Disclosure Manual: Chapter 4 - Relevance, Recording and Retention

The CPIA Code of Practice requires the retention of material of any kind (including information and objects) obtained in a criminal investigation as defined by CPIA, which may be relevant to the investigation.

Material which may be relevant to the investigation is defined in the Code of Practice as anything that appears to an investigator, or the OIC 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. If there is any doubt, officers should include the item or ask the prosecutor for guidance.

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). Paragraph 5.1-5.6 of the Code of Practice outlines categories of material to which the duty to retain is likely to apply. The duty to retain relevant material does not include items which are purely ancillary and possess no independent significance (for example, duplicate copies of records or reports).

A criminal investigation is defined in the CPIA as an investigation conducted by police officers or other persons 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. This will include investigations into crimes that have been committed, to those investigating whether a crime has been committed or proactive investigations.

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. Material which is prohibited from being disclosed under section 56 of the Investigatory Powers Act 2016 (IPA) must not be disclosed.

In discharging their obligations under the CPIA, the Code of Practice, the Attorney General's Guidelines on Disclosure 2022, the common law and this manual, investigators should always err on the side of recording and retaining material where they have any doubt as to whether it may be relevant.

Material includes information given orally. Where relevant material is not already recorded, it is the responsibility of the officer in charge of the investigation to record it in durable or retrievable form. 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 them and is to be returned to its owner; or the retention of a copy rather than the original is reasonable in all the circumstances.

The issue of relevance is especially important where an investigator is considering whether:

• to throw something away;
• to return an item to the owner;
• not to record information; or
• where not keeping material or not recording information would result in the permanent loss or alteration of the material (as with reusable control room tapes, shop videos etc).

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 of Practice will apply. The officer should, wherever practical, take steps to obtain it, or ensure that it is retained by the person in possession of it.

As a general rule, pure opinion or speculation, for example theories of police officers 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 recorded, retained and notified to the prosecutor in accordance with these instructions.

Reports, advices and other communications between the CPS and investigators in themselves will usually be of an administrative nature, generally having no bearing on the issues in the case, and thus not relevant. However, there may be instances where this material may become relevant, for example, if it could support an application by the defendant such as for abuse of process relating to delay or the conduct of the investigation. If the content of any such document is relevant and not recorded elsewhere, then the material should be described on the appropriate schedule and considered in the normal way.

Disclosure officers, or their deputies, must inspect, view, listen to or search all material that is or may be relevant. It is recognised that in some cases a detailed examination of every item would be disproportionate and search techniques may be used. In these instances, the AG’s Guidelines set out principles for search techniques for handling digital material in Annex A (see Chapter 30 for further guidance). The reasons for the approach taken in relation to examining material must be recorded.

The use of appropriate search and sampling techniques has been validated by the Court of Appeal in R v R and Others [2015] EWCA Crim 1941. 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 and this should be communicated to the defence in the Disclosure Management Document.

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 all times 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; and
• what the potential consequences will be if the material is not preserved.

Negative information can sometimes be as significant to an investigation as positive information; that which casts doubt on the suspect's guilt or implicates another person must also be included. 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;
• 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; and
• any other failure to match a crime scene sample with one taken from the accused.

For information on disclosing notes of victim communication and liaison meetings and disclosure following speaking to witnesses at court see Chapter 20.

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.

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 as a true record to a durable and more easily-stored form before it is destroyed.

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.

Whether in original or copy form, details of preserved messages should be listed on the schedule(s) in the normal way.

Electronic Material

The exponential increase in the use of technology in society means that many routine investigations are increasingly likely to have to engage with digital material of some form. It is not only in large and complex investigations where there may be large quantities of such material.

Investigators and disclosure officers will need to decide how best to pursue a reasonable line of enquiry in relation to the relevant digital material and ensure that the extent and manner of the examination are appropriate to the issues in the case. In reaching any such decisions, investigators and disclosure officers must bear in mind the overriding obligation to ensure a fair trial of any suspect who is charged and the requirement to provide disclosure in the trial process.

Where investigations involve a large quantity of digital material it may be impossible for investigators to examine every item of such material individually. Annex A of the AG’s Guidelines sets out a common approach when seeking to obtain and handle digital material in order to identify, reveal and (if necessary) disclose without imposing unrealistic or disproportionate demands on the investigator and prosecutor. In cases involving large amounts of digital material, investigators should consider completing an Investigation Management Document (IMD) to outline the approach taken to lines of enquiry. This information will allow the DMD to be completed so that the approach taken to searching large quantities of digital material is understood by the court and defence.

Prosecutors and investigators must ensure that any line of enquiry pursued in relation to the digital devices of victims and witnesses are reasonable in the context of the likely issues in the case.

Further guidance may be found in Chapter 30.