In a civil and criminal litigation, it is stated that the defendant must give a ‘notice of alibi’. Notice of alibi is a written statement demand by the government to inquire the defendant who intends to call a witness to give notice who is that witness and the defendant should state where he was during the time of the offense. In return, the government is required to give notice of the witness to the defendant. A notice of alibi is part of the disclosure. A disclosure is the action of telling or making the secret information known. Back then, there is no need for the defendant to give defense disclosure but nowadays, the defendant is under an obligation to disclose. As stated in Criminal Justice Act 2003: (1) Disclosures and Discontents, Mike Redmayne stated that, “Pre-trial disclosure determines who knows what and when. It shapes the way in which the parties plan for trial and develop the cases they present there. Disclosures rules can be used to pin the parties down to particular case theories before the trial begins, and thus prevent them from exploiting unexpected developments at trial or from catching the other side unawares.” Basically, it means that a pre-trial disclosure gives a person an idea of the case. It formed when the parties decide for the trial and look at the cases both parties submit. It is important to have a pre-trial disclosure because it can reject the cases that are not very useful and stop them from using the case.
In a civil litigation, a disclosure means, “stating a document exists or existed.” The meaning of document means, “anything which the description of the information is recorded.” In a criminal litigation, there are two types of disclosure. The first disclosure is used material. A used material is where a prosecution will use a material to bring the case against the defendant. In a crown court, a used material includes witness statements. The second is the unused materials. As stated in s3 of the Criminal Procedure and Investigations Act 1996 , “The prosecution’s duty to disclose material that is not part of their case (i.e. material obtained during the course of the investigation, but not forming part of the evidence against the defendant).” It basically means that, the unused material is disclosed during the investigation. The basic rule for the disclosure of the evidence before the trial is to make sure that it is fair; incomplete evidence may cause consequences for the trial process. However, in the case of R v H & C Lord Bingham stated, “full disclosure is the ‘golden rule’, and should only be exceptionally departed from and even then with sensitive evidence, there ought to be some disclosure.” It means that, disclosure should be made in every case but if the evidence is sensitive evidence then there should be an exception for it.
In the case of Williams v Florida , it is stated that “the petitioner was convicted with robbery. Instead of six-man jury the petitioner’s pretrial was a twelve-man jury. The petitioner claims that the Fifth Amendment were violated because he was force to give notice of alibi to the State giving the State with useful information to convict him. It was held that the Fifth Amendment was not violate and that it helps both accused and the State to look for the truth.” However, Justice Black disagrees with the court. He stated that, “In my view, this decision is dangerous, the defendant in a criminal case should remain completely silent, requiring the State to prove its case without any assistance of any kind from the defendant himself.”
“Prior to 1996, with minor exceptions, the defence did not have to disclose its case prior to trial.” Basically, it means that, there is no need for a defence disclosure in a pre-trial before 1996. As stated in CPIA 1996, there is a requirement for disclosure. The defence disclosure is required in a Crown Court and voluntary in the magistrates’ court. There will be a consequences if before the trial there is a failure of disclosure of a statement. However, many judges did not punish the defendant when the disclosure of the statement fails to give enough details.
“The absolutist position is unattractive. Its proponents seem committed, like Justice Black, to arguing that even notice of alibi provisions cannot be justified.” However, absolutist position may change to be more attractive. Even though, Justice Black did not agree that any kind of assistance of defence is proper to ask for but assistance might still be given in two different ways. The defence will help the prosecution to have a better opportunity to win at a trial, but it will not help a prosecution to establish a prima facie case. There will be no objection of disclosures of alibi, since that the defence is not to assist the prosecution to a prima facie case. However, it is complicated sometimes. For example, if D gave the alibi and it stated that he was near the crime scene during the time of the crime. It can argue that, D still have time to get to the scene to and commit crime if he left. Disclosure of a defence of self-defence might be more helpful to the prosecution as it helps to prove the Actus Reus. “Prosecutors do not use the defence statement as part of their case.” “It is tempting to look to burden of proof to provide the answer.” Burden of proof is a rule, which a prosecution needs to prove the evidence. It does not need to prove that where the evidence come from. It is clear that the burden of proof is on the prosecution and by giving the disclosed alibi to the prosecution it allows the prosecution to have a easier burden of proof. A self-incrimination may give the defendant the power to not help the prosecution to prove the case.
In cases involving public interest immunity, the CPIA did not make any changes to the principles of disclosure. However, this does not prevent from being a controversial corner of disclosure law. The principle here has been settled. The court will be the arbiter of the public interest immunity claims. In a public interest immunity claim, a prosecution must bring all the evidence, which are related to the case to the judge. It is the duty of the judge to determine whether the statement given by the prosecution should be discloses it to the public. In the case of Davis, Johnson and Rowe there are three different types procedures to deal with the claim of public interest immunity as introduced by the Court of Appeal. “The first type of procedure is the defence will be informed of the application and of the type of material involved.” “The second type of procedures will be used if the defence of the public interest immunity will give the game away.” For example, if one of the defendants is an undercover police then the case will only be the prosecution giving the argument. In this case, for the judge to protect the proceedings the European Court of Human Rights stress out the point that it is important to notify the trial judge of the material that’s being held back. The third types of procedure apply if the case is sensitive. By calling a special counsel to appear on behalf of the interest of the defence can type two of the procedure be fairer. As stated in the case of Jasper v United Kingdom, “the European Court of Human Rights believes that the type two procedure is a proper solution. The interest of the defence of immigration and other hearing, which involved with the national security are represented by the special counsel.” “The idea is that they permit the retention of a Chinese wall between the defence and any sensitive material, while allowing the interest of the defence to be represented at the public interest immunity hearing.” The special counsel will involve in conflict of argument about keeping the secret of public interest and draw attention to which the material was relevant. If the defence disclosure is a sensitive material, the special counsel is not allowed to notify it. In the case of Edwards and Lewis v United Kingdom the European Court of Human Rights implement a decision that in a public interest immunity hearing, the court is under a duty to appoint a special counsel. A type two hearing will be held before a trial to prevent the sensitive statement to be disclosed. During the trial, as stated in s.78 of the Police and Criminal Evidence Act 1984 the applicants argue that there should be a ban of some evidence owing to entrapment. The European Court of Human Rights find that there is a breach of Article 6 as there is a combination of the type 2 procedure and the entrapment. However, the government was unhappy with the decision in the Edward case. As stated in the case of H & C, the House of Lords and the Court of Appeal now consider this issue. The decision of the Court of Appeal is more helpful than the decision in the House of Lords. The House of Lords were very careful of giving too much of the issue and propose that the judge does not need to take into account of the public interest immunity as the special counsel can prevent them by giving the evidence that is relevant to the case and not submit those which are not relevant to the judge. However, in practice, a decision-making that involves of public interest immunity, the special counsel believes that it is best to have the judges to be involve as they find the it difficult. For type three of the procedure, the Court of Appeal believes that special counsel should be appointed but the House of Lords rely on the principles. “The European Court of Human Rights has intimated that balancing is appropriate here. ‘The entitlement to disclosure of relevant evidence is not and absolute right. In a criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused.” Basically, it means that, in a criminal proceeding, it needs to disclose the evidence and on the other hand, it needs to protect the statement, as it is a national security. In the case of Botmeh , the Court of Appeal stated, “that the disclosure of relevant defence evidence is not an absolute right.”
In conclusion, disclosure has always been a problem to judges. The requirement of the defence disclosure is to give notice of alibi to the prosecution before trial. It is submitted that the merit of a non-disclosure is to protect the defendant and to give the State to find the evidence themselves not by the defendant. Another absolutist position is to protect the public interest immunity. It is important to protect the public interest immunity, as it might be a sensitive material such as national security.