1 “Disclosure is one of the most important – as well as one of the most abused – of the procedures relating to criminal trials. There needs to be a sea-change in the approach of both judges and the parties to all aspects of the handling of the material which the prosecution do not intend to use in support of their case. For too long, a wide range of serious misunderstandings has existed . . .”
Disclosure: A protocol for the control and management of unused material in the Crown Court (20 February 2006 – Mr Justice Fulford and Mr Justice Oppenshaw et al).
2 The legal sources relating to disclosure can be neatly found in a variety of scattered sources:
i) the Criminal Procedure and Investigations Act 1996 as amended (the Act);
ii) the Code of Practice, issued under section 23 of the Act (the Code);
iii) Parts 25-28 of the Criminal Procedure Rules 2005 (the Rules);
iv) the Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 1997 issued under section 12 of the Act (the Regulations);
v) In addition, the Attorney General has issued Guidelines on Disclosure, which build on the existing law.
3 The correct test for disclosure will depend upon the date the relevant criminal investigation commenced:
i) In relation to offences in respect of which the criminal investigation began prior to 1 April 1997, the common law will apply, and the test for disclosure is that set out in R v Keane  1 W.L.R. 746; (1994) 99 Cr. App. R. 1.
ii) If the criminal investigation commenced on or after 1 April 1997, but before 4 April 2005, then the CPIA in its original form will apply, with separate tests for disclosure of unused prosecution material at the primary and secondary disclosure stages (the latter following service of a defence statement by the accused). The disclosure provisions of the Act are supported by the 1997 edition of the Code of Practice issued under section 23(1) of the CPIA (Statutory Instrument 1997 No. 1033).