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A charge can appear to rest on one account, one recording or one police officer’s evidence. Yet the material that matters may also include an unused CCTV clip, a message extraction, an earlier statement or records that point in a different direction. CPS disclosure rules govern how that material is identified, reviewed and, where the legal test is met, provided to the defence.
If you have been arrested, interviewed under caution, charged or told that the CPS is considering a prosecution, disclosure is not a technical side issue. It can shape the advice you receive, the enquiries your defence needs to make and the way your case is prepared. Clear, early advice from a criminal defence solicitor can help protect your rights at each stage.
What does disclosure mean in a criminal case?
Disclosure is the process by which the prosecution provides the defence with material gathered during an investigation that it does not intend to use as prosecution evidence, where that material meets the legal disclosure test. It is often called “unused material”.
Unused does not mean irrelevant, unreliable or unhelpful. It simply means the prosecution does not presently intend to rely on it at trial. It may include a witness statement that differs from the prosecution case, an officer’s notebook, call data, body-worn video, CCTV, photographs, digital downloads or information held by another organisation.
The central rule appears in section 3 of the Criminal Procedure and Investigations Act 1996 (CPIA). A prosecutor must disclose previously undisclosed prosecution material if it might reasonably be considered capable of undermining the prosecution case or assisting the case for the accused. That is a legal test, not a matter of whether the prosecution considers the material decisive.
How CPS disclosure rules work in practice
The police investigator gathers and records material obtained during the investigation. They must identify relevant material and prepare schedules describing material that has not been put forward as evidence. The prosecutor reviews that material and decides what must be disclosed.
The CPIA Code of Practice is clear that investigators must pursue all reasonable lines of enquiry, whether these point towards or away from a suspect. Paragraph 3.5 is particularly significant where there may be CCTV, phone evidence, independent witnesses or accounts that have not been followed up.
A prosecution file can be extensive, especially where phones, social media, vehicle data or multiple witnesses are involved. The obligation is not necessarily to hand over every item collected. Investigators and prosecutors must take a proportionate approach. But proportionality is not a reason to ignore a sensible line of enquiry or material that could assist the defence.
The CPS Disclosure Manual also explains that disclosure is a continuing duty. Section 7A of the CPIA requires the prosecutor to keep disclosure under review. If further material comes to light, or the significance of existing material becomes clearer as the case develops, the prosecution may have to make further disclosure.
Material that may help the defence
The answer depends on the allegation and the evidence, but relevant unused material can include an account that does not support the complainant’s version of events, CCTV showing only part of an incident, records affecting a witness’s reliability, or messages providing context missing from a selected screenshot.
In an allegation involving violence, for example, footage from a nearby premises may show who approached whom or what happened immediately before an incident. In an alleged motoring offence, vehicle data, dashcam footage or a 999 call may be important. In a case based on digital communications, the timing, surrounding messages and source of an image can matter as much as one isolated exchange.
Disclosure is not a fishing exercise. The defence should be able to explain why a particular category of material may be relevant. A carefully prepared defence statement or focused request can make that issue much clearer.
Defence statements and requests for further disclosure
The defence may set out the nature of its case, identify the matters in issue and explain why particular material may assist. In Crown Court proceedings, a defence statement is generally required under section 5 of the CPIA. It can also be valuable in other proceedings where it helps focus the real dispute.
This involves judgment. Revealing the defence position too broadly or too early can have consequences, while saying too little may make it harder to show why further material should be reviewed. The appropriate approach depends on the allegation, the evidence served and the stage reached in the case.
If there are proper grounds to believe that relevant material has not been disclosed, the defence can ask the prosecutor to review the position. Where the issue cannot be resolved, section 8 of the CPIA allows an application to the court for an order requiring disclosure. The court will consider the material sought and why it may be relevant to the case.
Some material may be sensitive, such as information that could identify a confidential source or affect public safety. It may not be shown to the defence in full. The prosecution may seek to withhold it through the appropriate court process, and the court must balance fairness with the public interest involved.
Digital evidence needs careful handling
Modern disclosure disputes often concern mobile phones and digital accounts. A complainant, witness or defendant’s phone may hold thousands of messages, photographs, app records and location data. The police are not automatically entitled to search through every part of a person’s private life, and an unexplained request for a whole device may be inappropriate.
At the same time, relevant digital material should not be overlooked because it takes time to examine. The Attorney General’s Guidelines on Disclosure 2024 stress the need for reasonable, targeted and proportionate enquiries, including in cases involving large volumes of digital material.
A defence solicitor can consider whether the prosecution evidence has been presented in context and whether there are identifiable sources of material worth pursuing. That may involve checking dates, names, locations, deleted-message claims, call records or whether footage has been retained before it is overwritten.
What to do if you think evidence is missing
Do not try to contact witnesses, complainants or other people involved in the allegation to obtain material yourself. That can create serious problems and may be viewed as interference with witnesses or evidence.
Instead, preserve what you lawfully have. Keep messages, photographs, emails, documents and recordings in their original form where possible. Make a note of potential CCTV locations and the relevant date and time, as footage may be deleted quickly. Tell your legal representative about anything that may support your account, even if it feels minor or uncomfortable.
It is also sensible not to delete data or discuss the facts of an ongoing case on social media. A short message sent in frustration can be misunderstood when read without context.
Frequently asked questions about CPS disclosure rules
Does the CPS have to disclose everything the police collect?
No. The duty is to disclose material meeting the statutory test, not every item gathered. However, the police must follow reasonable lines of enquiry and the prosecutor must keep the disclosure position under review.
Can the defence ask for CCTV or phone evidence?
Yes, where there is a proper reason to believe it may be relevant. A focused request should explain what material is sought, where it may be held and how it could assist the defence or undermine the prosecution case.
What happens if disclosure is late?
Late disclosure can affect how a case is managed and may require further investigation, additional time for the defence or an application to the court. The effect depends on the material and whether any unfairness can be addressed.
Can evidence be withheld from the defence?
In limited circumstances, sensitive material may be withheld where disclosure would damage an important public interest. This is subject to legal safeguards and court oversight, rather than being a decision the prosecution can make without scrutiny.
Is disclosure relevant before someone is charged?
The formal CPIA disclosure process is mainly connected to criminal proceedings after charge. Before charge, the key priority is obtaining legal advice, protecting your position in interview and identifying urgent evidence that may need preserving.
Disclosure can be the difference between seeing only the prosecution’s chosen evidence and understanding the fuller picture. Raising the right questions early gives your defence a better chance to identify material that needs proper review.
Arrested, under investigation or at the police station? Call 07494 299377, 24 hours.
