The prosecution must ensure that in discharging its disclosure obligations it complies with the following (unless any provision cannot properly be said to apply to a private prosecution):
- CPIA 1996;
- CPIA Code of Practice;
- The CrimPR
- The Attorney General’s Guidelines on Disclosure;
- Judicial Protocol on the Disclosure of Unused Material in Criminal Cases;
- The CPS Disclosure manual; and
- The obligation to disclose material before the requirements of the CPIA are triggered (R v DPP ex parte Lee  2 All ER 737)
The prosecution’s approach to disclosure must be straightforward, transparent and open.
A Disclosure Management Document (“DMD”) should be produced (unless to do so would be disproportionate in any given case) to achieve a pro-active and transparent approach, to give the Court confidence that the prosecution is complying with its disclosure obligations and to engage the defence in the disclosure process at an early stage.
If a DMD is produced, it should be used to summarise the approach taken by the prosecution in dealing with unused material. In appropriate cases, the document should further be used to explain clearly the limits of the prosecution work on disclosure and why those limits have been set.
A DMD will require careful preparation and presentation, by reference to the individual case. It is essential that the criteria which the prosecution have applied to the decision-making process in the particular case are clear.
Paragraphs 51 and 52 of the Attorney General’s Guidelines on Disclosure 2013 provide useful guidance on the content of any DMD.
Legal professional privilege
The prosecution’s approach to legal professional privilege (“LPP”) material must be open and rigorous.
The prosecution must deal with material that might be subject to a claim for legal professional privilege in a manner that is consistent with the requirements of the CPIA and the CPIA Code.
All relevant non-sensitive material, including any material to which LPP may apply, must be scheduled on the non-sensitive schedule and disclosed in accordance with the statutory test. In order to continue with the private prosecution, the private prosecutor must not withhold material that meets the test for disclosure on the basis that it attracts legal professional privilege
Sensitive unused material must be scheduled on a sensitive material schedule (MG6D or similar) together with the reason why the Disclosure Officer (if there is one) or the prosecutor believes the material to be sensitive. However, material will be sensitive only if its disclosure would give rise to a real risk of serious prejudice to an important public interest. Examples of such material can be found within the CPIA Code of Practice at paragraph 6.15.
The role of the private prosecutor
The extent to which the private prosecutor is involved in the process of identifying relevant material must be given careful consideration by the prosecution at an early stage. Particular consideration must be given to whether in any given case it is appropriate for the private prosecutor to identify relevant material (or whether that role should be assumed by someone else) and how that process is to be managed and supervised. Material cannot be withheld, either from inclusion on the schedule or from disclosure, on the basis that its revelation is inconvenient or embarrassing to the private prosecutor or any other person
Parallel civil proceedings
The Prosecutor must ensure that, where there are parallel civil and criminal proceedings, proper consideration is given to the potential relevance of material arising in the civil context to the criminal proceedings4. The Prosecutor should ensure that the approach taken to suchmaterial is clearly set out in any DMD.
4 In so doing, the Prosecutor must be mindful of the limitations on the collateral use of documents and evidence disclosed or served by parties to civil proceedings. What constitutes collateral use in this context is very broadly defined and, if none of the relevant exceptions apply, would include even reviewing a disclosed document or witness statement where the purpose of that review is to determine its relevance to a private prosecution. See also paragraph 8.5.1 of the Code. The relevant exceptions include obtaining permission in the civil proceedings for use of the material in the criminal proceedings.