to be useful. In Plotnikoļ¬€ and
Woolfsonā€™s study,494 lawyer prosecutors judged the information on the princi-
pal schedule to be poor in the majority of cases and good in only 3 per cent.
Moreover, prosecutors generally do not have either the time or the inclination
to pursue the matter further by going back to the police for further information.
In the result, frequently they are not in a position to make informed decisions
about what should and should not be disclosed.
That is so in ordinary cases. The problem is obviously compounded in cases
where the material is unusually heavy. The Governmentā€™s Fraud Review pub-
lished in July 2006 highlighted the fact that vast masses of material were now
held in digital form on computers, mobile phones, Blackberries and personal
digital assistants.495 The Computer Forensic Unit at the Serious Fraud Oļ¬ƒce

In the previous version of the Code sensitive material was deļ¬ned simply as ā€˜any material
which [the disclosure oļ¬ƒcer] believes it is not in the public interest to discloseā€™. The new
deļ¬nition is clearly intended to narrow the concept of sensitive material. A dozen examples
are given in para. 6.12 ā€“ material that would compromise national security, the identity of
informants, methods of covert surveillance etc. Note 484 above at p. 29.
In a ninety-four day fraud trial, 6,000 man hours (250 complete days) had been spent dealing
with disclosure and the defence had spent 2,643 hours just reading the disclosed material.
(Fraud Review, p. 213, para. 9.45.)
296 Pre-trial criminal proceedings

had calculated that the average case it dealt with now had between 5.3 and 6.7
terabytes of digital material to be analysed. (Five terabytes is roughly the equiv-
alent of a pile of paper sixty-two miles high or twelve Mount Everests.496)
Prosecution disclosure The CPIA, s. 3(1) required the prosecutor to give
ā€˜primary disclosureā€™ of any prosecution material ā€˜which in the prosecutorā€™s
opinion might undermineā€™ the case for the prosecution against the accused, or
alternatively to give the accused a written statement that there was no material
of that description. After defence disclosure (see below) had been made, the
CPIA required ā€˜secondary disclosureā€™ of any prosecution material not already
disclosed which ā€˜might be reasonably expected to assist the accusedā€™s defence as
disclosed by the defence statementā€™ or give the accused a written statement that
there was no such material.497
The CJA 2003, s. 32 changed the deļ¬nition of what has to be disclosed from
the subjective test in the CPIA to an objective test ā€“ material that ā€˜might rea-
sonably be considered capable of underminingā€™ the prosecutionā€™s case or ā€˜of
assisting the accusedā€™.
The CJA 2003 also abolished ā€˜primaryā€™ and ā€˜secondaryā€™ disclosure. Primary
disclosure became ā€˜initial disclosureā€™498 and secondary disclosure became a
ā€˜continuing duty of disclosureā€™ under which the prosecutor must at all times
(and especially after the delivery of defence disclosure) keep under review
whether there is prosecution material that ought to be disclosed.499 In 2004 in
R v. H and R v. C500 the House of Lords said the golden rule was full disclosure


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