Saturday, August 4, 2007

Disclosure in Criminal Proceedings

1 "Disclosure is one of the most important - as well as one of the most abused - of the procedures relating to criminal trials. There needs to be a sea-change in the approach of both judges and the parties to all aspects of the handling of the material which the prosecution do not intend to use in support of their case. For too long, a wide range of serious misunderstandings has existed . . ."

Disclosure: A protocol for the control and management of unused material in the Crown Court (20 February 2006 - Mr Justice Fulford and Mr Justice Oppenshaw et al).

2 The legal sources relating to disclosure can be neatly found in a variety of scattered sources:

i) the Criminal Procedure and Investigations Act 1996 as amended (the Act);
ii) the Code of Practice, issued under section 23 of the Act (the Code);
iii) Parts 25-28 of the Criminal Procedure Rules 2005 (the Rules);
iv) the Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 1997 issued under section 12 of the Act (the Regulations);
v) In addition, the Attorney General has issued Guidelines on Disclosure, which build on the existing law.

3 The correct test for disclosure will depend upon the date the relevant criminal investigation commenced:

i) In relation to offences in respect of which the criminal investigation began prior to 1 April 1997, the common law will apply, and the test for disclosure is that set out in R v Keane [1994] 1 W.L.R. 746; (1994) 99 Cr. App. R. 1.
ii) If the criminal investigation commenced on or after 1 April 1997, but before 4 April 2005, then the CPIA in its original form will apply, with separate tests for disclosure of unused prosecution material at the primary and secondary disclosure stages (the latter following service of a defence statement by the accused). The disclosure provisions of the Act are supported by the 1997 edition of the Code of Practice issued under section 23(1) of the CPIA (Statutory Instrument 1997 No. 1033).
iii) Where the criminal investigation has commenced on or after 4 April 2005, the law is set out in the CPIA as amended by Part V of the Criminal Justice Act 2003. There is then a single test for disclosure of unused prosecution material and the April 2005 edition of the Code of Practice under section 23(1) of the CPIA will apply (see SI 2005 No. 985).
iv) The CPIA also identifies the stage(s) at which the prosecution is required to disclose material, and the formalities relating to defence statements. The default time limit for prosecution disclosure is set out in section 13 of the Act. The time limits applicable to defence disclosure are set out in the Criminal Procedure and Investigations Act 1996 (Defence Disclosure Regulations) 1997 (S.I. 1997 No. 684).
v) Regard must be had to the Attorney General's Guidelines on Disclosure (April 2005). Although these do not have the force of law (R v Winston Brown [1995] 1 Cr. App. R. 191; [1994] 1 WLR 1599) they should be given due weight.
vi) Part 25 of the Criminal Procedure Rules 2005 (see SI 2005 No. 384) sets out the procedures to be followed for applications to the court concerning both sensitive and non-sensitive unused material. Part 3 of the Rules is also relevant in respect of the court's general case management powers, and parties should also have regard to the Consolidated Criminal Practice Direction.
vii) Parts 22 and 23 of the Criminal Procedure Rules are set aside to make provision for other rules concerning disclosure by the prosecution and the defence, although at the date of this Protocol there are no rules under those Parts.

The Disclosure Protocol

4 The Disclosure Protocol is concerned with the management of issues relating to unused material in the Crown Court. Its main feature is a requirement for strict compliance with the disclosure provisions of the Criminal Procedure and Investigations Act 1996 ("the Act"), and the statutory Code of Practice laid under section 23 of the Act, where they apply to the proceedings.

The "overarching principle"

5 The overarching principle is therefore that unused prosecution material will fall to be disclosed if, and only if, it satisfies the test for disclosure applicable to the proceedings in question, subject to any overriding public interest considerations.

The test for disclosure

6 The House of Lords indicated in R v H and C [2004] 2 AC 134 paragraph 35 that:

"If material does not weaken the prosecution case or strengthen that of the defendant, there is no requirement to disclose it."

7 The protocol, consistent with the need for strict compliance with the Act, requires an end to free-standing orders for disclosure by judges otherwise than those properly made in the context of hearings conducted under section 8 of the Act and r25.6 of the Criminal Procedure Rules, following service of a defence

Conclusions

8 Disclosure is an area of constantly shifting ground with the establishment attempting to limit not only its application, but also the time dedicated in court to determining issues falling under its ambit. A good understanding of the legal sources of disclosure responsibilities proves invaluable in this ever changing environment.

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Patent Law Basics for the Non-Practitioner - Part I of IV: OVERVIEW

A patent is a property right granted by the government of the United States to an inventor "to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States" for a limited time in exchange for public disclosure of the invention when the patent is granted. Article I, Section 8 of the United States Constitution grants Congress the power to enact laws relating to patents: "Congress shall have power... to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Pursuant to this grant of power, Congress has from time to time enacted various laws relating to patents, now codified in Title 35 of the United States Code (the "Patent Law Statute"). These laws established the United States Patent and Trademark Office ("USPTO") to administer the law relating to the granting of patents. The USPTO is an agency of the United States Department of Commerce providing patent and trademark protection to inventors and businesses for their inventions and corporate and product identification.

It is at the heart of patent law to encourage invention by granting inventors a monopoly over new product designs or functions for a limited time until expiration of the patent, after which expiration the public is free to copy and profit from the invention. Qualitex Co. v. Jacobson Products Co, Inc., 514 U.S. 159, 164-165 (1995). The Patent Law Statute provides that "whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title." 35 U.S.C. Section 101. A "process" is explicitly defined as a "process, art, or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material." 35 U.S.C. Section 100. The term "machine" as used in the statute is the same as used in standard language (e.g.: a human-made system or device made up of fixed and moving parts that perform tasks). The term "manufacture" refers to articles that are made, and includes all manufactured articles. The term "composition of matter" refers to chemical compositions, and may include mixtures of ingredients as well as new chemical compounds. These classes of subject matter taken together include practically all things that are made by man and the processes for making them.

Things which do not fall into one of the above classes of subject matter are not patentable. For instance, laws of nature and physical phenomena are not patentable subject matter. Furthermore, a patent cannot be obtained based upon a mere idea or suggestion. In other words, while a patent may be granted based upon a new process, machine, manufacture, or composition of matter, the mere idea or suggestion of the new process, machine, manufacture, or composition of matter, respectively, will not suffice. A complete description of the actual process, machine, manufacture, or composition of matter, respectively, is required.

Once issued, a patent grants the patent holder the right to exclude others from making, using, offering to sell, or selling the patented invention within the United States, or importing the patented invention into the United States, during the term of the patent. 35 U.S.C. Section 271. However, a patent does not grant the patent holder the right to make, use, offer for sale, sell or import the patented invention. For example, the issuance of a patent does not protect the patent holder from claims of infringement of the claims of other patents, the scope of which claims may include the patented subject matter.

A patent lasts for twenty years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the timely payment of maintenance fees. However, under certain circumstances, patent term extensions or adjustments may be available. U.S. patent grants are effective throughout the United States, U.S. territories, and U.S. possessions.

There are three basic types of patents:
1) Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;
2) Design patents regard inventions relating to new, original, and ornamental designs for articles of manufacture; and
3) Plant patents regard inventions, discoveries, and asexually reproductions of any distinct and new varieties of plants.

*This article is for informational purposes only. This article does not constitute legal advice, and no attorney-client relationship exists between its reader and Zuber & Taillieu LLP or any of its attorneys. If you seek legal advice in a particular matter, you should seek the counsel of a lawyer experienced in the relevant area of law, rendered with the lawyer's full knowledge of the facts relevant to such matter.

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