AZZOPARDI BORG & ASSOCIATES ADVOCATES

+356 2143 3000

FIRST FLOOR, VICTORIA BUILDING,
8, TRIQ L-GĦENIEQ, NAXXAR NXR3622, MALTA
info@abalegal.eu

+356 2143 3000

info@abalegal.eu
FIRST FLOOR, VICTORIA BUILDING,
8, TRIQ L-GĦENIEQ, NAXXAR NXR3622, MALTA
+356 2143 3000
info@abalegal.eu
FIRST FLOOR, VICTORIA BUILDING,
8, TRIQ L-GĦENIEQ, NAXXAR NXR3622, MALTA

The Rule of Disclosure in Criminal Proceedings

… [T]he fruits of the investigation … are not the property of the Crown for use in securing a conviction, but the property of the public to be used to ensure that justice is done.’ These are the words of Judge Sopinka in R v Stinchcombe which lay the foundations of the law on disclosure in criminal proceedings.

The law on disclosure refers to the duty of the investigative authorities to make available all material evidence which it has at its disposal to the defence before trial in order that the suspect, through legal counsel, may make full answer and defence to the charge.

The right to disclosure is quite a recent development to the right to a fair trial. Such right has been developed by the European Court of Human Rights (ECtHR) as a corollary to fair trial guarantees under Article 6(1) of the European Convention on Human Rights (ECHR) and the more specific requirement under Article 6(3)(b) that everyone charged with a criminal offence must ‘have adequate time and facilities for the preparation of his defence’.

In the judgment Edwards v United Kingdom, delivered on 16 December 1992, the ECtHR stressed that: ‘… it is a requirement of fairness under article 6(1) that the prosecution authorities disclose to the defence all material evidence for or against the accused …. In another commonly quoted judgement, namely Rowe and Davis v United Kingdom, delivered on 16 February 2000, the ECtHR re-emphasised the principle that there should be equality of arms between the prosecution and the defence. Although not explicitly expressed in the text of Article 6 of the ECHR, this is regarded as no less strong than those principles which are expressly set out therein. In the context of disclosure, this implies that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused.

From a local context, the right of access to the materials of the case, transposed from Directive 2012/13/EU, is provided for under Article 534AF of the Criminal Code. This provision does not provide for the precise moment when such documents should be made available to the supect or to his lawyer. According to the EU Directive itself, such documents must be made available in due time to allow the effective exercise of the right to challenge the lawfulness of the arrest or detention. Each person deprived of his liberty has the immediate right to have his detention reviewed by a judicial authority and logically therefore the materials needed to contest the legality of such detention should be promptly provided to the suspect or his lawyer.

As to what amounts to ‘material evidence’, the Criminal Code does not include a definition and therefore the provision might cause confusion as to what the police should disclose and what they should not. The Directive provides that where a person is arrested or detained at any stage of the criminal proceedings, the investigative authorities must ensure that documents relating to specific cases in the possession of the competent authorities, and which are essential to effectively challenge the lawfulness of the arrest or detention are made available to the arrested person or to their lawyer.