Unused Material in Rape Allegations: Disclosure of Unused Material Can Make or Break Your Defence

What is unused material?

During a criminal investigation, there will often be a vast amount of information obtained and considered by the police. When charges are brought, the Crown Prosecution Service (CPS) may disclose some of this information as evidence, serving it as witness statements and exhibits. However, it is likely that there will still be a large amount of the collated information  which is not used by the CPS as evidence. Indeed, the police are required to record all material which does not form part of the prosecution case, retain it and provide it to the prosecutor. During court proceedings, this material is labelled as ‘unused material’.

What are the prosecution’s disclosure obligations?

The prosecution’s role is to ensure that any unused material is properly considered and where appropriate, disclosed to the defence.

The test, as set out in Section 3 of the Criminal Procedure and Investigations Act (CPIA) 1996, is that any material that might reasonably be considered capable of undermining the case for the prosecution, or of assisting the case for the accused, should be disclosed to the defence.

Disclosure Management Documents

In all rape cases, the prosecution must also complete a disclosure management document (DMD). The DMD should clearly identify what has been considered to be a reasonable line of enquiry in the case and why, together with an explanation of how all seized electronic material has been dealt with.

The prosecution must be able to explain to the defence and court what material it has  in its possession and whether it intends to disclose it to the defence as well as what material it does not possess and whether it intends to obtain it.

Continuing disclosure

This obligation is a continuous one and all decisions regarding disclosure must be kept under review until the conclusion of the trial.

What is likely to be disclosed?

The following material, which is produced and obtained in most investigations is likely to include information which meets the test for disclosure in many cases:

• records which are derived from tapes or recordings of telephone messages (for example 999 calls) containing descriptions of an alleged offence or offender;
• any incident logs relating to the allegation;
• contemporaneous record of the incident such as crime reports and crime report forms, or where not already contained within the crime report: –
• an investigation log;
• any record or note made by an investigator (including police notebook entries and other handwritten notes) on which they later make a statement or which relates to contact with suspects, victims or witnesses;
• an account of an incident or information relevant to an incident noted by an investigator in manuscript or electronically;
• records of actions carried out by officers (such as house-to- house interviews, CCTV or forensic enquiries) noted by a police officer in manuscript or electronically;
• CCTV footage, or other imagery, of the incident in action;
• the defendant’s custody record or voluntary attendance record;
• any previous accounts made by a complainant or by any other witnesses;
• interview records (written records, or audio or video tapes, of interviews with actual or potential witnesses or suspects);
• any material casting doubt on the reliability of a witness e. g. relevant previous convictions and relevant cautions of any prosecution witnesses and any co-accused.

What can my defence team do?

The HMCPSI report published in January 2020 on Disclosure of unused material in the Crown Court highlights the role of the defence in requesting unused material to which they consider they are entitled.  

Usually a list is provided in the defendant’s defence statement, requesting the disclosure of certain material depending on the facts of each individual case.  It is crucial that the correct material is requested in the defence statement, as this will allow the defence team to prepare the case in the best way possible.

Further disclosure requests can be made throughout the case, especially following new information provided to the defence team. It is essential that the team is provided with all relevant information about the complainant and the allegations, to enable us to request the correct material which could assist your case.

Unused material can be used in jury bundles to assist in the cross-examination of the complainant and other witnesses.

For example, in a recent case dealt with by the team at Olliers, messages sent following an alleged rape were put to the complainant in cross-examination. The complainant could not account for why she had sent these messages, which were asking our client to get back together with her following a break-up. These messages were pivotal in explaining the context of the allegations to the jury.

Section 8 Disclosure Application – Requests for disclosure

If the defence believe there is material which has not yet been disclosed which is relevant to the case, an application for disclosure can also be made under Section 8 of the CPIA 13. An application can only be made if the defence have provided an adequate defence statement.

These applications cannot be used to make speculative requests for material, there must be reasonable cause to believe that the prosecution has the material being requested.

What happens after my phone is seized?

Many investigations now involve large quantities of digital material. In most rape allegations, the defendant’s phone is seized and considered, to some extent, by the police.

The Attorney General’s Guidelines on Disclosure 2024 states that ‘prosecutors and investigators must ensure that any line of inquiry pursued in relation to the digital devices of victims and witnesses are reasonable in the context of the likely issues in the case. Digital devices should not be obtained as a matter of course and the decision to obtain and examine a digital device will be a fact-specific decision to be made in each and every case.’ 

What is considered is case dependent, but it will usually involve the police looking at any communication between the complainant and the accused. If there is any other material on the device which is of assistance to the defence, the phone download can be requested from the police.

Can the complainant’s phone be seized?

Although digital devices are often seized from suspects, they can also be obtained by consent from witnesses.  The CPS disclosure guidance (Disclosure – A guide to “reasonable lines of enquiry” and communications evidence | The Crown Prosecution Service)states that the examination of mobile devices belonging to the complainant is not a requirement as a matter of course in every case. However, if relevant to the specifics of the case, requests can be made for the complainant to be asked to voluntarily hand over their device. Requests can only be made if specific issues need to be considered- for example, if images of injuries are provided by the complainant which need to be considered by the defence in further detail But, it must be noted that this is not compulsory and complainants can, and often do, refuse to provide their devices. 

Can the complainant’s previous allegations be disclosed to the defence?

A complainant’s previous allegations can be disclosed to the defence, if they are relevant to the case.

In a number of cases that we have dealt with, following the proper review of unused material in which the complainant has made multiple false allegations, the prosecution have decided to offer no evidence against our client. This may not have happened had we not persisted in our requests for disclosure of these previous allegations.

How Olliers can help 

Our award-winning team of criminal defence solicitors has extensive experience in handling rape allegations.

If you or someone you know is proceedings for an allegation of rape, early specialist advice is essential. At Olliers, our experienced team can guide you through the process, explain what to expect, and work proactively to achieve the best possible result. 

If you are facing an allegation involving any kind of sexual offence please contact our new enquiry team on 020 883 6790 (London) or 0161 834 1515 (Manchester) , email info@olliers.com or complete the web enquiry form below.