is a key aspect of any criminal proceedings. As in all criminal proceedings, there is the presumption of innocence; the burden of proving the case is on the prosecuting body and disclosure is a vital part of this process.

In this article, we consider how the instruction of a specialist criminal lawyer at the outset of a criminal investigation will benefit both the policyholder and their insurer by enabling early access to information relevant to issues of liability, quantum and causation which will assist the insurer on strategy and crucially ensure minimal financial impact.

What is disclosure?

Disclosure is the delivery or production of documents by a party to a case to the other parties in the case (rule 210).

Disclosure is intended to prevent surprise at the trial, inform the parties of the issues to be disputed at the trial, and to assist the parties to resolve disputes of fact.

There are three main steps in the disclosure process:

  1. Serving a list of documents on the other party;
  2. Offering inspection of your disclosed documents to the other party; and/or
  3. Providing copies of your disclosed documents to the other party.

Initial disclosure law is a federal law that requires both parties to provide each other with information when a discovery request is made. Discovery includes items necessary to a  case such as:

  • The names, addresses, and phone numbers of everyone who may have information about the case.
  • A list and copy of all relevant data, documents, and tangible items a party controls or possess.
  • A computation of damages.
  • Insurance agreements that are relevant to the case.

When referring to patent law, the initial disclosure includes the party providing an explanation of how their invention works through such ways as:

  • Drawings
  • Descriptions
  • Specifications
  • Reference to prior claims

The term full disclosure is often used in numerous situations, such as in prenuptial agreements and transactions involving real estate. This will allow both parties to seek the balance they need. When a contract or purchase is made, both parties are required to disclose the full truth before it is signed so both parties fully know the consequences of their action.

An example of full disclosure would be when the court requires both parties signing a prenuptial agreement to provide a list of assets. This usually includes an attachment of the schedule of assets that are included in the prenuptial agreement.

Rulings Witnessing the Indian Judiciary Balance Disclosure
and Non-Disclosure of Documents

  1. Tribhuvandas Bhimji Zaveri v. CCE: Where the decision-making authority expressed inability to disclose the materials found against the accused and yet issued a show cause notice to it requiring an answer, the court found fault in the very issuance of the show cause notice. It held that the document which set the law into motion against the accused ought to be made available to it so as to require a proper explanation. The failure to supply important piece of information to the affected party had prejudiced its case and the principles of natural justice stood violated.
  2. Swadeshi Cotton Mills v. Union of India: Where the government was satisfied, by the documents and other evidences in its possession, that an industrial undertaking was being managed in a manner detrimental to the industry and public interest, it ordered a take-over of the undertaking under the relevant statute. The Supreme Court adjudicating upon the decision of the government, observed that the company could have been given an opportunity to explain the evidence against it, as also an opportunity to be informed of the proposed action of take-over and to represent why it should not have been taken.
  3. Global Vectra Helicorp vs. Directorate General of Civil Aviation: Even in quasi-judicial proceedings, there is a duty cast on the adjudicating authority to disclose and supply copies of all the documents that may be available with it, enabling a noticee to effectively defend and rebut allegations contained in a show-cause notice. It is an established position of law that even if the details of the case against the noticee are not spelt out in the show cause notice, the noticee is entitled to be made aware of the material on the basis of which the proposed action is to be taken or is taken. The Government may or may not be required to give detailed information. In such a case, the Government is obliged to at least communicate the broad reasons on the basis of which the action is proposed or action in fact is taken.
  4. Union of India v. Ranu Bhandari: Where certain vital documents having direct bearing on a detention order against the detenu were withheld, preventing him from defending himself effectively, the court placed importance on the significance of effective representation. It held that irrespective of whether the detenu had knowledge of the documents and their contents or not, the documents must have to be supplied in compliance with Article 22(5) of the Constitution in order to effectuate proper representation.

Moreover, the courts have also observed that even when time is of essence, the cardinal principle of hearing cannot be martyred for administrative immediacy. Even when a decision has to be reached expeditiously, there ought to be a balance between the need for expedition and the need to give full opportunity to the defendant to see the material against him.

What other disclosure orders can be made by the court?

Other possible orders that the court might make in relation to disclosure are as follows (although in practice these orders are rarely made):

  • An order for a party to disclose the documents on which it relies and, at the same time, to request any specific disclosure it requires from any other party;
  • An order that directs, where practicable, disclosure to be given by each party on an issue-by-issue basis;
  • An order for each party to disclose documents which may reasonably contain information that will enable that party to advance its own case or damage the case of any other party, or leads to an enquiry that has either of those consequences;
  • An order dispensing with disclosure (although this is unlikely); or
  • Any other order that the court considers appropriate.

What is a disclosure report?

In multi-track cases, the Civil Procedure Rules provide that each party must file and serve a disclosure report not less than 14 days before the first case management conference (CMC). However the court can order that the disclosure report be filed and served earlier. In particular, the practice of the Chancery Division is to require the disclosure report to be filed and served at the same time as the Directions Questionnaire.

What must a disclosure report contain?

The disclosure report must:

  • Briefly describe matters such as the documents that exist that are (or may be) relevant to your case and where, and with whom, the documents are (or may be) located;
  • Describe how any electronic documents are stored;
  • Estimate the broad range of costs that could be involved in giving disclosure (whether it is standard disclosure or otherwise), including the costs of searching for and disclosing electronic documents); and
  • State which type of disclosure order will be sought.

What is pre-interview disclosure?

Pre-interview disclosure is not full disclosure but rather extracts of the pertinent elements of the investigation which should support the reasonable grounds for suspicion justifying the regulator treating the policyholder as a suspect. Technically, there is no obligation to comply with a request for such disclosure but it is usually provided as a failure to do so will most likely amount to a good reason for the lawyer to advise a suspect to remain silent.

If the disclosure does not reveal reasonable, objective grounds for the suspicion, then the lawyer can again consider directing the policyholder to remain silent during the interview and that no adverse inference should be drawn from this. Based on that disclosure, the lawyer may then make representations that the accused be reclassified as a witness to any investigation rather than a suspect and that no further action should be taken. If successfully argued, this will ultimately save the cost and time of a potentially protracted and expensive criminal case whilst simultaneously strengthening the liability stance in any linked civil case.

A criminal lawyer will be experienced in dealing with regulators and will know the correct questions to ask to elicit key information from them. This will allow the policyholder to fully understand the case against them and at the same time allow the insurer to form an initial view on liability, contributory negligence and the requirement for expert evidence (for example, forensic collision investigation report).

Disclosure and defending a charge

If a policyholder is charged with a criminal offence, the prosecuting body is required to disclose the initial details of the prosecution case. This can include witness evidence, photographs, electronic data and CCTV footage, however, the extent to which such information can be disclosed must be carefully considered before doing so.

Following a decision to prosecute, a criminal lawyer will carefully consider a policyholder's position and the merits of defending the charge(s).

It may be necessary, in matters where a non-guilty plea is to be entered, for a defence statement to be filed. Once the statement has been served the prosecuting body must revisit the evidence and consider whether further disclosure is necessary. A carefully worded statement will place the policyholder and insurer in the best possible position in both the criminal case and civil case, strengthening any defence and occasioning maximum disclosure relevant to the issue of liability.

What does the Book of Evidence contain?

The documents which must be served on you or your solicitor are as follows:

  • A statement of the charges against you
  • A copy of any sworn information (in writing) upon which the proceedings were started, that is, the written complaint made by a Garda
  • A list of the witnesses whom the DPP proposes to call at the trial
  • A statement of the evidence that is expected to be given by each witness at the trial
  • A copy of documentary evidence complied in the ordinary course of business which the DPP wishes to use
  • A list of any exhibits to be introduced at the trial.

Once the Book of Evidence is prepared, it is served on you. The serving of the Book of Evidence does not mean that the DPP cannot serve additional documents on you at a later stage.

At any time afterwards, the DPP must serve certain documents on you if they exist. These additional documents include:

  • A list of any further witnesses the DPP proposes to call at the trial
  • A statement of the evidence that is expected to be given by each witness whose name appears on the list of further witnesses
  • A statement of any further evidence that is expected to be given by any witness whose name appears on the earlier witness list
  • A copy of any further documentary evidence complied in the ordinary course of business which the DPP wishes to use
  • A list of any further exhibits

You have the right to inspect all exhibits mentioned in the list of exhibits.

Who compiles the Book of Evidence?

While the Book of Evidence is compiled and served on behalf of the DPP, it is normally the investigating Garda who is responsible for putting the Book of Evidence together. Work on the Book of Evidence starts immediately after your first appearance before the District Court.

As mentioned above, compiling a book of evidence can be a lengthy process especially if the case is complex and there are a large number of witnesses. Witness statements normally are the largest class of document included in a Book of Evidence. Statements from Gardaí, witnesses to the and expert witnesses (such as forensic experts and medical experts) are all gathered by the investigating Garda for inclusion in the Book of Evidence.

Which documents are privileged in disclosure?

The main categories of documents that are privileged are:

  • Confidential communications passing between you and your legal advisers, in which you are seeking or obtaining legal advice. It applies to transactional advice as well as advice regarding contentious matters. These documents are subject to legal advice privilege.
  • Confidential communications made when litigation is likely or has begun, passing between you and your legal advisers, where the main purpose of the communication is to seek or obtain evidence for use in the litigation, or to obtain or provide advice on the litigation. These documents are subject to litigation privilege. This also applies to communication between your lawyers and third parties in connection with this litigation.
  • Certain confidential communications between you and certain third parties, where the main purpose of the communication is to obtain legal advice on the litigation. These documents are also subject to litigation privilege.  However, please note that the scope of litigation privilege applying to communication between non-lawyers is limited.
  • Correspondence and other communications generated as part of a genuine attempt to settle an existing dispute. These documents are subject to “without prejudice” privilege.

Do I have to disclose confidential documents?

Unless you have a right or duty to withhold inspection, you will not be able to prevent your opponent from seeing any documents that are required to be disclosed just because they are confidential. However, the Civil Procedure Rules prevent a party that has acquired documents on disclosure from using those documents outside the litigation in which they are disclosed, except in certain circumstances: for example, if the court's permission is obtained.

If there are any commercially sensitive relevant documents that you do not want your opponent to see, we will need to consider whether (and, if so, to what extent) we can ask the court to put in place some specific protective measures. Sometimes, for example, it is possible to obtain an order that an opponent's legal advisers (but not the opponent) may inspect those documents.