Key requirements of the CPIA

For investigations commenced before 4 April 2005 consult Legal Adviser's Office

The Home Office Code

1. An important aspect of the CPIA is that it sets standards and procedures for investigators that:

• regulate the investigation process;
• regulate the recording and retention of material that is found or is generated in the course of an investigation.

2. The Code of Practice (The Home Office Code) made under Part II of the CPIA governs the regulatory aspects of the CPIA. Although the Home Office Code applies only to police officers, other investigators (including HSE inspectors) are required to “have regard” to any relevant provisions of the Home Office Code ¹.

Specific roles and duties under the CPIA

3. The CPIA requires that “all reasonable lines of enquiry are pursued’’ in the course of an investigation. Implicit in this phrase is the requirement that investigators should pursue lines of enquiry that could assist the defence. This is clearly a move away from the normal investigation process in which the investigator primarily looks for evidence to support the prosecution case. It requires the investigator to be a “finder of fact”.

4. The Home Office Code specifies a number of different roles within the investigation, with different duties attaching to different roles. Although within HSE one person may carry out these roles, for definition purposes these roles are ²:

• Investigator;
• Officer in charge of an investigation;
• Disclosure Officer;
• Prosecutor.

5. Investigator – any investigator, including a specialist investigator, involved in the conduct of a criminal investigation. All investigators have a responsibility for carrying out the duties imposed under the Home Office Code, including in particular:

• recording information; and
• retaining records of information and other material.

6. Officer in charge of an investigation – the inspector responsible for directing an investigation. The officer in charge of an investigation is also responsible for ensuring that there are proper procedures in place to:

• record information; and
• retain records of information and other material obtained in the investigation.

7. Disclosure Officer – There may be more than one disclosure officer depending on the size and nature of the case; he is responsible for a range of duties including.

• examining material retained during the investigation;
• “revealing” material to the prosecutor and certifying that this has been done. (The disclosure officer “reveals” material to the prosecutor by drawing his/her attention to material that is potentially disclosable, and providing copies of certain categories of material. It does not mean that the material will necessarily be disclosedto the accused)
• disclosing unused material to the accused, at the request of the prosecutor.

8. There are additional duties that are not specifically mentioned, including:

• listing material on the schedules of unused material;
• revealing certain categories of material to the prosecutor;
• allowing the prosecutor to inspect or copy material.

9. The disclosure officer’s duties are ongoing throughout the investigation and prosecution. This means, for example, that the disclosure officer is required to review material progressively.

10. Disclosure Officers should always err on the side of recording and retaining material where they have any doubt as to whether it may be relevant.

11. The AG’s Guidelines make it clear that the regime set out in the CPIA 1996 as updated by the CJA 2003 must be scrupulously followed ³ and Officers appointed as disclosure officers must have the requisite experience, skills, competence and resources to undertake their vital role ⁴.

12. The Attorney General’s Guidelines also suggest that there may be a number of disclosure officers especially in large and complex cases. In such cases there should be a lead disclosure officer whose responsibility it is to ensure that the investigator’s disclosure obligations are complied with.

13. Disclosure officers or their deputies must inspect, view or listen to all relevant material that has been retained and must provide a personal declaration to the effect that this task has been undertaken.

Prosecutor

14. The authority (i.e. HSE) responsible for the conduct of criminal proceedings.

15. In practice, within HSE this role will fall to individual inspectors, the HSE Legal Adviser’s Office, solicitor agents or counsel. At different stages of the prosecution different people may carry out the functions of the prosecutor. For example, at the time of approval of a prosecution the approval officer will be the prosecutor.

Allocation of roles

16. In most HSE investigations and prosecutions the inspector and their line manager will be responsible for carrying out all the roles. However in complex cases the various roles may be split and allocated to different inspectors.

17. The Home Office Code ³ sets out in more detail what inspectors need to do to meet the operational requirements. However all of these requirements must now be seen in the context of the rights and fair trial guarantees contained in the HRA, together with the additional obligations and explanations contained in the Guidelines.

18. If a solicitor agent is employed, they should be contacted an early stage after appointment to discuss disclosure of unused material. However, the role of disclosure officer remains the same with the solicitor agent taking over the role of the prosecutor. In these circumstances it is important that all necessary information is available to the solicitor, to enable the correct decisions to be made.

19. Even if a solicitor agent is employed, responsibility for all aspects of disclosure remains with the inspector.

20. In Crown Court cases the final decision on disclosure will generally be taken by the solicitor following discussion with prosecuting Counsel.

Other definitions

21. The following definitions are also important:

• material is material of any kind, including information and objects, which may be obtained in the course of a criminal investigation and which may be relevant to the investigation;
• material may be relevant to an investigation if it appears to an investigator/ the officer in charge of an investigation/ 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;
• sensitive material is material which the disclosure officer believes, after consulting the officer in charge of the investigation, disclosure of which would give rise to a real risk of serious prejudice to an important public interest.

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Footnotes

1. Section 26 CPIA and Home Office Code, para 1.1
2. Home Office Code, para 2.1
3. Para 4 AG’s Guidelines
4. Para 24 AG’s Guidelines
5. Home Office Code paras 3 - 10