Disclosure Manual: Chapter 11 – Revelation to the prosecutor

In order to support prosecutors’ assessment of the impact of unused material, it is essential that prosecutors are provided with schedules and material potentially capable of meeting the test for disclosure at an early stage, as well as rebuttable presumption material. This will allow for a thorough review of the case. The timing of the revelation of material should be in accordance with para 71 of the Attorney General’s Guidelines:

• When the police are seeking a charging decision under the Full Code Test from the CPS and it is anticipated that the defendant will plead not guilty, the unused material should be provided to the prosecutor by the disclosure officer at the same time as seeking the decision;
• When the police have charged a suspect on the Full Code Test under the arrangements contained in the Director’s Guidance on Charging and a not guilty plea is anticipated, then the unused material schedule should be provided to the prosecutor at the point that the case file is submitted to the CPS.
• In all other cases, the disclosure officer must provide the schedules as soon as possible after the not guilty plea has been indicated or entered.

There may be instances where an investigator seeks a charging decision on the Full Code Test and anticipating a not guilty plea, but where it is not feasible to provide the unused material schedules at the time that the charging decision is sought, for example, large and complex fraud cases, or where an arrest is not planned and the suspect cannot be bailed. In accordance with the National File Standard, where it has not been feasible to provide schedules (in FCT cases) and all anticipated not guilty plea Threshold Test referrals, officers must provide information about material identified as potentially disclosable, including the rationale for that assessment and copies of any such disclosable material where available.

When disclosure schedules are submitted, the prosecutor should expect to receive from the police:

• an MG6, or Streamlined Disclosure Certificate (in applicable cases);
• a schedule of non-sensitive material (MG6C);
• all material that the disclosure officer believes satisfies the disclosure test and a brief explanation for that belief (on the MG6E);
• material which falls into the following categories (para 7.4 of the Code):
  • information provided by an accused person which indicates an explanation for the offence with which they have been charged;
  • any material casting doubt on the reliability of a confession;
  • any material casting doubt on the reliability of a prosecution witness.
• any material which falls within the categories for the rebuttable presumption (para 6.6 of the Code and para 86 of the AG’s Guidelines) or nil return;
• a schedule of sensitive material (MG6D) or nil return;
• copies of disclosable sensitive material (where appropriate); and
• certification by the disclosure officer (on the MG6E).

The prosecutor should examine the schedules carefully to check for possible omissions from them. If there are omissions, the prosecutor should ask the disclosure officer to provide a continuation schedule. If the description on the schedule is not sufficiently detailed to allow the prosecutor to make an informed assessment, then it must be sent back to the police for the schedule to be rectified. Similarly, where there are apparent errors on the schedule, the prosecutor should seek further details from the disclosure officer and return the schedule for correction. Where the schedules are wholly inadequate, this should be done even if there are time pressures as the schedule must be sufficient for the prosecutor to consider the impact on the decision to charge and subsequently carry out their duty of disclosure.

If, following this, the prosecutor remains dissatisfied with the quality or content of the schedules, the matter must be escalated in accordance with locally agreed procedures.

In accordance with DG6, failure to supply the correct material and information for a charging decision may result in the prosecutor being unable to apply the Code and refusing to charge immediately, or at all.

Further information about the standards for the completion of MG6 schedules and Streamlined Disclosure Certificate can be found in the National Disclosure Standards.

Disclosure Record Sheet (DRS)

The DRS is an internal CPS document to record the disclosure activity throughout the life of a case. The date of receipt of the schedules and any accompanying material must be recorded on the DRS. The DRS is designed to record chronologically all actions and decisions in relation to disclosure including all pre-charge disclosure decisions. It is required in all cases. In serious cases, the Prosecution Strategy Document (PSD) or standalone disclosure strategy contains the strategy and the analysis underlying the approach to disclosure, together with the key decisions and stages. The element of duplication between the DRS and the PSD should therefore be minimal. The DRS can be linked to the PSD and can be used for quality assurance purposes.

A single DRS should be completed in respect of all non-sensitive unused material and should signpost the existence of highly sensitive unused material. A separate Highly Sensitive DRS should be created and stored together with any sensitive material.

The purpose of the DRS is to record events and decisions taken in respect of disclosure. The DRS should include all decisions, enquiries or requests and the date upon which they are made, relating to:

• the disclosure of material to the defence;
• withholding material from the defence;
• the inspection of material;
• the transcribing or recording of information into a suitable form.

Other events and actions which should be included on the DRS will include the following:

• any pre-charge discussions with the police concerning disclosure and reasonable lines of inquiry;
• any pre-charge engagement undertaken in accordance with Annex B of the Attorney General’s Guidelines;
• receipt of the MG6 series;
• that a disclosure review has taken place and any actions taken in respect of inadequate schedules (the outcome of such reviews in terms of material disclosed will be recorded on the schedule itself);
• the receipt and review of any addenda to the schedules;
• the completion and service of a Disclosure Management Document;
• contact with the disclosure officer or investigating officer in relation to sensitive unused material;
• receipt of defence statements, the review of this and any actions sent for the investigator to undertake;
• any consultation with the prosecution advocate about disclosure;
• any discussions with any other parties regarding unused material such as the court, the defence advocate or third parties;
• receipt of the prosecution advocate's advice in relation to unused material; and
• the fact of any PII applications.

Review

The prosecutor should carefully review the schedules for relevancy and apply the disclosure test. The test set out in the CPIA is an objective one. To comply, the prosecutor must disclose to the accused any prosecution material which might reasonably be considered capable of undermining the case for the prosecution, 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. Prosecution material is defined in section 3(2) of the CPIA.

The prosecutor should always inspect the material, whether sensitive or non-sensitive, where:

• it satisfies the disclosure test;
• the description (or the reasons given as to its sensitivity) remain inadequate despite requests for clarification; or
• the prosecutor is unsure if the material satisfies the disclosure test.

Reviewing sensitive material

Where the sensitive material has been given a protective marking of Secret or Top Secret, the material and/or schedule should be kept securely off file and handled in accordance with CPS Guidance. A note should be made on the DRS identifying the existence and location of the material stored off file.

If copies of sensitive material are sent by the disclosure officer with the MG6D, care must be taken to ensure that the material is handled in accordance with its protective marking category. Appropriate arrangements will need to be made for the handling of any sensitive material that is given to the prosecution advocate.

Where the prosecutor considers that material that has been described on the form MG6D is not in fact sensitive and should be described on the form MG6C, the disclosure officer must be consulted and move the item, if appropriate, to the MG6C. When considering information about sensitive material which the police identify as potentially disclosable (see Chapter 10), the prosecutor must be satisfied that the risk is real, not fanciful, and that the prejudice anticipated from disclosure of a document is serious, not trivial. If an application needs to be made to withhold material, 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. 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.

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.

It may be possible to separate non-sensitive from sensitive parts of documents and describe them on different schedules. For example, RIPA or IPA authorities may be capable of separation.

Where the prosecutor decides:

• that sensitive material requires disclosure to the accused because it satisfies the disclosure test;
• 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.

Neutral material or material damaging to the accused need not be disclosed and, unless the issue of disclosure 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 legal admissibility of evidence from sensitive sources or procedures.

Consultation

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 OIC and the prosecution advocate.

Consultation will include a careful examination of the circumstances of the case and the nature of the sensitive material. The prosecutor may be able to disclose the material in a way that does not compromise the public interest in issue. The OIC 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. On the basis of the information provided, the prosecutor will decide whether an application should be made, and the form of application required.

Where the prosecutor considers that the sensitive material should be disclosed to the defence because it satisfies the disclosure test, the police (or any person having an interest in the material) should be consulted before any final conclusions are reached. If any third party has an interest in the sensitive material, the prosecutor must ensure that the third party is consulted by the police before a final decision is made. Local protocols may impose further obligations on the prosecutor. The prosecution advocate should also be consulted.

Material may be edited, summarised, or formally admitted without compromising its sensitivity. If, however anything which meets the disclosure test needs to be held back, an application to the court should be made and the approval of the court obtained for any such partial disclosure. Where the prosecutor decides that a Public Interest Immunity (PII) application is required, see Chapter 13. Prosecutors should also ensure that a PII log is completed.

There will always be a need to consult regarding sensitive material unless the prosecutor is satisfied on the basis of the information provided on the schedule that the material clearly could not satisfy the test for disclosure. Notes should be made of any consultations and their existence noted on the DRS, with short conclusions reached, taking care that this does not elevate the classification of the DRS beyond the level of 'Official'.

Responding to defence requests for disclosure of sensitive material is dealt with in Chapter 16 of this manual.