Case Management and Disclosure — SQE1 FLK2 Criminal Law and Practice

A woman has pleaded not guilty to criminal damage. Her solicitor has been waiting for initial disclosure. What arrives is a single-page letter from the prosecutor, signed and dated. The unused material has been reviewed, it says. There is nothing which might reasonably be considered capable of undermining the prosecution case or of assisting the defence.

Nothing else is enclosed. No documents, no schedule, no bundle. Trial is in six weeks. Has the prosecution failed to do its job? No. That letter is exactly what the Act requires, it discharges the duty, and it starts a clock the defence cannot afford to miss.

This is Case Management and Disclosure. Keep that letter in mind. We come back to it.

Here is the route. Case management first, in both courts, and who controls the timetable. Then the architecture of disclosure. Then the prosecutor's initial duty and the test that governs it. Then the two schedules of unused material, and what happens to the sensitive one. Then the defence statement and what failing to serve it costs. And finally getting material out of people who are not parties at all.

Start with who is in charge. Under Part 1 of the Criminal Procedure Rules the overriding objective is that criminal cases be dealt with justly, which includes efficiently and expeditiously. Rule 3.2 puts the court under a duty to manage the case actively. Rule 1.2 puts each party under a duty to assist it, and to alert the court at once to anything that might affect the timetable.

So directions are orders of the court, not an arrangement between the parties. Two solicitors agree by email that the dates should slip by a month, the officer in the case being on leave. They tell the court the new timetable is settled. It is not settled. Only the court can vary its own directions, and the application must come before the date passes, not after.

Now the two courts. In the magistrates' court, case management starts at the Early Administrative Hearing, the first hearing after charge. It sets the timetable: plea, dates for prosecution disclosure and for the defence statement, and it deals with bail and legal aid.

For an either-way offence the court takes plea before venue. Guilty, and it moves to sentence. Not guilty, and it decides whether to keep the case or send it up. An indictable-only offence always goes to the Crown Court, but the magistrates still deal with initial case management and with bail before it goes.

In the Crown Court the hearing that matters is the Plea and Trial Preparation Hearing. It happens shortly after the case is sent, it is governed by Part 3 of the Rules and the Criminal Practice Directions 2023, and it does four things.

It confirms the plea. It identifies the issues in the case. It sets a timetable. And it fixes a trial date. If the plea is guilty, sentence may follow there and then. If not guilty, the judge hears both sides on what the real issues are and how long the trial will take.

The timetable is worth learning as a list. Service of the prosecution case, including the schedule of unused material. The defence statement. Any further prosecution disclosure in response. Dates for pre-trial applications, so bad character, hearsay, exclusion of evidence. And the trial estimate and the trial date.

After that the court can hold further case management hearings, and many Crown Courts hold a trial readiness review shortly before trial. That is a final check that both sides are ready and every pre-trial application has been dealt with. It exists because trials used to collapse on the first morning.

Now disclosure, the other half of this topic and the harder one. The framework is Part 1 of the Criminal Procedure and Investigations Act 1996. It is supplemented by a Code of Practice, issued under s.23, telling investigators how to handle and record material.

One distinction underpins everything. Used material is the prosecution case, and it is served as the case papers. Unused material is everything else the investigation gathered: statements from people who will not be called, pocket notebooks, negative forensic results, footage that was watched and put aside. Not all of it is disclosed. All of it must be recorded and considered.

The prosecutor's first duty is in s.3, and it has two limbs. Under the first, disclose any unused material which might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused. Under the second, where there is no such material, give the accused a written statement saying so.

Which is our letter. A nil return is a form of compliance, not a failure, and the duty is discharged by sending it. It also matters for what it sets running. Initial disclosure having been made, the defence statement falls due, and it is the defence statement that triggers everything after.

Note too that the duty is automatic. It arises once a not guilty plea is entered, and it does not wait for the defence to ask for anything.

So what does the test actually catch? Watch how low the threshold is. An officer's pocket notebook records that an hour after the incident the complainant described her attacker as clean-shaven and around six feet tall. The defendant has a full beard and is five feet six. Her later witness statement contains no description at all.

The officer says the entry is probably a garbled note and the prosecutor is inclined to believe him. Disclose it anyway. Capable of undermining is not the same as would undermine, and the material need not be decisive. Whether the note is garbled is for the jury, not for the prosecutor to decide in advance.

Behind the prosecutor stands the disclosure officer, appointed for each investigation under the Code. The officer catalogues everything gathered, decides what is sensitive, retains it securely, prepares the schedules, and reveals to the prosecutor anything that may satisfy the test. Note the division of labour. The officer schedules and reveals. The prosecutor decides.

Retention is broader than people expect. Every witness statement, used or not. Pocket notebooks and duty rosters. Footage even where it shows nothing relevant. Forensic results including the negative ones. Records of identifications including the ones that failed. And anything casting doubt on a prosecution witness.

That material goes onto two schedules, and the difference between them matters. The MG6C is the schedule of non-sensitive unused material. It is served on the defence, item by item, each with a short description and a code showing whether it has been disclosed or withheld.

And service of the schedule is not the end of it. The defence may ask to inspect what is listed, and should. The prosecutor's view that an item fails the test is only a view. Your client says a man in a red jacket threw the first punch. An entry reading footage viewed, nothing of note, is exactly what you ask to see for yourself.

The MG6D is the schedule of sensitive unused material, and it works completely differently. It is not served on the defence at all. It goes to the prosecutor, who considers whether the material satisfies the disclosure test.

And if it does, but disclosing it would damage the public interest, the prosecution still cannot simply keep it back. That is the single most important sentence in this topic. Only the court can permit disclosable material to be withheld. The prosecution is not the judge in its own cause.

So the prosecutor applies for a ruling on public interest immunity. The judge reviews the material in private and balances the public interest in withholding it against the defendant's right to a fair trial under Article 6. The question is kept under review as the trial develops. Grant it and the material stays out. Refuse it and it must be disclosed.

The recognised categories are informant identities, national security, surveillance techniques and observation posts, witness protection, and anything that could endanger life. And the doctrine is not confined to terrorism. A frightened informant on a housing estate in a shoplifting case is a recognised head of public interest. It is simply for the judge to say so, not the prosecutor.

One limit worth holding. If withholding the material would make the trial unfair, immunity should not be granted, and in an extreme case the prosecution must choose between disclosing and abandoning the case. The right to a fair trial is not traded away.

Now the other side of the bargain. The defence statement is compulsory in the Crown Court under s.5 and voluntary in the magistrates' court under s.6. Its contents are prescribed by s.6A, and this is where drafting goes wrong.

It must state the nature of the defence, including any particular defences relied on. It must indicate the matters of fact on which the accused takes issue with the prosecution, and why. It must give particulars of the facts relied on. And it must set out any point of law to be taken.

So a statement reading, in its entirety, the defendant denies the offence and puts the prosecution to proof, complies with none of it. A bare denial is not the safe option it looks. It exposes the client to comment and inference, and it engages nothing, because it gives the prosecutor no issues to review the material against.

The time limit is 28 days from the prosecution complying with initial disclosure. The court can extend it, but only on an application made within the period, and only if satisfied that compliance in time is not reasonable. There is no retrospective extension. Realise on day twenty-six that you cannot serve, and you apply then.

Alibi gets its own rule inside s.6A. Rely on one and you must give particulars, including the name, address and date of birth of any alibi witness, or as many of those as you know. Where you do not know them, you give any information that might help identify or find the witness.

So a first name, a road, and a mobile number is what you serve. The duty is to give what you have, not to wait until you have everything. The reason is trial by ambush. Early notice lets the prosecution check the alibi and interview the witness, instead of meeting them for the first time in the witness box.

Serve the statement and you trigger s.7A, the continuing duty. The prosecutor must keep under review whether there is material which might reasonably be expected to assist the defence on the issues the statement raises. Anything of that kind is disclosed as soon as reasonably practicable.

Three things about that duty. It runs to the end of the trial, so material surfacing on day four must still be disclosed. It bites on material obtained after initial disclosure exactly as on material held all along. And it is not discharged by one further review. Back to our letter. It was a beginning, not an end.

Which is why a defence statement is a tactical document as well as a duty. Raise an issue and the prosecutor must go back through the material against it. Raise nothing and nothing happens. If disclosure still looks inadequate after all that, the route is an application to the court for specific disclosure under s.8.

Then the consequences, in s.11. It covers faults in defence disclosure: no statement, a late one, a defence at trial inconsistent with the statement, and alibi evidence called without particulars. And in every case the sanction is the same. The court or any other party may comment, and the court or jury may draw such inferences as appear proper.

Read that carefully, because it is what it does not say that catches people. It is not an exclusionary rule. The Act contains no power to shut the evidence out, and the old requirement of leave before alibi evidence could be called went when the Act came in. And s.11(10) forbids a conviction founded solely on such an inference.

Last, material held by somebody who is not a party at all. Medical records, phone records, footage from a private business. Under Part 17 of the Rules the defence can apply for a witness summons or a production order, compelling a third party to produce documents or attend. The court asks whether the material is likely to be relevant, and whether production serves the interests of justice.

You can also simply write and ask a third party to preserve and produce. With footage, do it today. It is often overwritten automatically after about 30 days, and a preservation letter costs nothing. With medical records you need your client's consent and a reason why they matter.

A word on how SQE1 tests this. You are not asked to recall case names or section numbers. You get a scenario, five answers, and one instruction: pick the best. This topic barely has case names at all. It runs on rules, so the rules are what to learn.

If you keep only three. Section 3, because initial disclosure has two limbs and a written nil return discharges it. Section 6A, because a defence statement that does not say what is in issue and why is not a defence statement. And s.7A, because the statement is what turns disclosure from a single event into a duty that runs to the verdict.

Four traps. One: nobody varies a direction by agreement. Directions are orders of the court, and a timetable settled between the advocates and reported to the court is worth nothing. If you need more time, apply, and apply before the date passes.

Two: the prosecutor does not get to decide what stays hidden. Sensitive material still has to be assessed against the disclosure test, and if it passes, withholding it is a matter for the judge on an application for public interest immunity. Not for the police, and not for the prosecutor.

Three: a schedule is an invitation, not an answer. Non-sensitive material listed on it can be inspected, and the code saying an item was withheld records the prosecutor's opinion rather than a ruling. Ask to see anything that might help, especially the item described as showing nothing.

Four: defence disclosure failures are evidential, not exclusionary. The case is not dismissed, the client is not in contempt, and the evidence is not shut out. What happens is comment and inference, and no conviction may rest on that inference alone.

Quick check. A man is on trial in the Crown Court for burglary. He pleaded not guilty at the plea and trial preparation hearing and the judge set a date for the defence statement. None was served, no application to extend was ever made, and none has been served since. On the second day of trial his counsel rises to call a witness who will say he was in another town when the burglary took place.

The prosecution object, saying the defence has forfeited the point and the witness must not be heard. What is the consequence of having served no defence statement? Three candidate answers. One: the alibi witness cannot be called, particulars never having been given in a statement.

Two: the case must be dismissed, the defence having disobeyed a direction of the court. Three: comment may be made, and the jury may draw such inferences as appear proper. Pause here if you want a moment.

The answer is three. Section 11 governs faults in defence disclosure, including serving no statement at all and calling alibi evidence without particulars, and the sanction is always the same. Comment, and such inferences as appear proper. The judge should let the witness be called and then direct the jury on the inferences open to them.

Why the others fail. One states the law as it stood before the Act, which replaced exclusion with comment and inference. There is no power to shut the evidence out. Two mistakes an evidential consequence for a procedural one. Non-compliance does not end a prosecution, and the trial simply continues.

Five things to take away. One: the court manages the case, directions are orders, and only the court varies them. Two: initial disclosure under s.3 has two limbs, and a written statement that there is nothing to disclose is compliance, not failure.

Three: the disclosure officer schedules and reveals, the prosecutor decides, and only the judge may permit disclosable material to be withheld. Four: the defence statement is compulsory in the Crown Court, its contents set by s.6A and due within 28 days. It is what triggers the continuing duty under s.7A.

Five: failing on defence disclosure brings comment and inference, never exclusion, and no conviction may rest on the inference alone. And our one-page letter? Compliance, and the starting gun. Next time, Burden and Standard of Proof.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.