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Home » Professionals » Legal Guidance » D to G » Disclosure Manual

Disclosure Manual

This manual applies to all investigations commenced on or after 4 April 2005. The detailed guidance at paragraph 1.18 should be considered where the investigation began before this date.

Foreword

Disclosure is one of the most important issues in the criminal justice system . the application of proper and fair disclosure is a vital component of a fair criminal justice system. The "golden rule" is that fairness requires full disclosure should be made of all material held by the prosecution that weakens its case or strengthens that of the defence.

Lord Goldsmith, HM Attorney General

[There is a] need for very great care in handling the whole process of disclosure.

Lord Bingham, R v H and C, 2004

He who knows only his side of the case knows little of that.

John Stuart Mill, 1859

The scheme set out in the Criminal Procedure and Investigations Act 1996 as amended (the Act) and the revised Code of Practice issued under it (the Code) is designed to ensure that there is a fair system for the disclosure of unused material, which assists the defence in the timely preparation and presentation of its case, does not overburden the parties and enables the court to focus on all the important issues in the trial.

The operational instructions contained in this manual are designed to provide a practical guide to disclosure principles and procedures, building on the framework of the Act, the Code and the Attorney General's Guidelines. When properly applied, they will assist investigators and prosecutors to perform their disclosure duties effectively, fairly and justly, which is vitally important to the integrity of the criminal justice system and the way in which it is perceived by the public we serve.

This manual reflects the Prosecution Team approach to our respective disclosure obligations and is to be regarded as the authoritative guidance on practice and procedure for all police investigators and CPS prosecutors.

Signature of Ken Macdonald QC
Ken Macdonald QC
Director of Public Prosecutions

Signature of Maria Wallis
Chief Constable, Devon and Cornwall
On behalf of the Association of Chief Police Officers

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Part 1 Disclosure practice and procedure

Chapter 1 Introduction

  1. These instructions explain how the Police Service and the CPS ('the prosecution team') have agreed to fulfil their duties to disclose unused material to the defence [Note: These instructions will apply to those investigations conducted by the Serious and Organised Crime Agency that are prosecuted by the CPS]. These duties arise under statute and at common law. It is important that the prosecution team adopt consistent practices across England and Wales.
  2. These instructions contain advice on efficient file management and take into account the provisions in the Prosecution Team Manual of Guidance for the Preparation, Processing and Submission of Files and other agreements on operational issues reached between the Association of Chief Police Officers (ACPO) and the CPS. This means that on occasions these instructions require certain actions to be taken in addition to those required by the Act and the Code. This is designed to ensure that the statutory duties are carried out promptly, efficiently and effectively.
  3. The current law is set down in:
  4. In addition, there is the Crown Court Disclosure Protocol on Unused Material and the Attorney General's Guidelines on Disclosure, which build on the existing law.

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    Interpretation

  5. For the purpose of these instructions, references to unused material are to material that may be relevant to the investigation that has been retained but does not form part of the case for the prosecution against the accused.
  6. Relevant material is defined in the Code as anything that appears to an investigator, or the officer in charge of an investigation or the disclosure officer to have some bearing on any offence under investigation or any person being investigated or on the surrounding circumstances unless it is incapable of having any impact on the case.
  7. Revelation refers to the police alerting the prosecutor to the existence of relevant material that has been retained in the investigation. Revelation to the prosecutor does not mean automatic disclosure to the defence.
  8. Disclosure refers to providing the defence with copies of, or access to, any material which might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused, and which has not previously been disclosed. In this manual, this is referred to as 'the disclosure test'.

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    Triggers for statutory disclosure

  9. The prosecutor's statutory duty to disclose unused material to the accused is triggered by:
    • a plea of not guilty in the magistrates' court
    • committal or transfer of a case for trial at the Crown court
    • the preferment of a voluntary bill of indictment
    • the service of the prosecution case following the sending of an accused to the Crown court under section 51(1) Crime and Disorder Act 1998.

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    Consequences of non-disclosure

  10. Investigators and disclosure officers must be fair and objective and must work together with prosecutors to ensure that disclosure obligations are met [Note: Investigators and disclosure officers includes SOCA staff, however designated]. A failure by the prosecutor or the police to comply with their respective obligations under the Act or the Code may have the following consequences:
    • the accused may raise a successful abuse of process argument at the trial
    • the prosecutor may be unable to argue for an extension of the custody time limits
    • the accused may be released from the duty to make defence disclosure
    • costs may be awarded against the prosecution for any time wasted if prosecution disclosure is delayed
    • the court may decide to exclude evidence because of a breach of the Act or Code, and the accused may be acquitted as a result
    • the appellate courts may find that a conviction is unsafe on account of a breach of the Act or Code
    • disciplinary proceedings may be instituted against the prosecutor or a police officer.
  11. It is therefore important to ensure that the duties imposed by the Act and the Code are scrupulously observed. If the prosecutor is satisfied that a fair trial cannot take place because of a failure to disclose which cannot or will not be remedied, including by, for example, making formal admissions, amending the charges or presenting the case in a different way so as to ensure fairness or in other ways, he or she must not continue with the case.
  12. The accused has responsibilities under the Act and failure to comply with them may have the following consequences:
    • loss of entitlement to make an application under section 8 of the Act for disclosure of additional material
    • appropriate comments on any faults by the accused in disclosure
    • the court or jury can draw inferences from any failure in deciding whether the accused is guilty of an offence.
  13. The proper application of the provisions of the Act by the prosecution team will ensure that only material required to be disclosed by the Act is disclosed. There is no place in law or otherwise for 'blanket' disclosure. Such practice leads to inconsistency and uncertainty, unnecessary work, and unnecessary costs to the prosecution, defence and public funds.

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    The link between disclosure & the investigation

  14. The prosecution team's duties under the Act are not simply about compiling schedules of unused material as part of preparation for court. At the heart of every investigation is the obligation, in the Act and Code, to pursue all reasonable lines of enquiry whether these point towards or away from the suspect.
  15. In the early stages of the investigation it may not be clear whether an offence has been committed, whether a prosecution is likely to follow and whether material obtained may be used in evidence or will be unused. Following reasonable lines of enquiry and recording and retaining relevant material involve the exercise of considerable professional expertise.
  16. The Act and Code determine the extent of the enquiries that should be made, the material that should be discarded or retained, and the material that is considered relevant, revealed and, where required, disclosed. The distinction between evidential and unused material often only becomes apparent as the investigation progresses. The prosecution team should take the opportunity to confirm or rebut potential and proffered defences, and should be aware of the extent to which any disclosable material might weaken the case. A safe and successful prosecution requires a dedicated and professional approach.

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    Application of the Act and Code to non-police investigators

  17. Any person other than a police officer who is charged with the duty of conducting a criminal investigation as defined in the Act shall have regard to the relevant provisions of the Code and should take these into account in applying their own operating procedures.

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    The applicable disclosure provisions

  18. The obligations in relation to unused material and disclosure are determined by the date on which the investigation began.
  19. The date on which the investigation began will determine
    • whether the Act applies at all
    • whether the amendments to the Act as a result of Part 5 of the Criminal Justice Act 2003 apply
    • which edition of the Code will apply (i.e. the 1997 edition, or the 2005 edition) should be referred to
    • whether the 2002 edition of the Joint Operational Instructions (JOPI) or this edition of the Disclosure Manual should be referred to.
  20. Therefore
    • where the investigation began before 1 April 1997, the common law disclosure rules will apply. Investigators and prosecutors should refer to the 2000 Guidelines, the 1997 Code and the 2002 JOPI
    • where the investigation began on or after 1 April 1997 but before 4 April 2005, then the unamended Act will apply, and investigators and prosecutors should refer to the above editions of the Code and the JOPI
    • where the investigation began on or after 4 April 2005, then the Act, as amended by the CJA 2003, applies. Investigators and prosecutors should therefore refer to the 2005 editions of the Code, and this edition of the Disclosure Manual (formerly the JOPI).
  21. All judicial interpretations of the Act and Code from time to time will continue to apply, (for example, R v H and C (2004) UKHL 3).
  22. The investigator should inform the prosecutor of the date when the investigation began. In cases of any doubt, the prosecutor should establish with the investigator the date when the investigation began. This is so even where the accused has been charged with an offence other than that for which he or she was originally investigated and arrested. It may be that separate investigations were commenced either side of one of the relevant dates in 1.19 above as a result of which an accused is charged with separate offences. This may mean that two different disclosure regimes will apply to different charges in the same proceedings.

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Chapter 2 General duties of disclosure outside the Act

General principles

  1. The duties of revelation and disclosure do not only arise under the Act. Further legal obligations arise which assist:
    • the prosecutor in determining whether a person should be charged with an offence (revelation by the police)
    • the accused by providing certain material during the early stages of a prosecution (common law disclosure to the accused).

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    Revelation and charging

  2. The investigator must inform the prosecutor as early as possible whether any material weakens the case against the accused.
  3. In the guidance to police officers and Crown prosecutors issued by the Director of Public Prosecutions under section 37A of the Police and Criminal Evidence Act 1984, an evidential report to a prosecutor for a charging decision must contain the key evidence upon which the prosecution will rely together with any unused material which satisfies the disclosure test. This duty arises outside the Act.
  4. In some cases referred to prosecutors for a charging decision, the officer may submit an expedited report. This report must be accompanied by any other information that may have a bearing on the evidential test. This is bound to include a consideration of whether there is unused material which affects the strength of the prosecution case.

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    Disclosure and early stages of a prosecution

  5. Section 3 of the Act envisages the possibility that some disclosure may already have been made before the statutory duty to make initial disclosure arises. This early disclosure is known as common law disclosure, on which detailed guidance is given in R v DPP ex parte Lee [1999] 2 All ER 737.
  6. In the majority of cases, the police and the prosecutor will already have worked together in determining that the accused should be charged. After charge the officer in the case is required to certify on the initial file (on form MG1) that to the best of the officer's knowledge and belief no information has been withheld which would assist the accused in the preparation of the defence case, including the making of a bail application.
  7. From the start of any prosecution, the prosecutor should consider what (if any) immediate disclosure should be made in the interests of justice and fairness in the particular circumstances of the case. Examples of what should be disclosed are:
    • any previous convictions of the victim or a key witness if that information could reasonably be expected to assist the accused when applying for bail
    • material which might enable an accused to make a pre-committal application to stay the proceedings as an abuse of process
    • material which might enable an accused to submit that a committal should only take place on a lesser charge or that committal should not take place at all, and/or
    • material which would enable an accused to prepare for trial which may be significantly less effective if disclosure is delayed (e.g. names of eye witnesses whom the prosecution do not intend to use).
  8. This list is not exhaustive and the prosecutor is not required to give full disclosure at this early stage. Disclosure prior to the statutory duty arising will not exceed the disclosure which would be required under the Act.
  9. The investigator or disclosure officer must reveal to the prosecutor any material that is relevant to sentence (for example, information which might mitigate the seriousness of the offence or assist the accused in laying some blame upon a co-accused or another).

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    Special circumstances

  10. The duty of disclosure continues as long as proceedings remain, whether at first instance or on appeal (R v Makin [2004] EWCA CRIM 1607). While the Court of Appeal in Makin did not purport to lay down any general test to be applied for disclosure on appeal, prosecutors should apply disclosure test in the interests of justice. It is suggested that those interests do not require disclosure beyond that which is obtainable under the Act. The defence case should be assessed as that advanced at trial or, if matters are raised on appeal which were not raised during the trial process, as set out in the appellant's draft or perfected grounds of appeal.
  11. Where disclosure takes place informally, in correspondence or between advocates in court, prosecutors and caseworkers must still ensure a clear record is made on the disclosure record sheet of all material that is actually disclosed at any stage of the proceedings.
  12. Disclosure of any material that is made outside the ambit of Act will attract confidentiality by virtue of Taylor v SFO [1998] 4 All ER 801.
  13. The interests of justice will mean that where material comes to light after the conclusion of the proceedings that might cast doubt upon the safety of the conviction, there is a duty to consider disclosure. Any such material should be brought immediately to the attention of the CPS unit head or Special Casework Lawyer.

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Chapter 3 Roles and responsibilities

  1. The Code requires the police to record and retain material obtained in a criminal investigation which may be relevant to the investigation. In particular:
    • all police officers have a responsibility to record and retain relevant material obtained or generated by them during the course of the investigation. Material may be photographed, video-recorded, captured digitally or otherwise retained in the form of a copy rather than the original, if the original is perishable, or the retention of a copy rather than the original is reasonable in all the circumstances
    • the officer in charge of the investigation has special responsibility to ensure that the duties under the Code are carried out by all those involved in the investigation, and for ensuring that all reasonable lines of enquiry are pursued, irrespective of whether the resultant evidence is more likely to assist the prosecution or the accused
    • the Code creates the roles of disclosure officer and deputy disclosure officer, with specific responsibilities for examining material, revealing it to the prosecutor, disclosing it to the accused where appropriate, and certifying to the prosecutor that action has been taken in accordance with the Code
    • the disclosure officer is required to create schedules of relevant unused material retained during an investigation and submit them to the prosecutor together with certain categories of material
    • non-sensitive material should be described on form MG6C and sensitive material should be described on form MG6D.
  2. The chief officer of police for each police force is responsible for putting in place arrangements to ensure that in every investigation the identity of the officer in charge of an investigation and that of the disclosure officer is recorded. It is his or her duty to ensure that disclosure officers and deputy disclosure officers have sufficient skills and authority, commensurate with the complexity of the investigation, to discharge their functions effectively.
  3. An investigator, a disclosure officer and an officer in charge of an investigation perform different functions. The three roles may be performed by different people or by one person.
  4. Where the three roles are undertaken by more than one person, close consultation between them will be essential to ensure compliance with the statutory duties imposed by the Act and the Code.
  5. The officer in charge of the investigation is responsible for directing an investigation. This officer's responsibilities under the Act and the Code are to:
    • account for any general policies followed in the investigation
    • ensure that all reasonable steps are taken for the purposes of the investigation and, in particular, that all reasonable lines of enquiry are pursued
    • ensure that proper procedures are in place for recording and retention of material obtained in the course of the investigation
    • appoint the disclosure officer
    • ensure that where there is more than one disclosure officer, that one is appointed as the lead disclosure officer who is the focus for enquiries and who is responsible for ensuring that the investigators' disclosure obligations are complied with
    • ensure that an individual is not appointed as disclosure officer, or allowed to continue in that role, if that is likely to result in a conflict of interest, for instance, if the disclosure officer is the victim of the alleged crime which is the subject of the investigation. The advice of a more senior officer must always be sought if there is doubt as to whether a conflict of interest precludes an individual acting as disclosure officer. If thereafter the doubt remains, the advice of the prosecutor should be sought
    • ensure that tasks delegated to civilians employed by the police force or to other persons participating in the investigation under arrangements for joint investigations have been carried out in accordance with the requirements of the Code
    • ensure that material which may be relevant to an investigation is retained and recorded in a durable and retrievable form
    • ensure that all retained material is either made available to the disclosure officer, or in exceptional circumstances revealed directly to the prosecutor
    • ensure that all practicable steps are taken to recover any material that was inspected and not retained, if as a result of developments in the case it later becomes relevant.
  6. An investigator is any police officer or police support employee (PSE) involved in a criminal investigation. All such police officers or PSEs, including those who may not view themselves as investigators, have a responsibility for carrying out the duties imposed under the Code. All officers, in particular must retain material obtained in a criminal investigation which is either created or discovered during the investigation, and which may be relevant to the investigation.
  7. The investigator must notify the disclosure officer of the existence and whereabouts of material that has been retained.
  8. Officers and PSEs have a personal responsibility to reveal all relevant misconduct relating to them, using form MG6B. Detailed guidance is given at chapter 18.
  9. The disclosure officer and any deputy disclosure officer have a statutory duty to discharge disclosure responsibilities throughout a criminal investigation, namely to:
    • examine, inspect, view or listen to all relevant material that has been retained by the investigator and that does not form part of the prosecution case
    • create schedules that fully describe the material
    • identify all material which satisfies the disclosure test using the MG6E
    • submit the schedules and copies of disclosable material to the prosecutor
    • at the same time, supply to the prosecutor a copy of material falling into any of the categories described in paragraph 7.3 of the Code and copies of all documents required to be routinely revealed and which have not previously been revealed to the prosecutor
    • consult with and allow the prosecutor to inspect the retained material
    • review the schedules and the retained material continually, particularly after the defence statement has been received, identify to the prosecutor material that satisfies the disclosure test using the MG6E and supply a copy of any such material not already provided
    • schedule and reveal to the prosecutor any relevant additional unused material pursuant to the continuing duty of disclosure
    • certify that all retained material has been revealed to the prosecutor in accordance with the Code
    • where the prosecutor requests the disclosure officer to disclose any material to the accused, give the accused a copy of the material or allow the accused to inspect it.
  10. The disclosure officer may be a police officer or a civilian. In order to perform the duties under the Code properly, the disclosure officer will need to become fully familiar with the facts and background to the case. The investigator(s) and the officer in charge of the investigation (where these roles are performed by a different individual from the disclosure officer) must provide assistance to the disclosure officer in performing this function.
  11. In some cases it will be desirable to appoint a disclosure officer at the outset of the investigation. In making this decision, the officer in charge of the investigation should have regard to the nature and seriousness of the case, the volume of material which may be obtained or created, and the likelihood of a committal or a not guilty plea. If not appointed at the start of an investigation, a disclosure officer must be appointed in sufficient time to be able to prepare the unused material schedules for inclusion in the full file.
  12. Deputy disclosure officers can be appointed to examine parts of the material and reveal it to the prosecutor. For instance, where a police investigation has been intelligence led, there may be a deputy disclosure officer appointed just to deal with intelligence material which, by its very nature, is likely to be sensitive.
  13. Where the prosecutor consults with the lead disclosure officer, for example, when he provides a copy of the defence statement, the lead disclosure officer should inform any deputy disclosure officer who has provided schedules to the prosecutor.
  14. The officer in charge of an investigation may delegate certain tasks to civilians employed by the police such as SOCO and fingerprint officers. The officer in charge of an investigation must ensure that those tasks have been carried out in accordance with the Code.

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Chapter 4 Reasonable lines of enquiry and third parties

Lines of enquiry

  1. Duties of disclosure under the Act are imposed upon two categories of persons only: the investigator and the prosecutor. All other categories of persons are to be treated as third parties, rather than as belonging to the prosecuting or investigating team. Third parties frequently encountered will include:
    • owners of CCTV material
    • social services departments
    • forensic experts
    • police surgeons
    • GPs and hospital authorities.
  2. There is a duty under the Code for an investigator to pursue all reasonable lines of enquiry, whether these point towards or away from a suspect. What is reasonable will depend upon the circumstances of a particular case.
  3. Where police and another investigating agency (such as the Immigration Service, or a foreign police force) undertake a joint investigation, material obtained within the remit of that joint investigation should be treated as prosecution material and dealt with in accordance with this manual. See further guidance at chapter 35.
  4. Investigators, disclosure officers and prosecutors must have regard to whether relevant material may exist in relation to other linked investigations or prosecutions. Reasonable enquiries must be carried out to establish whether such material exists and, if so, whether it may be relevant to the instant prosecution.
  5. Reasonable lines of enquiry may include enquiries as to the existence of relevant material in the possession of a third party. It is not necessary to make speculative enquiries, but frequently the existence of the material will be known or can be deduced from the circumstances. For example, where a child witness is in the care of the local authority, the social services may have relevant material relating to the allegation under investigation.
  6. A third party has no obligation under the Act to reveal material to the investigator or to the prosecutor, nor is there any duty on the third party to retain material which may be relevant to the investigation. In some circumstances, the third party may not be aware of the investigation or prosecution.
  7. If the officer in charge of the investigation, the investigator, or the disclosure officer believes that a third party holds material that may be relevant to the investigation, that person or body should be told of the investigation. They should be alerted to the need to preserve relevant material. Consideration should be given as to whether it is appropriate to seek access to the material, and if so, steps should be taken to obtain such material. It will be important to do so if the material or information is likely to satisfy the disclosure test. A letter should be sent to the third party together with the explanatory note, specimens of which can be found at Annex B and B1. (The principles and procedures relevant to dealing with third parties who may be in possession of unused material are summarised in the note).
  8. The disclosure officer should inform the prosecutor of the identity of the third party and the nature of the material the third party is believed to possess by way of the MG6. In some circumstances it may be appropriate for the disclosure officer and the investigator to consider with the prosecutor whether the third party should be approached and further material sought or inspected.
  9. If material relevant to the investigation comes to the knowledge of the investigator and is then obtained from a third party, it will become unused material or information within the terms of the Code. This applies particularly to relevant information conveyed verbally by the third party. Any such material should be recorded in a durable or retrievable form (for example potentially relevant information revealed in discussions at a child protection conference attended by police officers). It will have to be recorded on the appropriate schedule and revealed to the prosecutor in the usual way.
  10. If the disclosure officer alerts the prosecutor to the possibility that a third party has material or information that has a bearing on the case or where it may be deduced from the circumstances of the case, the prosecutor should consider whether it is appropriate to advise the police to seek access to the material as part of their duties to explore all reasonable lines of enquiry.
  11. In R v Alibhai, [2004] EWCA Crim 681, the Court of Appeal held that under the Act the prosecutor is only under a duty to disclose a third party's material if that material had come into the prosecutor's possession and the prosecutor was of the opinion that such material satisfied the disclosure test. Before taking steps to obtain third party material, the Court emphasised that it must be shown that there was a suspicion that the third party not only had relevant material and that the material was not merely neutral or damaging to the accused but satisfied the disclosure test.
  12. Furthermore, R v Alibhai states that even if there is the necessary suspicion, the prosecutor has a "margin of consideration" as to what steps to take in any particular case and was not thus under an absolute obligation to obtain material that was suspected to satisfy the disclosure test.
  13. In advising the police on whether to approach a third party, the prosecutor should consult with the disclosure officer, the investigator and if necessary with the officer in charge of the investigation. Where a local protocol for the social services material has been adopted, prosecutors should access and handle material in accordance with its terms.
  14. Any material provided by a third party at the request of the investigator and supplied to the investigator will also be subject to the requirements of the Act.
  15. If relevant material held by third parties is inspected by the police but not retained, a record of its content must be made. This should then be referred to on the appropriate schedule. An example might be where an investigator examines relevant material held by a third party, but decides not to obtain it. The record of information obtained in this way should then be assessed for sensitivity and disclosure to the defence as for all other unused material.

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    Obtaining access to third party material

  16. Where having received a request from the investigator or prosecutor the third party refuses to co-operate, the prosecutor should consider whether to make an application for a witness summons. Where the prosecutor believes that there is material that satisfies the disclosure test, he or she should nevertheless only make an application where the statutory conditions are satisfied as set down in section 97 of the Magistrates' Court Act 1980 or in the Crown court, section 2 Criminal Procedure (Attendance of Witnesses) Act 1965 as amended.
  17. Where access to the material is declined or refused by the third party and the investigator believes that it is reasonable to seek production of the material before a suspect is charged because he or she believes it is likely to be relevant evidence and of substantial value, the investigator may consider making an application under Schedule 1 of the Police and Criminal Evidence Act (PACE) 1984, (Special Procedure Material), a search warrant and/or the Bankers Books Evidence Act 1935. The investigator may seek advice of the prosecutor before such an application is made.
  18. The statutory requirements in 4.16 above are more stringent than the disclosure test. Items sought under the summons procedure must be 'likely to be material evidence,' (which the House of Lords in R v Derby Magistrates' Court ex parte B [1995] 4 All ER 526 has construed to mean 'immediately admissible per se.') Accordingly, there should be consultation between the investigator and the prosecutor before any application to the court is made to assess whether it can properly proceed. (The transcript of R v Brushett (2001) Crim LR 471, illustrates an approach, commended by the Court of Appeal, where a pragmatic and co-operative stance was taken by social services and material revealed to the prosecution).
  19. Before applying for the witness summons it may be appropriate to make a formal request directly to the third party (see specimen letter at Annex B1). The request should explain:
    • what material or information it is thought that the third party holds
    • the reasons why access to the material is sought
    • the known or suspected issues in the case
    • what will happen to the material if it is released
    • that views are invited from the third party on whether the material is considered sensitive
    • what will happen if the material is not released.
  20. A suitable time should be given for a response before making the application for the witness summons.
  21. Applications for witness summonses must be in accordance with Part 28 of the Criminal Procedure Rules 2005.
  22. If the prosecutor believes there is relevant material which the third party has declined to reveal, but grounds for witness summons are not made out, the prosecutor should notify the court and where appropriate the defence (unless in the case of the defence, for example, an intelligence operation could be compromised).
  23. Where material is obtained from third parties, the investigator should discuss with them whether any sensitivities attach to the material that might influence whether it is used as evidence, or otherwise disclosed to the defence, or whether there may be public interest reasons that justify withholding disclosure. The third party's view must be passed to the prosecutor using the MG6D.

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    Public bodies as third parties

  24. Where it appears to an investigator, disclosure officer or prosecutor that a Government department or other Crown body has material that may be relevant to an issue in the case, reasonable steps should be taken to identify and consider such material. Although what is reasonable will vary from case to case, prosecutors should inform the department or other body of the nature of the prosecution case and of the issues in the case in respect of which the department or body might possess relevant material, and ask whether the departments or other body has such material.
  25. Departments in England and Wales should have identified personnel as established Enquiry Points to deal with issues concerning the disclosure of information in criminal proceedings.
  26. Public authorities ought to recognise an obligation to respond to a request for information for the purposes of a criminal investigation or prosecution, and Government departments will always do so.
  27. It should be remembered that investigators, disclosure officers and prosecutors cannot be regarded to be in constructive possession of material held by Government departments or Crown bodies simply by virtue of the status as Government departments or Crown bodies.

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Chapter 5 Relevance, recording and retention

  1. The Code requires that material of any kind, including information and objects, which is obtained in the course of a criminal investigation as defined by the Act and which may be relevant to the investigation must be retained.
  2. Material which may be relevant to the investigation is defined in the Code as anything that appears to an investigator, or the officer in charge of an investigation or the disclosure officer to have some bearing on any offence under investigation or any person being investigated or on the surrounding circumstances unless it is incapable of having any impact on the case.
  3. This includes not only material coming into the possession of the investigator (such as documents seized in the course of searching premises) but also material generated by the investigator (such as interview records).
  4. A criminal investigation is defined in the Act as an investigation conducted by police officers with a view to it being ascertained whether a person should be charged with an offence, or whether a person charged with an offence is guilty of it.
  5. The Code expands this by stating that a criminal investigation includes:
    • investigations into crimes that have been committed
    • investigations whose purpose is to ascertain whether a crime has been committed, with a view to the possible institution of criminal proceedings and
    • investigations which begin in the belief that a crime may be committed. For example, a surveillance operation is part of an investigation even if it is directed to a target without there being a specific offence in mind.
  6. This means that information and material arising out of operations conducted purely for intelligence purposes might become disclosable (subject to public interest immunity (PII) considerations). Officers involved in intelligence operations should regularly and actively consider whether the information that they have has a bearing upon any live investigations or prosecutions, and if so, act quickly to ensure it is brought to the attention of the disclosure officer and prosecutor.
  7. If material with an evidential value has been destroyed, there is a danger that a court may stay the prosecution for abuse of process.
  8. In discharging their obligations under the Act, the Code, the Attorney General's Guidelines, the common law and these operational instructions, investigators should always err on the side of recording and retaining material where they have any doubt as to whether it may be relevant.
  9. Material includes information given orally. Where relevant material is not recorded in any way, it will need to be reduced into a suitable form.
  10. It is the responsibility of the officer in charge of the investigation to ensure that the material is recorded in a durable or retrievable form, for instance, in writing, on video or audiotape, or on computer disk.
  11. The issue of relevance is especially important where an investigator is considering whether:
    • to throw something away, or
    • to return an item to the owner, or
    • not to record information, or
    • where not keeping material or recording information would result in the permanent loss or alteration of the material (as with reusable control room tapes, shop videos etc).
  12. As a general rule, pure opinion or speculation, for example police officers' theories about who committed the crime, is not unused material. However, if the opinion or speculation is based on some other information or fact, not otherwise notified or apparent to the prosecutor, that information or fact might well be relevant to the investigation and should be notified to the prosecutor in accordance with these instructions.
  13. Reports, advices and other communications between the CPS and police in themselves will usually be of an administrative nature or derivative in that they contain professional opinion based on evidential material or material already subject to revelation. They will usually have no bearing on the case and thus will not be relevant. If the content of any such document is however relevant and not recorded elsewhere then the material should be dealt with in accordance with these instructions and described on the appropriate schedule. The prosecutor must not assume that there is no basis for disclosure.
  14. Disclosure officers, or their deputies, must inspect, view or listen to all material that is or may be relevant. Generally this will mean that such material must be examined in detail by the disclosure officer or his deputy, but occasionally the extent and manner of inspecting, viewing or listening will depend on the nature of material and its form. For example, it might be reasonable to examine digital material by using software search tools, or to establish the contents of large volumes of material by dip-sampling. If such material is not examined in detail, it must nonetheless be described on the disclosure schedules accurately and as clearly as possible. The extent and manner of its examination must also be described together with justification for such action.
  15. Early in an enquiry it may not be possible to make a considered decision on the relevance of an item until later in the case when the facts are clearer. However, at any time the considerations that the investigator should bear in mind will include:
    • whether the information adds to the total knowledge of how the offence was committed, who may have committed it, and why
    • whether the information could support an alternative explanation, given the current understanding of events surrounding the offence
    • what the potential consequences will be if the material is not preserved.
  16. Negative information can sometimes be as significant to an investigation as positive information. It is impossible to define precisely when negative information may be significant, as every case is different. However it will include the result of any enquiry that differs from what might have been expected, given the prevailing circumstances. Not only must material or information that points towards a fact or an individual be retained, but also that which casts doubt on the suspect's guilt, or implicates another person. Examples of negative information include:
    • a CCTV camera that did not record the crime/location/suspect in a manner which is consistent with the prosecution case. (The fact that a CCTV camera did not function or have videotape loaded will not usually be considered relevant negative information.)
    • where a number of people present at a particular location at the particular time that an offence is alleged to have taken place state they saw nothing unusual
    • where a finger-mark from a crime scene cannot be identified as belonging to a known suspect
    • any other failure to match a crime scene sample with one taken from the accused.
  17. It is important to record promptly any information from any source, which might be considered relevant to the investigation. A record should be made at the time the information is obtained, or as soon as practicable after that time.
  18. Sometimes it is not practicable to retain the initial record because it forms part of a larger record which is to be destroyed, for example, control room audio tapes, custody suite video tapes, traffic car videos of speeding offences, or other similar recordings. Where this is the situation, the officer in charge of the investigation should identify information that should be retained, and ensure that it is transferred accurately to a durable and retrievable form before the tapes are destroyed.
  19. Investigators should be alert to the potential relevance and evidential value of information contained in messages that might not normally be retained; for example, running commentaries and details of a pursuit. Investigators should make a record of conversations with experts and other investigators, where the information discussed is likely to be relevant to the case and is not recorded elsewhere.
  20. Whether in original or copy form, details of preserved messages should be listed on the schedule(s) in the normal way.

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    Information recorded on computer

  21. It is difficult to give clear-cut guidance on the approach to be adopted when dealing with information recorded on computer, owing to the wide range of investigative computer systems employed throughout the Police Service. But many computer systems (for example, Holmes2) generate material in the form of a hard copy. This should be treated in the same way as relevant material from any other source. Further guidance on how Holmes2 is used to handle disclosure is set out in chapter 31.
  22. The investigator or disclosure officer will need to inform the prosecutor of the use of such systems, and the disclosure officer should describe any hard copies produced on the schedules. Local arrangements may need to be agreed as to the means by which the prosecutor can inspect material held on computer systems. Where material is to be disclosed to the defence under the Act, supervised access to a terminal screen may be appropriate. Material may be supplied on a disk where this is acceptable to the accused and the disclosure officer.
  23. Information contained in emails may be relevant unused material, particularly if the information is not recorded elsewhere. It should be recorded, retained and revealed in the same way as other relevant material. (Where however, emails are intercepted under section 5 of the Regulation of Investigatory Powers Act 2000, revelation and disclosure is specifically prohibited.)

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    Retention

  24. Where material was obtained in the course of an investigation because the investigator originally considered it potentially relevant, but it has in fact no bearing on the offence, the offender or the surrounding circumstances, it need not be retained further. If it is retained, it should not be handled in accordance with the Act. However the investigator should err on the side of caution in coming to this conclusion and seek the advice of the prosecutor as appropriate.
  25. If during the lifetime of a case, the officer in charge of an investigation or the prosecutor becomes aware that material previously examined but not retained may have become relevant as a result of new developments, paragraph 5.3 of the Code will apply. The officer should take steps to recover the material wherever practicable, or ensure that it is preserved by the person in possession of it.
  26. Particular categories of material that must be retained are listed in paragraphs 5.4 and 5.5 of the Code. The list is not exhaustive, and there may be other material that must be retained because it may be relevant. Examples of specific items which fall into these categories are listed in Annex A.
  27. Whatever the source, if the material is relevant, it must be retained. Material may be photographed, video-recorded, captured digitally or otherwise retained in the form of a copy rather than the original at any time, if the original is perishable; the original was supplied to the investigator rather than generated by him and is to be returned to its owner; or the retention of a copy rather than the original is reasonable in all the circumstances.
  28. Material seized under the provisions of PACE will be subject to the retention provisions of section 22 PACE and PACE Code B.

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Chapter 6 Scheduling

Preparation of schedules generally

  1. The disclosure officer is responsible for preparing the schedules and submitting them to the prosecutor. The schedules, signed and dated by the disclosure officer, should be submitted to the prosecutor with a full file.
  2. Where the disclosure officer is unsure whether an item is relevant to the investigation and should therefore be described on a schedule, the prosecutor should be consulted as soon as practicable.
  3. In some cases there may be advantages in starting the schedule(s) at an early stage. The officer in charge of the investigation will need to consider at what stage the schedules should be prepared, and when to appoint a disclosure officer. It is not necessary to maintain schedule(s) of unused material from the start of all investigations. During the course of the investigation it may not be possible to decide whether particular material will eventually form part of the prosecution case, or will remain unused.
  4. Where working schedules or draft lists have been created as the investigation progressed, the disclosure officer must check the contents and consolidate the items into two schedules for the prosecutor describing:
    • any non-sensitive unused material (MG6C)
    • any sensitive unused material (MG6D)
  5. Draft schedules or lists used to prepare the final schedule need not be retained or described on the MG6C.
  6. Any comments, observations or explanations regarding the contents of the schedules should be made on the MG6, which should accompany the submission of the MG6C and MG6D.
  7. The disclosure officer must also indicate on the MG6 whether the investigation started on or after 4 April 2005. This will tell the prosecutor which provisions to apply in disclosing material to the accused (see paragraphs 1.18 - 1.22 above). It will also inform the prosecutor of what obligations will apply to the accused.
  8. All items of material relevant to the investigation must be described on one of the above schedules for the prosecutor.

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    Trials in the magistrates and youth courts

  9. The time available for the investigator and the prosecutor to carry out their respective functions under the Act will be limited in these courts, particularly where the accused is in custody.
  10. To make best use of available time, it is therefore essential that:
    • anticipated not guilty pleas are identified at an early stage so that the preparation of full files can start as soon as possible. The prosecutor should request a full file if appropriate on the form MG3
    • full files should be submitted on time, complete with the schedules and copies of any items that must be supplied to the prosecutor.
  11. There is no requirement to provide schedules unless and until a not guilty plea is formally entered by the accused. However, as soon as the police receive notification of a not guilty plea in such cases, all appropriate disclosure schedules should be prepared and submitted to the prosecutor. This applies to all offences including minor traffic offences. Therefore, where no plea is entered in a motoring matter and it is listed to be proved in absence, there is no requirement for disclosure schedules.

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Chapter 7 The non-sensitive material schedule

  1. Non-sensitive unused material should be described on the MG6C. This form will be disclosed to the defence.
  2. In the description column of every schedule, each item should be individually described and consecutively numbered. Where continuation sheets are used or additional schedules sent in later submissions, item numbering must be consecutive to all items on earlier schedules.
  3. Every description in non-sensitive schedules should be detailed, clear and accurate. Each should include a summary of the item's contents to allow the prosecutor to make an informed decision on whether it could satisfy the disclosure test. For example, it is not sufficient merely to refer to a document by way of a form number or function which may be meaningless outside the Police Service.
  4. In cases where there are many items of a similar or repetitive nature (messages for example) it is permissible to describe them by quantity and generic title. However, inappropriate use of generic listing is likely to lead to requests from the prosecutor and the defence to see the items. This may result in wasted resources and unnecessary delay. The preparation of properly detailed schedules at this stage will save time and resources throughout the disclosure process, and will promote confidence in its integrity.
  5. When items are described by generic titles or quantities, the disclosure officer must ensure that items which might meet the disclosure test are also described individually.
  6. The disclosure officer should keep a copy of the schedules that are sent to the prosecutor, in case there are any queries that need to be resolved. A copy will also assist the disclosure officer to keep track of the items listed, should the schedules need to be updated.
  7. Sometimes documents that fall to be disclosed under the Act because they contain material that satisfies the disclosure test may contain a mixture of sensitive and non-sensitive material. For example, a prosecution witness's address or personal telephone number may appear on an item that is otherwise entirely non-sensitive.
  8. In these cases there may be no objection to the sensitive part being permanently blocked out on the copy document which is to be sent to the prosecutor. The original should not be marked in any way. The document should be described on the MG6C. (The unedited version should not be described on the MG6D, but made available to the prosecutor for inspection if required.) The prosecutor should be informed of the nature of the edited material, if not obvious, on the MG6. The disclosure officer should edit out issues of sensitivity whenever material is routinely revealed.
  9. The responsibility to edit rests with the police but the prosecutor should be consulted where editing or separating is other than straightforward.

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Chapter 8 The sensitive material schedule

Assessment of sensitivity and schedule preparation

  1. This schedule should be used to reveal to the prosecutor the existence of unused material which the disclosure officer believes should be withheld from the defence because it is not in the public interest to disclose it. However, such material must be revealed to the prosecutor.
  2. The disclosure officer must describe on the MG6D any material the disclosure of which he or she believes would give rise to a real risk of serious prejudice to an important public interest and the reason for that belief. This form will not be disclosed to the defence.
  3. In those cases where there is no sensitive unused material, the disclosure officer should endorse and sign an MG6D to this effect and should submit this together with the MG6C and MG6E.
  4. To assist the officer in considering the examples given in the Code paragraph 6.12, reference should be made to the following associated public interests:
    • the ability of the security and intelligence agencies to protect the safety of the UK
    • the willingness of foreign sources to continue to cooperate with UK security and intelligence agencies, and law enforcement agencies
    • the willingness of citizens, agencies, commercial institutions, communications service providers etc to give information to the authorities in circumstances where there may be some legitimate expectation of confidentiality (e.g. Crimestoppers material)
    • the public confidence that proper measures will be taken to protect witnesses from intimidation, harassment and being suborned
    • the safety of those who comply with their statutory obligation to report suspicious financial activity (whilst they are under a statutory obligation and therefore do not give suspicious activity reports in confidence, their safety is a consideration to be taken into account in disclosure decisions)
    • national (not individual or company) economic interests
    • the ability of the law enforcement agencies to fight crime by the use of covert human intelligence sources, undercover operations, covert surveillance etc
    • the protection of secret methods of detecting and fighting crime
    • the freedom of investigators and prosecutors to exchange views frankly about casework.
  5. These lists are not check-lists. Other items not listed there may be sensitive and not in the public interest to disclose, but equally, items listed there may not cause any harm to the public interest if disclosed. The examples are not 'classes' of material. Each item must be considered independently before it is included in the sensitive schedule and before any claim for public interest immunity from disclosure is made.
  6. Some items by their very nature will reveal why disclosure should be withheld. Others require more explanation. Careful attention to this element of the schedule will avoid further enquiries and consequent delay. Both the 'Description of item' and the 'Reasons for sensitivity' sections must contain sufficient information to enable the prosecutor to make an informed decision as to whether or not the material itself should be viewed. Schedules containing insufficient information will be returned by the prosecutor. If there is any doubt about the sensitivity of the material, the prosecutor should be consulted.
  7. In order to make a proper assessment of the material which is said to be sensitive, the prosecutor will need to be fully informed of its contents or see the material or part of it. In cases where it is not possible to describe the nature of the material in sufficient detail to enable the prosecutor to determine whether or not it should be viewed, it will be for the disclosure officer to make arrangements with the prosecutor to view the material with an appropriate level of physical and personal security.
  8. The police and the CPS must always take care to protect intelligence information and information given to the police in confidence. That will be so whether or not it is thought likely that the court will order its disclosure. If the investigator is unsure whether information was given in confidence, the position should be clarified with the person who provided the information.
  9. When the schedule and any material are sent to the prosecutor, a protective marking should be applied to it consistent with the level of sensitivity of its contents. This will determine the manner in which the material is conveyed to, and stored by the CPS. Reference should be made to the current policy as to the detailed categorisation of different types of sensitive material as Restricted, Confidential, Secret or Top Secret.
  10. In deciding sensitivity it is important to bear in mind that the sensitivity of the schedule and the sensitivity of the information may differ. The security marking will depend on what is being submitted to the prosecutor; if the material itself is to accompany the schedule the content of the material will determine the marking. If the schedule alone is submitted the content of the schedule will determine its security marking.
  11. Sensitive unused material and schedules relating to informants, observation posts or undercover operations will normally be treated as Confidential.

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    Dealing with sensitive material that satisfies the disclosure test

  12. The prosecutor has a duty under the Act to consider whether sensitive material satisfies the disclosure test.
  13. To assist the prosecutor to decide how to deal with disclosable sensitive material, the investigator and disclosure officer(s) should provide detailed information dealing with the following issues:
    • the reasons why the material is said to be sensitive
    • the degree of sensitivity said to attach to the material, in other words, why it is considered that disclosure will create a real risk of serious prejudice to an important public interest
    • the consequences of revealing to the defence
      1. the material itself
      2. the category of the material
      3. the fact that an application may be made
    • the apparent significance of the material to the issues in the trial
    • the involvement of any third parties in bringing the material to the attention of the police
    • where the material is likely to be the subject of an order for disclosure, what the police view is regarding continuance of the prosecution
    • whether it is possible to disclose the material without compromising its sensitivity.
  14. To assist in determining the degree of sensitivity as above, consideration should be given to the fact that the public interest may be prejudiced either directly or indirectly through incremental or cumulative harm.
  15. Examples of direct harm are:
    • exposure of secret information to enemies of the state
    • death of or injury to an intelligence source through reprisals
    • revelation of a surveillance post and consequent damage to property or harm to the occupier
    • exposure of a secret investigative technique.
  16. Examples of incremental or cumulative harm are:
    • exposure of an intelligence source that does not lead to a risk of death or injury, or any reprisal, to that intelligence source, but which discourages others from giving information in the future because they lose faith in the system
    • revelation of a surveillance post leading to a reluctance amongst others to allow their premises to be used
    • exposure of an investigative technique that makes the criminal community more aware and therefore better able to avoid detection
    • exposure of material given in confidence, or for intelligence purposes, that may make the source of the material, or others, reluctant to cooperate in the future (e.g. CrimeStoppers material)
    • an active denial that a source was used in the instant case, leading to the inability to deny it in future cases where one was used, thereby impliedly exposing the use of a source. The Crown should neither confirm nor deny the use of a source.
  17. The prosecutor must be satisfied that the risk is real, not fanciful. The prosecutor must be in a position to explain to the court the ground upon which it is asserted that there is a real risk of serious prejudice to an important public interest.
  18. The examples of material that might attract public interest immunity (PII) in paragraph 6.12 of the Code do not define classes of material; they are examples only and whether the disclosure of an individual document would be likely to give rise to a real risk of serious prejudice to an important public interest must be assessed in each case. Whilst some of the examples are always likely to carry that real risk, not all will and the prosecutor must assess the risk to the public interest of the disclosure of that document in the individual case, whilst also having regard to the risk of incremental or cumulative damage to the public interest.
  19. The prosecutor must be satisfied that the prejudice that is anticipated from disclosure of a document is a serious, not a trivial, risk. Again, as with 'real risk', this is an assessment that must be made on an individual basis, having regard to the risk of incremental or cumulative damage to the public interest.
  20. Where material is disclosed having been edited to protect the public interest the original itself should not be marked. The defence should be informed of the action taken, although this will normally be clear from the appearance of the document itself. Application will have to be made to the court to withhold the remainder if it requires disclosure under the Act.
  21. It may be possible to separate non-sensitive from sensitive parts of documents and describe them on different schedules. For example if the fact of surveillance is obvious from the evidence, an authorisation under the Regulation of Investigatory Powers Act might neither be nor contain anything sensitive. It may therefore be scheduled on the MG6C. On the other hand, the application part of the document will invariably contain sensitive material and should be scheduled on the MG6D. This is a particularly useful way of dealing with RIPA authorities.
  22. Where the prosecutor decides:
    • that sensitive material requires disclosure to the accused because it satisfies the disclosure test, and
    • in consultation with the police, that it is not possible to disclose in a way that does not compromise the public interest in question, and
    • that disclosure should be withheld on public interest grounds,

    the ruling of the court must be sought or the case abandoned.

  23. Neutral material or material damaging to the accused need not be disclosed and, unless the issue of disclosability is truly borderline, should not be brought to the attention of the court (per the House of Lords in R v H and C). This places a heavy onus on the police and prosecutors to be aware of all factors which might affect the legality of or admissibility of evidence from sensitive sources or procedures.

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    Consultation

  24. Before an application is made to the court, the prosecutor will need to consult the police. This should take place at a senior level, and a senior officer (who may be independent of the investigation) should be involved. Others may also be consulted, including the officer in charge of the investigation, and in Crown court cases, the prosecution advocate.
  25. Consultation will include a careful examination of the circumstances of the case and the nature of the sensitive material. Rather than apply to the court, the prosecutor may be able to disclose the material in a way that does not compromise the public interest in issue. Material may, for example,
    • be edited,
    • summarised, or
    • formally admitted.
  26. For consultation to be effective, the officer in charge of the investigation should ensure that the prosecutor is provided with the information necessary to make a proper decision on how any application is to be made. This should be in documentary form, unless the information is so sensitive that it would be inappropriate to fully describe it in writing. See chapter 9 for further details.
  27. On the basis of the information provided at the consultation, the prosecutor will decide whether an application should be made, and the form of application required.

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    Flowchart of sensitive material and PII applications

    Flowchart of sensitive material and PII applications

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Chapter 9 Highly sensitive and CHIS material

Handling highly sensitive material

  1. All relevant sensitive unused material should be included on the MG6D. Highly sensitive material should be also listed and described on a highly sensitive schedule, which will be handled in accordance with the handling guidance in this chapter.
  2. Highly sensitive material is that which, should it be compromised, would:
    • lead directly to the loss of life
    • directly threaten national security.
  3. The small number of such cases where this situation may arise are likely to involve investigations into organised crime or into terrorist offences. This material is likely to be in the Secret or Top Secret categories.
  4. There may be material that, whilst its compromise would not be likely to lead directly to the loss of life or directly threaten national security, relates to a covert human intelligence source (CHIS) who, or whose family, may be injured, threatened or harassed if the material is compromised. Some Police Forces may wish to apply the same procedures to CHIS material as for highly sensitive material.
  5. Where, exceptionally the police consider material to be too sensitive even for a reference to its existence to be included on the principal MG6D, or consider it too sensitive to reveal its existence to the disclosure officer, the person holding the material should prepare a highly sensitive schedule and make contact with the prosecutor to discuss the material. The material itself must be viewed by a unit head, Special Casework Lawyer or a prosecutor specifically delegated to undertake such work.
  6. Chief Constables (or the authorising officer for RIPA activity) and Chief Crown Prosecutors should agree local handling procedures for highly sensitive material and CHIS material.
  7. The arrangements must ensure as a minimum that:
    • where sensitive material is revealed to the prosecutor other than by detailing that material on the principal MG6D, that material must itself be scheduled on a separate 'highly sensitive' MG6D
    • this separate highly sensitive MG6D must contain the same level of detail as these instructions requires in relation to any other MG6D
    • the officer submitting this separate highly sensitive schedule, should also submit an MG6E
    • only in the most exceptional circumstances will the lead disclosure officer not be told of the existence of the additional schedules and should record their existence (but not their content of which he or she will be unaware) on the principal MG6D.
  8. The material and all schedules, statements of sensitivity and any other documents bearing highly sensitive material will remain at all times under the control of the police.
  9. As noted above, highly sensitive material may be brought to the prosecutor's attention on a highly sensitive schedule by individual investigators without the details being known to the disclosure officer. This is the responsibility of the individual investigator, but prosecutors should be alert to the possible existence of such material in appropriate cases.
  10. Where there is material that falls within this chapter, consultation between the police and the CPS should take place as soon as possible. Initial contact with the CPS should be at unit head or Special Casework Lawyer level unless the responsibility has been specifically delegated to another lawyer. The consideration of highly sensitive material obtained from the intelligence or security services should not normally be delegated. See further more detailed guidance at chapter 33.
  11. Inspection should be at an appropriate location having regard to the sensitivity of the material.
  12. Prosecutors should take care to ensure that file or disclosure record sheet endorsements relating to the consultation do not inadvertently identify the nature of the material.
  13. It should be noted that there are special provisions for handling material gathered under Part 1 Chapter 1 of the Regulation of Investigatory Powers Act 2000 (Interception of Communications) and no reference to the authorities for, and the product of, communications intercepts should be made in any unused material schedule.

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    Handling and security arrangements

  14. During consultation on sensitive material marked as Confidential or above, any copies of the items discussed or notes taken which could identify the material should be kept separate from the file and in secure conditions. Access to the material or notes should be restricted to those prosecuting the case or advising upon it. If the material is taken to court, it must not be left in an unattended court file. Where the advice of the prosecution advocate is sought, appropriate storage and handling arrangements must be made to ensure the security of the material.
  15. At the conclusion of a case, all sensitive material retained by the CPS should be returned to the police and a receipt should be maintained. The police officer authorised to collect the items should be handed all copies of the material, together with any notes that may refer to the nature of the material. Before the file is sent to be archived, the unit head or Special Casework Lawyer, as appropriate, must be satisfied that it does not contain anything that may identify the nature of the material.

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Chapter 10 The disclosure officer's report

The contents of the MG6E

  1. The disclosure officer should use the MG6E to bring to the prosecutor's attention any material that could reasonably be considered capable of undermining the prosecution case against the accused or of assisting the case for the accused. This also applies to sensitive material. Examples include:
    • records of previous convictions and cautions for prosecution witnesses
    • any other information which casts doubt on the reliability of a prosecution witness or on the accuracy of any prosecution evidence
    • any motives for the making of false allegations by a prosecution witness
    • any material which may have a bearing on the admissibility of any prosecution evidence
    • the fact that a witness has sought, been offered or received a reward
    • any material that might go to the credibility of a prosecution witness
    • any information which may cast doubt on the reliability of a confession. Any item which relates to the accused's mental or physical health, his intellectual capacity, or to any ill-treatment which the accused may have suffered when in the investigators custody is likely to have the potential for casting doubt on the reliability of a purported confession
    • information that a person other than the accused was or might have been responsible or which points to another person whether charged or not (including a co-accused) having involvement in the commission of the offence.
  2. The disclosure officer should also explain on form MG6E (by referring to the relevant item's number on the schedule) why he or she has come to that view. The MG6C itself should not be marked or highlighted in any way, as it will be provided to the defence.
  3. This will include anything that may weaken an essential part of the prosecution case. Any material that supports or is consistent with a defence put forward in interview or before charge or which is apparent from the prosecution papers should be supplied to the prosecutor. It also includes anything that points away from the accused, such as information about a possible alibi. If the disclosure officer believes that material satisfies the disclosure test it should be brought to the prosecutor's attention even though it suggests a defence inconsistent with or alternative to any already advanced by the accused. Items of material viewed in isolation may not satisfy the test, however several items together can have that effect.
  4. Such material should be brought to the prosecutor's attention regardless of any views about the accuracy or truth of the information, although where appropriate the disclosure officer may express a reasoned opinion on whether in fact the prosecutor should disclose it.
  5. A wide interpretation should be given when identifying material that might satisfy the disclosure test. A thorough and careful check when the duty to reveal arises may save time later on. The disclosure officer should consult with the prosecutor where necessary to help identify material that may require disclosure, and must specifically draw material to the attention of the prosecutor where the disclosure officer has any doubt as to whether it might satisfy the disclosure test.

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    Revelation of the material to the prosecutor

  6. Revealing material to the prosecutor does not mean automatic disclosure to the defence. The prosecutor will only disclose material to the defence if it satisfies the disclosure test set out in the Act. If the material is sensitive, and satisfies the disclosure test, the prosecutor will either disclose the material after consultation with police, apply to the court for a ruling as to whether the public interest requires disclosure or withdraw the prosecution.
  7. The disclosure officer should
    • promptly send the completed schedules to the prosecutor
    • identify on form MG6E any material which might satisfy the disclosure test
    • copy material to the prosecutor for example material which in the opinion of the disclosure officer satisfies the disclosure test and material which is required routinely to be revealed
    • allow the prosecutor to inspect material.
  8. As an aid to prosecutors in their case review function, copies of the crime report and the log of messages should be routinely copied to the prosecutor in every case in which a full file is provided. (These documents are known in different police forces by different names, for example the incident record report or CAD for the log of messages).
  9. Copies of the crime report and log of messages should be edited (if necessary) by the police before they are sent to the prosecutor. If it is impossible to edit any sensitive parts of the material, then it should be listed on the MG6D and be sent to the prosecutor with that schedule.
  10. This requirement routinely to reveal the crime report and the log of messages does not prejudice any other locally agreed arrangements between the police and the CPS that allow for the similar treatment of other additional categories or types of document.
  11. In large or complicated cases or in any case where particular difficulties are anticipated, an early discussion between the disclosure officer or the officer in charge of the investigation, and the prosecutor and prosecution advocate, if instructed, may be extremely beneficial. For example, they may agree to look at the material together before the schedules are prepared. In such circumstances the disclosure officer or the officer in charge of the investigation should not hesitate to contact the prosecutor for early advice.

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    Certifications by the disclosure officer

  12. The officer in charge of the investigation must ensure that all relevant material that has been retained is either revealed to the disclosure officer, or in exceptional circumstances revealed on a highly sensitive schedule directly to the prosecutor.
  13. If the disclosure officer is uncertain whether all the relevant retained material has been revealed, enquiries should be made of the officer in charge of the investigation to resolve the matter.
  14. The disclosure officer must provide different certifications in the course of the disclosure process, to cover:
    • revelation of all relevant retained material (see paragraph 10.16 below)
    • whether material satisfies the disclosure test (see paragraph 10.17 below)
    • whether material satisfies the disclosure test following a defence statement as part of continuing duty (see paragraph 15.22 below).
  15. The case against each accused must be considered and certified separately.
  16. The disclosure officer is required to certify to the prosecutor that: 'To the best of my knowledge and belief, all relevant material which has been retained and made available to me has been inspected, viewed or listened to and revealed to the prosecutor in accordance with the Criminal Procedure and Investigations Act 1996 as amended, the Code of Practice and the Attorney General's Guidelines.' The purpose of certification is to provide an assurance to the prosecutor on behalf of the police investigating team that all relevant material has been identified, considered and revealed to the prosecutor.
  17. Where the disclosure officer (or deputy disclosure officer) believes there is no material that satisfies the disclosure test, the officer should endorse the MG6E in the following terms: 'I have reviewed all the relevant material which has been retained and made available to me and there is nothing to the best of my knowledge and belief that might reasonably be considered capable of undermining the prosecution case against the accused or assisting the case for the accused.'

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    Subsequent actions

  18. Disclosure officers must deal expeditiously with requests by the prosecutor for further information on material which may lead to it being disclosed.
  19. A prosecutor may ask to inspect material, or request a copy of material where one has not been sent. The disclosure officer is responsible for arranging this. Material should be copied to the prosecutor on request unless it is too sensitive or too bulky, or can only be inspected. This applies to disclosure throughout the life of the case.
  20. After considering the schedule(s), the prosecutor will endorse them with the decisions as to whether each item described will be disclosed to the defence. A copy of the endorsed schedule(s) should be sent to the disclosure officer.

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    Amending the schedules

  21. On occasions it may be necessary to amend the schedules. When the schedules are first submitted with a full file, the disclosure officer may not know exactly what material the prosecutor intends to use as part of the prosecution case. The prosecutor may create unused material by extracting statements or documents from the evidence bundle, in which case the prosecutor may disclose material that satisfies the disclosure test directly to the defence without waiting for the disclosure officer to amend the schedule. However where this is done, the prosecutor should advise the officer accordingly. Police officers should ensure that obviously non-evidential material is not included in the evidence bundle.
  22. The prosecutor is required to advise the disclosure officer of
    • items described on the MG6C that should properly be on the MG6D and vice versa
    • any apparent omissions or amendments required
    • insufficient or unclear descriptions of items
    • or a failure to provide schedules at all.

    The disclosure officer must forthwith take all necessary remedial action and provide properly completed schedules to the prosecutor. Failure to do so may result in the matter being raised with a senior officer.

  23. The Code places the responsibility for creating the schedules and keeping them accurate and up to date on the disclosure officer. Consequently, the prosecutor should not amend schedules. In these circumstances the prosecutor should inform the disclosure officer of the changes required, and return the schedules for amendment where appropriate.
  24. The disclosure officer should effect the amendments promptly and return the amended or fresh schedules to the prosecutor as soon as possible with a further MG6E as appropriate.

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    Continuing duty to disclose

  25. The duties of revelation to the prosecutor and disclosure to the accused are continuing obligations, see chapter 14 below. Any new material coming to light after initial disclosure has been completed should be treated in the same way as earlier material. The new material should be described on a further MG6C, MG6D or a continuation sheet. To avoid confusion, numbering of items submitted at a later stage must be consecutive to those on the previously submitted schedules.
  26. A further MG6E should also be submitted irrespective of whether or not any of the new material is considered by the disclosure officer to satisfy the disclosure test.

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Chapter 11 Receipt and review

  1. Prosecutors must do all that they can to facilitate proper disclosure, as part of their general and personal professional responsibility to act fairly and impartially, in the interests of justice. Prosecutors must also be alert to the need to provide advice to disclosure officers on disclosure issues and to advise on disclosure procedure generally.
  2. In order to carry out the duties set out in the Act, the prosecutor will need to consider the schedules of unused material and copies of any items supplied by the police to see if the disclosure test is satisfied.
  3. The prosecutor must apply the disclosure test contained in the Act. The test is an objective one. To comply, the prosecutor must disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, save to the extent that the court, on application by the prosecutor, orders it is not in the public interest to disclose it.
  4. Prosecution material is defined in the Act in section 3(2) and is material which is in the prosecutor's possession, and came into his possession in connection with the case for the prosecution against the accused, or which the prosecutor has inspected under the provisions of the Code in connection with the case against the accused.
  5. The lead disclosure officer is the first point of contact for all enquiries regarding the contents of the schedules and access to the material which has not been copied. It is important to liaise closely with the disclosure officer, and to consult regularly during the disclosure process.
  6. When a full file is submitted the prosecutor should expect to receive from the police:
    • an MG6
    • an MG6B where required (see chapter 18)
    • a schedule of non-sensitive material (MG6C)
    • a schedule of sensitive material (MG6D) or nil return
    • copies of disclosable sensitive material (where appropriate)
    • copies of the crime report and log of messages (edited where appropriate)
    • all material that the disclosure officer believes satisfies the disclosure test and a brief explanation for that belief (on the MG6E)
    • certification by the disclosure officer (on the MG6E).
  7. The schedules and any accompanying material should be brought to the attention of the prosecutor as soon as possible. The prosecutor should carry out a review of the schedules and the material received in accordance with the procedures set out below.
  8. The prosecutor should examine the schedules carefully to check for possible omissions from them. If there are any omissions, the prosecutor should ask the disclosure officer to provide a continuation schedule, but should not delay disclosure. Where there are apparent errors on the s