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Andy L
All,

The Magistrates Court Service has just rang me as they have just recieved my defence statement today and as I have asked them to apply Section 8 of the CPIA to make an order for the prosecutor to provided disclosure they are setting a disclosure hearing this Friday 17 Sept.

The prosecutor has been asked to take their case file.

My options are to attend to discuss, or fax/e-mail, my reasons for disclosure, or do nothing.

I forgot to ask which court but my understanding is that disclosure matters are to be a trial within a trial to be discussed in a higher court than magistrates court.

Should I attend and what should I expect???

Andy
cjm99
QUOTE
Application by accused for disclosure. 8. - (1) This section applies where the accused gives a defence statement under section 5 or 6 and the prosecutor complies with section 7 or purports to comply with it or fails to comply with it.

(2) If the accused has at any time reasonable cause to believe that-

(a) there is prosecution material which might be reasonably expected to assist the accused's defence
as disclosed by the defence statement given under section 5 or 6, and
(B) the material has not been disclosed to the accused,
the accused may apply to the court for an order requiring the prosecutor to disclose such material to the accused.


You must specify what you are seeking to be disclosed, and why. Fishing trips are not allowed.

Chris
Andy L
QUOTE (cjm99)
You must specify what you are seeking to be disclosed, and why. Fishing trips are not allowed.


Hi Chris,

This I agree is the case, however I believe when negotiating to ask for as much as possible and let them decide otherwise, then at least the information has been asked for.

Below is the e-mail I intend to send to the court for the hearing which outlines and emphasises the reasons - your views on this would be much appreciated.

Also since the last post I have discovered the disclosure hearing will be at the magistrates court and talked to Robert Dobson.

Andy

QUOTE
Thank you for your e-mail I have looked through the Defence Statement again and essentially it covers everything so there is no need for me to attend this hearing, but I would like to emphasise to the court certain points.

1. The disclosure requested 'might undermine the prosecutor's case' and so should have been disclosed as primary disclosure material Section 3 Criminal Procedure and Investigations Act 1996.

2. The full video evidence requested is material to the witness statement provided by PC XXXX, required for careful inspection by my experts and for the purposes of a thorough cross examination of this witness, therefore a copy should be disclosed in full as originally requested. The offer to inspect this evidence in controlled or restrictive circumstances is not acceptable to the defence and such an offer will be refused.

3. The original speeding allegation is the basis from which the S172(3) offence and the witness statement made by PC XXXX relies, a dispute exists over this original allegation and the evidence that supports the police case, therefore questions arise as to the accuracy of this evidence and whether the matter should have been pursued to prosecution at all.

4. It has come to my knowledge that some prosecutors have claimed that disclosure is not possible because of the Data Protection Act (DPA) or because of 'public interest' reasons, these claims are unfounded. Where any personal information exists on the video evidence covered by the DPA this can be 'carefully' edited out in a manner such that the disclosed copy is altered in order to protect these individuals, yet leave the important aspects of the video evidence unaltered as to still be useful to the defence.

5. The request for the written terms of reference of the Chief Constable of Humberside authority provided to Mrs XXXXXX detailing the scope of such authority is material to the witness statements and correspondences they sent to the accused, and is again required for the purposes of a thorough cross examination of these witnesses.

6. Where any primary or secondary disclosure is refused or offered for inspection over the provision of a copy, the defence requests from the court or prosecutor as appropriate, a detailed written explanation to be sent to the defence as to how and why they have come to their decision.

Please ensure that a copy of this e-mail is presented at the hearing Friday 17 September 2004, also a reference copy of this e-mail is being sent to my associates.

Regards,
Maersk
Data protection act does not apply to the judicial process so I would omit the bit about editing the tape. You are entitled to all of it not edited highlights.
A Chief Constable has had to retire recently because of incorrect Data Protection interpretation! icon_wink.gif
Andy L
Hi Maersk,

First point hence the inclusion of this bit....

QUOTE
Where any personal information exists on the video evidence covered by the DPA ....


... therefore no excuses not to disclose.

Second the CC you mention has not yet had to retire as I understand it he is back in office although I do believe Blunkett (who after today has problems of his own right now laugh.gif laugh.gif laugh.gif ) is requesting his retirement.

Andy
Mika
Andy,

The writer can confirm receipt of your communication and he should be far more grateful, than ‘they’ will be, if the traffic video in question is not disclosed. icon_wink.gif

They can’t deprive an expert witness of a right of audience.

“With the very greatest of respect, you can’t say that…..” icon_eek.gif

“Very sorry you’re honour but I just did…” rolleyes.gif
Andy L
Thanks Mika,

The words 'prosecutor', 'in', 'towel' and 'throw' comes to mind though icon_wink.gif

Andy
Andy L
With regards to my last post - not yet it seems. The prosecutor has still refused to disclose, this time with the Magistrates blessing.

Here is the letter I received from them:


QUOTE
Dear Sir
Re : R -v- Yourself
XXXXXX Magistrates Court-XXXXXXXXX 2004
I write regarding the above matter which is listed for trial before the XXXXX Magistrates
at XXXXXX 2004.
The case was put before the Justices on the XXXXXXXX 2004 at your request
regarding issues of disclosure.
It would appear from your correspondence that there are four areas of concern held by
yourself, I will deal with each of them in turn.
You are charged with an allegation of failing to give information about the identity of a
person alleged to have been guilty of an offence in a car of which you are the registered
keeper. It is clear that you would wish to view the video recording which relates to that
alleged offence. The Crown Prosecution Service have indicated that they will produce
the video on the day of trial and have advised you of the procedure enabling you to
view the video in advance. The Magistrates are satisfied that this offer is appropriate in
the circumstances and that this is in fact the same facility afforded to other defendants
in similar circumstances.
You also require sight of the identifying serial numbers and maintenance records of the
equipment used by PC XXXXX. The Crown Prosecution Service again have indicated that
they will produce this information on the day of trial. The Magistrates on the day of
trial will afford you the opportunity to consider these documents.
You have been served with the statements of Mrs XXXXXXX, however
you state that you wish to be made aware in writing the details of their authority and
competencies in the performance of their duties. The Court considers that the
credibility of these witnesses is a matter to be established by way of cross examination
and decided upon by the Court of trial.
Finally, you raise the issue of Human Rights and the fact that requests under Section
172 of the Road Traffic Act deprive you of your right to remain silent. The Justices are
bound by the decisions of Higher Courts and it is now established case law that such
requests are neither unfair nor contrary to the European Convention on Human Rights
(DPP-v-Wilson2001)
I hope that the content of this letter clarifies the position and hope that the trial can
proceed on XXXXXXX.


IMO they are wrong in not disclose (anything asked for???) not only are they acting unlawfully they have totaly ignored their own CPS guidelines (which explicitly refers to R v Calderdale ex parte Donahue and Cutler 2001) but also the guidelines of the Attorney General.

Andy
Lance
This is just a ridiculous wind-up. On the matter of disclosure, there have been the following cases against The United Kingdom:

Edwards, 1992
Jasper, 2000
Fitt, 2000
Rowe and Davis, 2000
IJL, GMR and AKP, 2000
Dowsett, 2003
(just go here and put 'Edwards' in the search box)

QUOTE (All of the above)
In addition Article 6 § 1 requires that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused

How many more times do they need it explained?

Other defendants have been given the whole video.

On the Right to Silence, the court must take into account recent ECHR rulings which have occurred since Wilson which is irrelevant anyway.
Andy L
Hi Lance,

Thanks for this.

Andy
Clear Skies
QUOTE (Andy L)
With regards to my last post - not yet it seems. The prosecutor has still refused to disclose, this time with the Magistrates blessing.

Here is the letter I received from them:


QUOTE
Dear Sir
Re : R -v- Yourself
XXXXXX Magistrates Court-XXXXXXXXX 2004
I snip snip .
. The Magistrates are satisfied that this offer is appropriate in
the circumstances and that this is in fact the same facility afforded to other defendants
in similar circumstances.
proceed on XXXXXXX.


IMO they
Andy


lots of snipping..

just because other defendents fell for it, doesnt mean its the right action. precedents make the law.

rgds
bill
Lance
You might also find this post useful.
Lance
I'm moving this back to the original thread.

QUOTE (Bill)
Andy,

good luck with tomorrow.

I am still grapling with all the different points, but u need to have in your hands a solid reason why you want the whole video, and not the bits and pieces. they may offer, which the court may accept in the rush to do 200 speeding prosecutions per day.

in other words, your honour, at the start of the video we can see xyz and that has a bearing on my issue and they are trying to fob me off and have one over me and the court . .

maybe mika will helpwith what the xyz is.. maybe u already know.. good luck

rgds
bill


One thing that I'm slightly worried about is that you are charged with S172 only, aren't you? Normally the video is sought in actual speeding cases.

But of course for a S172 case there has to be an allegation of excess speed. So your reason for wanting the video is, I suppose, to show that the device was not used/operating correctly and therefore can't be relied up even to give rise to a case to anwer for speeding. And without that, there is no S172 obligation.

The reason I though that this post would be useful is that it shows how somebody else managed to get clear guidance on disclosure. I'd suggest getting a copy of the email, or emailing them yourself.
Mika
Lance,

In my opinion, it’s the Crown who should be worried.

I have a Lastec traffic video from the case of someone who was only being prosecuted for an S 172 offence in my possession, Andy is saving his money for a proper court and I have offered to be his expert witness. icon_wink.gif
Andy L
Just a quick observation I noticed whilst preparing today that I thought I would share with everyone.

I am being charged under S172(3) of the RTA 1988 which supercedes the earlier act and Section 21(7)(B) states:
[quote]the person on whom the notice is served shall not be guily of an offence under this section if he shows either that he gave the information as soon as reasonably practicable after the end of that period or that it has not been reasonably practicable for him to give it

IMO self-incrimiation and giving information to become evidence against your spouse falls within this last part. Which would explain why they used the earlier act. :x

Andy
Mr Rusty
IANAL but does not a later act actually supercede an earlier version. i.e. does the earlier one cease to become law?
jeffreyarcher
QUOTE (simonmaasz)
IANAL but does not a later act actually supercede an earlier version. i.e. does the earlier one cease to become law?

Not en block, no.
I.e. just because there is a RTOA 1991, it does not replace the RTOA 1988. It depends what the later act says.
Except that if an act repeals an act, and the repealing act is itself repealed, the original repealed act does not automatically spring into life again.
Andy L
In this case it does though since they restate the whole of Section 172 of the RTA 1988 in Section 23 of the RTA 1991.

Andy
jeffreyarcher
QUOTE (Andy L)
In this case it does though since they restate the whole of Section 172 of the RTA 1988 in Section 23 of the RTA 1991.

They amend it, they don't repeal it.
So the Act is still the 1988 Act as far as section 172 is concerned.
Andy L
Ah yes! I see icon_redface.gif - but the RTA 1991 amendment still applies to the RTA 1988.

Andy
jeffreyarcher
QUOTE (Andy L)
Ah yes! I see icon_redface.gif - but the RTA 1991 amendment still applies to the RTA 1988.

Correct.
DW190
Is it not correct that when referring to a part that has been amended the paperwork should read:

s172 of the RTA 1988 as amended by s23 of the RTA 1991
jeffreyarcher
QUOTE (DW190)
Is it not correct that when referring to a part that has been amended the paperwork should read:
s172 of the RTA 1988 as amended by s23 of the RTA 1991

AIUI, it's academic. The original 1988 version no longer exists once it has been amended.
Weevil
QUOTE (DW190)
Is it not correct that when referring to a part that has been amended the paperwork should read:

s172 of the RTA 1988 as amended by s23 of the RTA 1991


Nah, that would be for clarity! They'd rather leave you scratching about trying to find precisely what it is that they're talking about.

But for future refence the Interpretation Act 1978, explains what goes on when Acts amend or repeal other Acts). I have a paper copy of this at work if anyone is interested.
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