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Approach to common categories of material

Disclosure of unused material in criminal proceedings

Notebooks

1. Inspectors should remember that notebooks containing a record of the investigation will be relevant material and potentially disclosable to the defence in any criminal proceedings. They should not be regarded as “private documents”. The following points are important:

2. Therefore, it is important that:

Process and administrative material

3. Process material is material that relates to the prosecution process, such as hearing notifications.  Administrative material is material generated during the investigation but which has no impact on it, such as correspondence with witnesses arranging appointments or discussions about conference dates. Such material should be clearly identified and is not usually relevant.  This means that it does not need to be scheduled (although it should be retained). However, it should not be assumed that an item is not relevant simply because of its generic description.  It is important that the content of each piece of material is considered to decide whether it is relevant. If the issues in a prosecution change, such material may become relevant.  For example, if the defence allege abuse of process relating to delay in bringing a prosecution, material showing the efforts made to contact a witness may become relevant.

Digital material

4. Investigators are increasingly finding that investigation material is stored in a digital format.  This includes both material held by potential defendants and material held by HSE and other investigators.  Digital material includes email, office files, system files, digital photographs, audio, scanned and faxed material and the hard drives and memory files on which they are stored.  The Attorney General has issued specific guidance on the disclosure of digital material which is an annexe to the Guidelines on Disclosure.

5  E-mails:  All types of information about the prosecution process and the prosecution case may be contained in e-mail messages. Some of that information may be disclosable. Consequently, care should be taken as to the information that is put in e-mails.  In order to be able to perform the CPIA duties properly, and to enable the disclosure officer and the prosecutor to fulfil their CPIA duties, an investigator must record and retain any potentially relevant e-mail material in a durable and retrievable form. Any potentially relevant e-mails must be retained on the prosecution file for consideration in the course of the disclosure process. This is normally done by printing off the e-mails concerned but could be done electronically, as long as it is in a durable form and kept on the file or electronic folder. In particular, investigators must ensure that relevant e-mails do not auto-archive.

6. HSE computer records (e.g. COIN) : these may contain potentially relevant material.  Any computer record / report relating to a defendant should be revealed to the prosecutor so that the information contained in the reports can be considered in the context of the CPIA disclosure regime, although the material will not be disclosable unless it is relevant.

7. Computers and electronic records held by a suspect: usually any relevant records can simply be printed off by the dutyholder and passed to HSE, either voluntarily or in response to a requirement using statutory powers.  In unusual cases, the inspector may be of the view that it is necessary to obtain the hard drive of a computer for analysis.  It is extremely important that such action should be fully discussed in advance with Legal Adviser’s Office to ensure that such action is justified and is undertaken in the correct way. Inspectors should read the Attorney General’s Guidance before consulting LAO.

Expert and specialist evidence

8. The use of experts in HSE prosecutions is extremely common. However, it does raise specific issues in relation to the disclosure of material.

9. Material relating to the development of expert opinion is potentially disclosable and experts should keep any relevant material that they have in their possession in a suitable form for possible disclosure. The disclosure officer must ensure that this information is revealed to the prosecutor. External experts, and even experts within HSL, may hold “third party material” (see below). Whilst the CPS has issued its own guidance to expert witnesses, HSE’s instructions are contained in the Expert evidence  section and in the investigation operational procedures.  However, especially when working with the police, inspectors should be aware that the CPS has its own forms for experts to complete and if the expert uses them, they can be accepted.

Experts' disclosure obligations

10. Once an expert has been appointed, s/he should be reminded that, as part of his/her duty to the court, s/he must assist in ensuring that the prosecution complies with its disclosure obligations. As with members of the investigating team, experts should be aware of the requirements to record, retain and reveal material in the course of preparing the report and giving expert evidence in court.

Recording and retaining

When and how to record

11. Experts must begin to record relevant information from the date that they receive instructions. The duty to record continues for the entire period they are involved.

12. Records should be in durable form. Notes should be structured in a manner that facilitates review and any updates, alterations or comments should be clear. It is important that the notes are clear and comprehensive so as to allow anybody who subsequently reviews them to have a full understanding of the position at any given time. In particular, notes should be sufficiently detailed, and expressed in such a way, that other experts in the field are able to follow the nature of the work undertaken and to identify both any assumptions made and the inferences drawn from the work.

13. Records of communications between inspectors and experts should always indicate the date, the person(s) involved and a brief description of what was said. It is important that points of agreement (or disagreement) and agreed actions are recorded.

14. The format of record used will depend on the size and complexity of the investigation, but it might be:

What to record and retain

15. Experts should record all work carried out, and any findings reached, in relation to the investigation and prosecution case. They should be instructed to retain everything, including physical, written and electronically captured material, until otherwise instructed and the investigator has indicated the appropriate action to take.

16. The following offers general guidance on material to be recorded and retained by an expert, but is not an exhaustive list:

How long to retain

17. As with all other material generated in the course of an investigation, the period of time for which expert materials are required to be retained will vary from case to case and will depend on a number of factors including the nature of the offence, the stage and status of any legal proceedings, and whether the case is of special interest. It must also be remembered that the retention requirement may alter as a result of a change of circumstances during the course of the investigation. See Period of retention for further guidance.

Revealing material

What to reveal

18. The expert is required to reveal to the disclosure officer all the material s/he has recorded. It is a necessary and important part of the expert’s disclosure obligations to make the prosecution team aware of all the material that is in his/her possession in relation to the investigation. This will enable the disclosure officer to make informed decisions as to what material is relevant and whether it satisfies the disclosure test.

19. The expert has no role in determining what should be disclosed to the defence and s/he should follow instructions in relation to used and unused material. The disclosure officer will schedule the relevant material and apply the disclosure test. Any disclosure to the defence should be carried out under the guidance of the prosecutor, as the use of experts can lead to difficult disclosure issues. If necessary, the assistance of the prosecutor should be sought as early as possible.

20. All expert reports, other than the final one, should be identified as drafts, making it clear that they do not represent a final report (see Draft reports). Materials which may have some bearing on the offence charged, and the surrounding circumstances of the case, including the results of all tests, must be made known to the disclosure officer who must disclose them to the defence.

How to reveal

21. The expert’s report or statement will set out his/her opinion and the material upon which s/he relies. In addition to the report, the expert should be asked to supply a list of any material that s/he has not relied upon, for example:

22. This list will assist the disclosure officer in scheduling the unused material relevant to the case. The expert should remember that revelation to the prosecuting team does not necessarily mean disclosure to the defence.

Disclosure of the expert report

23. If the prosecution intends to rely on expert evidence, Part 33 of the Criminal Procedure Rules 2013 requires disclosure of that evidence and associated material irrespective of the CPIA regime. This material should, however, be retained in the course of the investigation in accordance with the CPIA disclosure requirements.

24. The Criminal Procedure Rules state that a party who wants to introduce expert evidence must serve the court and each other party with the expert report as soon as practicable. (Rule 33.4).  Consequently, a copy of any expert report that the prosecution intends to use in evidence must be provided to the defence and court and the expert must be informed of this. HSE expert reports will usually form part of the evidence bundle in any event.

25. In addition to the above requirement to provide the actual report, the defence can make a request for a copy of (or to inspect) “a record of any examination, measurement, test or experiment on which the expert’s findings and opinion are based, or that were carried out in the course of reaching those findings and opinion, and anything on which any such examination, measurement test or experiment was carried out.” (Rule 33.4(1)(c)). It is also open to the prosecution to make such an application in respect of any defence expert. With regards to unused material, this entitlement is interpreted widely.

26. Where an expert report is to be used as part of the prosecution case, there are many types of material that might be relied upon or created and which may or may not be unused material that is potentially disclosable. These types of material can generally be placed in the following categories:

  1. Material provided to the expert by the inspector. This will usually, but not always, be the evidence upon which the prosecution relies;
  2. Other material the expert uses in completing the report, for instance established scientific findings or other published or unpublished texts, such as research reports, articles, codes of practice and guidance;
  3. Records of any observations, tests, calculations or other procedures which are not part of the final report (any such records that are part of the final report must, of course, be produced as part of the prosecution evidence);
  4. Draft reports or summaries thereof from the expert; and
  5. All correspondence or other communications passing between the expert and the inspector, for instance instructions to the expert and notes of telephone conversations, other than those between the expert and lawyers (which are legally privileged).

27. The defence is entitled to see any material provided by the inspector to the expert (category (1) material in the above paragraph). This will usually form part of the prosecution case and will therefore be provided to the defence in any event. However, where the expert has been provided with unused material, the defence, upon written request, will be allowed to see this material. This should not cause any difficulties as this material will have been scheduled as normal as part of the disclosure process. However, inspectors should be careful not to provide sensitive or privileged material (such as the investigation and prosecution reports) to an expert, as these will then be disclosable to the defence.

28. The Criminal Procedure Rules also allow the defence to see the material listed at (2) and (3) above. This material should normally be listed within the expert report and therefore disclosure to the defence should not cause any problems. Any such material should be scheduled as normal by the disclosure officer.

29. If an expert report is obtained but is not used as part of the prosecution case, it should be treated as any other document in accordance with the CPIA requirements on disclosure, that is scheduled, considered under the disclosure test and disclosed to the defence if appropriate. Any associated documentation, such as instructions to the expert, should be treated in the same way.

30. Draft reports (category (4) above) should be considered in the same way as other draft statements.

Third party material

31. “Third party material” is material held by other organisations that may be relevant to an issue in the case. Guidance on disclosure issues relating to this type of material are contained in the guidelines.

32. Material held by Government departments or other Crown bodies:  Organisations in this category include:

Note that police forces are not strictly Crown bodies as chief police officers are independent office holders under the Crown. However, the principles outlined in the AG’s Guidelines concerning third party material also apply to the police.  Where the investigation is one being conducted jointly with the police under the Work Related Death Protocol then the principles of that protocol should also be considered.

33. The Guidelines state that 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 a case, reasonable steps should be taken to identify, secure and consider such material.  Although what is reasonable will vary from case to case, the prosecution should inform the department or other body of the nature of its case and of relevant issues in the case in respect of which the department or body might possess material, and ask whether it has such material.  It should be remembered that HSE cannot be regarded by the court or the defence to be in constructive possession of material held by other government departments or Crown bodies simply by virtue of their status as a governmental body.

34. Where, after reasonable steps have been taken to secure access to such material access is denied, the disclosure officer should discuss with the prosecutor (solicitor agent or LAO lawyer) what further steps, if any, might be taken to obtain the material or inform the defence of the position.  Any decision should take account of whether the material or information might reasonably be considered capable of undermining the prosecution case or or assisting the defence.  The prosecutor is not under an absolute obligation to secure the disclosure of the material or information. They enjoy what might be described as a ‘margin of consideration’ as to what steps he regards as appropriate in the particular case.

35. Material held by other agencies: There may be cases where the investigator, disclosure officer or prosecutor believes that a third party other than a government or Crown body has material or information which might be relevant to the prosecution case.  Examples of such third parties are:

36. In such cases, if the material or information might reasonably be considered capable of undermining the prosecution case or of assisting the case for the accused, the prosecution should take what steps they regard as appropriate in the particular case to obtain it.  If the third party declines to provide the material or refuses access to it, the matter should not be left. If, despite the reasons offered by the third party, it is still believed that it is reasonable to seek production of the material or information it may be possible for the prosecution to apply for a witness summons to require a representative of the third party to produce the material to the court. In such a circumstance advice should be obtained from Legal Adviser’s Office before decision is made as to how to proceed.

37. If relevant information comes to the knowledge of the prosecution as a result of liaison with third parties, for example in the course of informal discussions, it should be recorded in a “durable or retrievable” form, most obviously a file note, as soon as possible.

38. If third party material is found to be disclosable because it either undermines the prosecution case or assists the defence, the third party should be consulted  before disclosure takes place. This will give the third party the opportunity to raise any public interest considerations which might require a court to decide whether the material should be disclosed.

39. If a disclosure officer is of the view that there is potentially relevant material held by a third party abroad, then they should consult Legal Adviser’s Office on the steps to take.

Third party material held by HSE

40. HSE may hold material which is relevant to a prosecution undertaken by another prosecuting agency, most obviously the Crown Prosecution Service or the Environment Agency. In such case, HSE will be the “third party” holding the material.

41. Advice should be sought from Legal Adviser’s Office if an inspector receives a request to disclose such material to another prosecuting agency. It is important that HSE fully complies with disclosure requirements affecting such material. However, particular care will be required if HSE is itself prosecuting or considering prosecuting, relying on the same material, or if the material is sensitive or legally privileged.

Requests for disclosure under the Anti-terrorism, Crime and Security Act 2001

42. HSE may be asked by other organisations that carry out criminal investigations or prosecutions (for example, the police or the Crown Prosecution Service) to disclose information pursuant to the Anti-terrorism, Crime and Security Act 2001 (“ATCSA”). Under section 17 of that Act, an investigating authority may request information which was obtained by HSE for the purpose of assisting their criminal investigations or proceedings (whether in the United Kingdom or abroad), including whether these investigations or proceedings should be initiated or brought to an end. Section 28(7) HSWA has been amended by section 17(1) ATCSA to permit such disclosure

43. Requests for information under section 17 of the ATSCA are not limited to crimes of terrorism.

44. HSE has a discretion as to whether or not to comply with a request for disclosure of information under section 17 of ATCSA. The Act imposes an obligation on HSE as a public authority to ensure that disclosing the information would be proportionate to what the investigating authority is seeking to achieve. This will, necessarily, depend on the circumstances surrounding each individual request.

45. As a public authority, HSE must comply with the provisions of the Human Rights Act 1998. Accordingly, any disclosure under ATCSA must:

46. Any disclosure must also comply with the provisions of the Data Protection Act 1998.

47. Advice must be sought from Legal Adviser’s Office if an inspector receives a request from another investigating or prosecuting agency to disclose information pursuant to section 17 ATCSA. While it is important that HSE fully complies with any disclosure requirements, particular care will be required if HSE is itself prosecuting or considering prosecuting, relying on the same material.

Previous convictions of witnesses

48. Under the CPIA, a prosecutor has a duty to disclose to the defence relevant information which may assist the defence or undermine the prosecution. This includes information about prosecution witnesses upon whom HSE intends to rely which meets the disclosure criteria. Such information may include previous criminal convictions, ongoing criminal matters and formal cautions. If HSE staff or other investigators such as police officers are to appear as prosecution witnesses, then disclosure may also include disciplinary findings of guilt, ongoing disciplinary matters and comments made in other cases about their reliability as witnesses. For further guidance, see the section Witnesses and statements – Attendance of witnesses and OC/168/6.  Any relevant material should be disclosed as part of the initial disclosure exercise.

49. There may be exceptional circumstances, for example if a case relies on the credibility of a particular witness, when it will be necessary to obtain the witness check at an earlier stage. This will allow any previous convictions of the witness to be taken into account when the prosecution report is being considered for approval.

Information obtained from complainants

58. It is becoming more common for information to be given to an investigator by a complainant who wishes to remain anonymous. This should be recorded in accordance with HSE’s operational procedures.

59. The complainant may give details of his/her identity but require that these details are not disclosed. If this happens, a note should be made of the identity of the complainant, the information that was given, together with details of the time, place and circumstances in which the complaint was made. These details should be retained and revealed in due course to the disclosure officer and prosecutor using the sensitive material schedule.

60. If the complainant refuses to give details of his/her identity, a note of the refusal must be recorded, together with any information that was given and the time, place and circumstances in which it was provided. This information must be retained and revealed to the disclosure officer and prosecutor using the sensitive material schedule.

61. The material may be disclosable if it meets the disclosure test. However, if the prosecution does not want the information and/or identity of the informant to be disclosed, it will be necessary to apply to the courts for permission to withhold the information on the grounds of public interest immunity (a “PII application”).

Updated 2014-09-25