Defence participation through pre-trial disclosure: issues and implications

The Criminal Procedure and Investigations Act 1996 imposed, for the first time in the history of English criminal procedure, a general duty on the defence to disclose the details of its case ahead of trial. These disclosure requirements have been augmented by the case management provisions of the Criminal Procedure Rules and judicial responses to the perceived need to tackle ambush defences. The defence disclosure regime has changed the role of the defence as a participant in the criminal process. It raises issues of principle in terms of its effect on fair trial rights and has implications for the nature of English criminal procedure. This article examines these issues and implications; it reveals that the defence disclosure regime has caused a shift in the English criminal process further away from an adversarial style contest towards a participatory model of procedure.