Commentary on Sections Part 5: Disclosure Section 37: Continuing duty of disclosure by prosecutor
201.This Section inserts a new section 7A in the 1996 Act. The new section 7A replaces the existing sections 7 and 9 of the 1996 Act (which are repealed). The new section 7A imposes a continuing duty on prosecutors to disclose unused material.
202.Subsection (1) of the new section 7A provides that the section applies at all times after the prosecutor has provided initial prosecution disclosure under section 3, or has purported to do so. This duty continues until the accused is acquitted, convicted or the prosecutor decides not to continue with the case.
203.Subsection (2) of the new section 7A requires the prosecutor to keep under review the question of whether there is any material that meets the new disclosure test in set out in section 3 (material that might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused and has not been disclosed to the accused).
204.Subsection (3) of the new section 7A provides that if there is any such material the prosecutor must disclose it to the accused as soon as is reasonably practicable or within any time limit specified in regulations made under section 12 of the 1996 Act.
205.Subsection (4) of the new section 7A provides that when complying with the requirement to review the unused prosecution material the prosecutor must take account of the state of affairs as it stands at the time, including the prosecution case.
206.Subsection (5) of the new section 7A provides that where the prosecutor receives a defence statement served under sections 5, 6 or 6B and as a result of that statement is required to make further disclosure in accordance with section 7A, he must do so within the relevant period specified in regulations made under section 12 of the 1996 Act or give a written statement that that no disclosure is required.
207.Subsection (6) of the new section 7A defines prosecution material for the purposes of the section as material which is in the prosecutor's possession, or which he has been allowed to inspect in pursuance with a Code of Practice issued under Part 2 of the 1996 Act.
208.Subsection (7) of the new section 7A provides that the prosecutor should disclose material under this section as he does so when carrying out initial prosecution disclosure in accordance with section 3 of the 1996 Act.
209.Subsection (8) of the new section 7A provides that material must not be disclosed to the accused under this section if the court, on application by the prosecutor concludes that it is not in the public interest to disclose it, and has ordered accordingly.
210.Subsection (9) of the new section 7A provides that material must not be disclosed to the accused under this section if disclosure is prohibited under section 17 of the Regulation of Investigatory Powers Act 2000.