criminal-law england-and-wales
Why mustn&#39;t a criminal prosecution case be disclosed?
<p>Meet Bob. Bob was prosecuted for an alleged criminal offence. His solicitor has sent him his prosecution briefing, which reads:</p>
<blockquote>
<p>THIS PRINTOUT IS PRODUCED FOR THE USE OF THE COURT, DEFENCE AND PROBATION
SERVICE ONLY AND MUST NOT BE DISCLOSED TO ANY OTHER PARTY</p>
</blockquote>
<p>What is the reason for that?</p>

<p>As explained <a href="https://inforrm.org/2017/02/02/spent-convictions-in-the-law-of-privacy-and-data-protection-part-1-aidan-wills/" rel="nofollow noreferrer">here</a>, this arises from the <a href="https://www.legislation.gov.uk/ukpga/1974/53" rel="nofollow noreferrer">Rehabilitation of Offenders Act 1974</a> and the <a href="https://www.legislation.gov.uk/ukpga/1998/29/contents" rel="nofollow noreferrer">Data Protection Act 1998</a>. There is a concept of a &quot;spent&quot; conviction, where a person convicted is not reconvicted of a serious offense for years, and then the person is (statutorily) &quot;rehabilitated&quot;, and under §4 of the law, they &quot;shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence [s] which were the subject of that conviction&quot;. The law also
criminalizes certain disclosures of spent convictions, mainly unauthorized disclosures by officials. The reasoning is that &quot;the public interest in rehabilitation outweighs the public interest in continuing publication and knowledge of the offense&quot;. The warning is actually not directed at Bob, it is directed at the prosecutor.</p>

<p>Bob has a right to a fair trial under <a href="https://www.legislation.gov.uk/ukpga/1998/42/schedule/1/part/I/chapter/5?timeline=false" rel="nofollow noreferrer">Article 6</a> Human Rights Act 1988.</p>
<p>Supporting this right is the <a href="https://www.legislation.gov.uk/ukpga/1996/25/contents" rel="nofollow noreferrer">Criminal Procedure and Investigations Act 1996</a> (CPIA) and its accompanying <a href="https://www.gov.uk/government/publications/criminal-procedure-and-investigations-act-1996-section-231-code-of-practice" rel="nofollow noreferrer">Code of Practice</a> that, among other things, lay out the rules and procedures for &quot;disclosure&quot; to ensure that Bob is given details of, access to, or copies of relevant non-sensitive material<sup>1</sup> to enable him to prepare his defence.</p>
<p><a href="https://www.legislation.gov.uk/ukpga/1996/25/section/3?timeline=false" rel="nofollow noreferrer">Section 3</a> CPIA say that:</p>
<blockquote>
<p>(1)The prosecutor must—</p>
<ul>
<li>(a)disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused...</li>
</ul>
<p>[...]</p>
</blockquote>
<p>s.3 is the &quot;Prosecution Test for Disclosure&quot;, and athough not every PNC court-print in every prosecution will satisfy this test, it seems to do so in Bob's case.</p>
<p>Now that he has had disclosure, <a href="https://www.legislation.gov.uk/ukpga/1996/25/section/17?timeline=false" rel="nofollow noreferrer">Section 17</a> CPIA places <strong>an obligation of confidentiality on Bob</strong> and prohibits him from sharing the PNC printout (and all other material disclosed to him) except in the circumstances described within:</p>
<blockquote>
<p>(1)If the accused is given or allowed to inspect a document or other object under—</p>
<ul>
<li><p>(a)section 3, 4, 7A , 14 or 15, or</p>
</li>
<li><p>(b)an order under section 8,</p>
</li>
</ul>
<p>then, subject to subsections (2) to (4), he must not use or disclose it or any information recorded in it.</p>
<p>(2)The accused may use or disclose the object or information—</p>
<ul>
<li><p>(a)in connection with the proceedings for whose purposes he was given the object or allowed to inspect it,</p>
</li>
<li><p>(b)with a view to the taking of further criminal proceedings (for instance, by way of appeal) with regard to the matter giving rise to the proceedings mentioned in paragraph (a), or</p>
</li>
<li><p>(c)in connection with the proceedings first mentioned in paragraph (b).</p>
</li>
</ul>
<p>(3)The accused may use or disclose—</p>
<ul>
<li><p>(a)the object to the extent that it has been displayed to the public in open court, or</p>
</li>
<li><p>(b)the information to the extent that it has been communicated to the public in open court;</p>
</li>
</ul>
<p>but the preceding provisions of this subsection do not apply if the object is displayed or the information is communicated in proceedings to deal with a contempt of court under section 18.</p>
<p>(4)If—</p>
<ul>
<li><p>(a)the accused applies to the court for an order granting permission to use or disclose the object or information, and</p>
</li>
<li><p>(b)the court makes such an order,</p>
</li>
</ul>
<p>the accused may use or disclose the object or information for the purpose and to the extent specified by the court</p>
</blockquote>
<hr />
<p><sup>1</sup>The CPIA Code of Practice offers these definitions:</p>
<ul>
<li>
<ol start="7">
<li><strong>material</strong> is material of any kind, including information and objects, which is obtained or inspected in the course of a criminal investigation and which may be relevant to the investigation. This includes not only material coming into the possession of the investigator (such as documents seized in the course of searching premises) but also material generated by them (such as interview records);</li>
</ol>
</li>
<li>
<ol start="8">
<li>material may be <strong>relevant</strong> to an investigation if it appears to an investigator, or to the officer in charge of an investigation, or to the disclosure officer, that it has some bearing on any offence under investigation or any person being investigated, or on the surrounding circumstances of the case, unless it is incapable of having any impact on the case;</li>
</ol>
</li>
<li>
<ol start="9">
<li><strong>sensitive material</strong> is material, the disclosure of which the disclosure officer believes would give rise to a real risk of serious prejudice to an important public interest; [<em>the Code refers to material not meeting this definition as <strong>non-sensitive</strong></em>]</li>
</ol>
</li>
</ul>
<p>And, for completeness:</p>
<ul>
<li>10.3 When a prosecutor provides material to the defence in accordance with the obligation under section 3 or section 7A of the Criminal Procedure and Investigations Act 1996, the prosecutor must at the same time provide the schedule of non-sensitive material to the defence.</li>
</ul>
