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Protocol for Liaison and Information Exchange when criminal proceedings coincide with Child Safeguarding Practice Reviews in England

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Parties

This Protocol is between the Local Safeguarding Partnerships (LSP), the Crown Prosecution Service (“CPS”) and the National Police Chiefs’ Council (“NPCC”).

This protocol updates the 2014 Publication “Liaison and Information Exchange when Criminal Proceedings Coincide with Serious Case Reviews or Welsh Child Practice Reviews” which was guidance issued jointly by the (then) ACPO and the CPS, and supported by the Association of Independent LSCB Chairs.

Aims

1. Promote the welfare and safeguarding of children.

2. Provide a framework between the parties for the understanding of the purpose of Reviews as well as the sharing and exchange of relevant information between Safeguarding Partnerships, the police and CPS.

3. Ensure all relevant parties are informed about the process of a Child Safeguarding Practice Review (CSPR), its impact upon a criminal investigation/ prosecution, the statutory obligation to report within 6 months and the disclosure responsibilities of the police and CPS.

Context

Serious Case Reviews have been replaced with separate regimes in England and Wales for the review of cases involving the death of, or serious harm to, a child following evidence showing that the previous regime was too slow and bureaucratic to facilitate effective changes in practice.

In 2019, all LSCBs implemented their plans to move to multi agency safeguarding partnerships set out in Working Together to Safeguard Children 2018 (Department for Education, 2018).

When a child dies or is seriously harmed as a result of suspected abuse or neglect, a review may be conducted to identify ways that professionals and organisations can improve processes and the way they work together to safeguard children and prevent similar incidents from occurring.

The reviews are known as Child Safeguarding Practice Reviews in England and Child Practice Reviews in Wales. For the purposes of this protocol the reviews will be referred to as CSPRs.

Section 16N Children Act 2004 sets out the ability to request any body or person to provide information to the CSPR. The body/person must comply with that request.

Process

1. Within 15 days of notification of a ‘serious child safeguarding case’ (ie those cases in which abuse or neglect of a child is known or suspected and the child has died or been seriously harmed) the local Safeguarding Panel must hold a Rapid Review involving the partner agencies: local authority, Police, Health, Education, and Social Care. The purpose of the Rapid Review is to:

  • gather the facts about the case, as far as they can be readily established at the time
  • discuss whether there is any immediate action needed to ensure children’s safety and share any learning appropriately
  • consider the potential for identifying improvements to safeguard and promote the welfare of children
  • decide what steps they should take next, including whether to undertake a CSPR

2. The Rapid Review has three possible outcomes:

  • Decide the case does not meet the criteria for a further review and no further action is taken
  • Proceed to a local CSPR
  • Decide that the case also raises national issues and ask the Child Safeguarding Practice Review Panel (the national Panel) to consider undertaking a National Review.

3. On receipt of all Rapid Reviews the National Panel must decide whether it is appropriate to commission a national review of a case or cases.

4. Any Review must take place within six months.

The purpose of reviews of serious child safeguarding cases, at both local and national level, is to identify improvements to be made to safeguard and promote the welfare of children. Understanding whether there are systemic issues, and whether and how policy and practice need to change, is critical to the system being dynamic and self-improving. Consequently, reviews may be conducted without any direct input from the alleged perpetrator of the abuse.

Disclosure and sharing of material generated by the CSPR

An investigation into possible criminal offences and any subsequent prosecution must ensure that the suspect/defendant has a fair trial.

In England and Wales this is secured by various measures, including:

Investigators, disclosure officers and/or prosecutors have a duty to take reasonable steps to identify, secure and consider relevant material which is not in their possession. Material may be relevant to an investigation if it appears to an investigator, or to the officer in charge of an investigation, or to the disclosure officer, that it has some bearing on any offence under investigation or any person being investigated, or on the surrounding circumstances of the case, unless it is incapable of having any impact on the case.

The investigator has a duty to record and retain any relevant material identified by the investigation. The disclosure officer reveals its existence to the prosecutor on a schedule of non-sensitive relevant unused material (unused material being material not relied on as evidence). That schedule is endorsed by the prosecutor to indicate whether any item could reasonably be considered capable of undermining the prosecution case or assisting the defence case (and as such meets the “disclosure test”). The schedule, and any material meeting the disclosure test, is then provided to the defence in the course of the prosecution.

Material held or generated by the CSPR could be relevant material. Failure to disclose relevant material in criminal proceedings could lead to unsafe court outcomes. A description of material provided from the CSPR to the Police will appear on the schedule of non-sensitive relevant unused material provided to the defence and a copy will be provided to the defence if it meets the disclosure test as described above.

The only exception to this will be where the LSP considers the material to be sensitive. Sensitive material is material, the disclosure of which would give rise to a real risk of serious prejudice to an important public interest, for example material relating to the identity or activities of informants or other persons supplying information who may be in danger if their identities are revealed.  If the LSP considers that material it holds is sensitive it will make clear this claim of sensitivity and the basis for it, applying the test of “real risk of serious prejudice to an important public interest”.

Sensitive material will be revealed by the disclosure officer to the prosecutor on a schedule of sensitive relevant unused material. This schedule will not under any circumstances be provided to the defence.

The disclosure officer and prosecutor will also consider whether the material meets the disclosure test. If it does, they will indicate the terms in which they propose the material should be disclosed to the defence, for example, editing or redacting parts of the material.

In the majority of cases it is anticipated that dialogue will resolve any difference of opinion between the LSP, disclosure officer and prosecutor about whether material should appear on the non-sensitive or sensitive schedule and/or how whether sensitive material meets the disclosure test and how it should be disclosed.

Where there is agreement that sensitive material meets the disclosure test, but that it cannot be disclosed to the defence in a way that does not compromise the public interest in question and therefore that disclosure should be withheld on public interest grounds, the prosecution will either seek a ruling from the Judge to this effect (public interest immunity) or abandon the case.

There may be rare circumstances in which the LSP maintains, contrary to the view of the disclosure officer and prosecutor, that material is sensitive and cannot be disclosed to the defence in a way that does not compromise the public interest in question. Where the material has not been provided to the disclosure officer and the prosecutor, the matter may be resolved by the prosecutor seeking a summons for third party disclosure, resulting in the matter being brought before a judge. In such circumstances, the LSP will be afforded the opportunity to make representations on whether the material is sensitive and whether it should be provided to the prosecution. Where the material is already in the possession of the prosecutor, the prosecutor must make a decision based on their assessment of whether the disclosure test is met. However, there may be exceptional circumstances in which the CPS make an application for PII so that the issue can be resolved by judicial determination. Again, the LSP will have an opportunity to make representations on the disclosure of the material.

Risk of prejudice to the criminal investigation

Whilst criminal proceedings should be dealt with expeditiously, there may be complex enquiries e.g. obtaining expert evidence, which mean it may not be resolved within the time allowed (6 months) for the CSPR to be completed. As the CSPR is concerned with gathering possible learning for safeguarding of children, it may not be appropriate to wait for the conclusion of exceptionally lengthy criminal proceedings before commencing the CSPR process.

It is important that the terms of reference of the CSPR are properly communicated in order that the police and the CPS can make an informed decision about any likely impact.

Given the difference in the focus of the criminal investigation and the CSPR it will usually be possible to conduct the CSPR while the criminal investigation is ongoing. However, if, exceptionally, it is the view of (i) the Senior Investigating Officer, where the case is at the investigative stage and (ii) the Senior Investigating Officer and a prosecutor of at least Deputy Chief Crown Prosecutor rank, where the case has been charged; that there would be irreparable prejudice to the criminal investigation if the CSPR were to proceed while the criminal proceedings were still ongoing, they will communicate the reasons for their opinion to the LSP. The LSP will then decide what steps to take to address the concerns e.g. delaying the publication of the CPSR, or postponing the entire review or aspects of the review until an agreed date. If a decision is taken to postpone the CSPR beyond the 6 month time limit for the review the LSP should inform the National Panel of the length of and reason for the postponement.

Material from police investigation supplied to the CPSR

A Police investigation will result in the gathering of a great deal of material. Some of this material may be of value to those seeking to learn lessons about how the child was maltreated or how agencies could have better worked together to prevent maltreatment.

The police investigation may identify individuals who, whilst not otherwise known to the agencies (for example ‘anonymous’ referrers of child abuse), may be able to contribute to the learning contained within the CSPR. Witness statements from neighbours and family may make reference to how the agencies provided services to the child in the weeks leading up to the death or a statement from the Pathologist may be useful to establish how long before a child’s death certain injuries occurred. There are also occasions following inquests where the coroner suggests that an CPSR or criminal proceedings  should be conducted and given information uncovered as to cause of death.

The Parties recognise that the overriding interest in the safeguarding and welfare of children means that lessons need to be learnt immediately in order to better protect children who may currently be at risk.  There is a general principle that when third parties request information which is gathered by Police it will not be usual to disclose material until the criminal proceedings have been completed. This is to ensure that any continuing police enquiries and criminal proceedings are not prejudiced. The comments of Lord Reid in Conway -v- Rimmer (1968) [I All ER 874] at page 889 are relevant, "…it would generally be wrong to require disclosure in a civil case of anything which might be material in a pending prosecution, but after a verdict has been given, or it has been decided to take no proceedings, there is not the same need for secrecy."

However, there may be occasions when it would not be appropriate to delay information sharing with a CSPR until the criminal proceedings are complete.

If criminal proceedings have commenced (i.e. when someone has been charged with an offence), the CPS will hold a conference with the Police SIO and representative of the LSP to discuss what can safely be disclosed to serve the purposes of the CSPR, without hindering the criminal investigation. Where the CPS is advising on proceedings, or proceedings have concluded, requests can often be directed to the police but a view from the CPS should normally be sought.

If the LSP believes the Police may have specific material which could assist its work, the Police Review Panel member should approach the SIO for that information.