Preparing the schedules

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

The schedules

1. Standard forms are normally prepared as part of the prosecution report. The schedule of non-sensitive material (Form CPI1) is most commonly used. However the schedule of unused material (Form CPI 2) must be completed if there is sensitive material that is potentially disclosable. Even if there is no sensitive material the disclosure officer should indicate this on the CPI 2.

2. These forms include declarations that the disclosure officer must sign to certify if the material is non-sensitive or sensitive. A copy of each completed schedule must always be kept on the file. Sensitive schedules and the material therein should be kept separate from other case papers. Ideally the sensitive schedule should be on red paper to avoid any potential confusion with the non-sensitive schedule.

Stages of preparing the schedules

3. There are a number of stages to the process of preparing the schedules:

• The investigator makes the initial decision as to which material should be retained in the course of the investigation;
• The disclosure officer categorises material as sensitive or non-sensitive material;
• The disclosure officer compiles a schedule of non-sensitive unused material and a schedule of sensitive unused material;
• The disclosure officer decides what material must be revealed to the prosecutor.

4. Even when a single person is investigator/disclosure officer/prosecutor, for CPIA purposes it is still necessary to go through the different stages, considering the material in the light of the different responsibilities that attach to each role.

Timing for preparation of the schedules ^#

5. The disclosure officer must prepare a schedule:

• if the accused is likely to be tried on indictment;
• if the accused is likely to plead not guilty at a summary trial;
• in a more complex investigation where there may be a large amount of undisclosed material.

6. Normally a schedule need not be prepared if:

• the offence is likely to be dealt with in the magistrates’ court; and
• it has been admitted; or
• it appears that an accused is likely to plead guilty.

7. If unexpectedly there is a not-guilty plea or the offence is to be tried on indictment the schedules must be prepared as soon as reasonable practicable after that occurs.

8. Although the schedules need not, as a matter of legal practice, be completed when an inspector seeks approval for a prosecution, the Approval Officer will need to be satisfied that any unused material that may undermine the prosecution case or assists the defence has been identified and taken into account as part of the approval decision.

The purpose of the schedules

9. The primary purpose of the schedules is to enable the prosecutor to consider the unused material with a view to deciding whether the material should be examined in order to decide whether it undermines the prosecution case or assists the defence case.

10. The schedule for non-sensitive unused material is given to the defence so that they can consider whether they should seek further disclosure.

Description of the material on the schedules

11. The listing and description of material on the schedules must be done in a way that will allow the prosecutor to properly perform their duties in relation to unused material, including the duty of review and the duty of disclosure of material that meets the disclosure tests.

12. The Home Office Code ² requires that:

• the disclosure officer should ensure that each item of material is listed separately on the schedule and is numbered consecutively;
• the description of each item should make clear the nature of the item and should contain sufficient information to enable the prosecutor to decide whether s/he should inspect the material before deciding whether or not it should be disclosed.

13. If it is not practical to list each item of material separately, for example if there are many items of a similar or repetitive nature, these may be listed in a block and described by quantity and a generic title. However even if some material is listed in a block, the disclosure officer must ensure that any items among the material that might meet the test for primary prosecution disclosure are listed separately and described individually.

Sensitive material ³

14. Sensitive material is any material that the disclosure officer believes is not in the public interest to disclose. Examples of such material are:

• material relating to national security, for example in connection with Crown contractors;
• material the disclosure of which might facilitate the commission of other offences or hinder the prevention and detection of crime;
• internal communications such as management minutes;
• internal discussions concerning the decision to prosecute;
• internal complaints against inspectors that are still under investigation.

15. However other material which does not come within these categories may be sensitive.

16. Sensitive material is listed on a separate schedule (CPI2) that is not disclosed to the defence. Therefore particular care is required when considering:

• whether to include material on the sensitive schedule; and
• whether sensitive material comes within the disclosure test because it either undermines the prosecution case or assists the defence.

17. The schedule not only lists the sensitive material but also requires the disclosure officer to give the reason for the belief that the material is sensitive.

18. If sensitive material meets either of the disclosure tests, because it undermines the prosecution case or assists the defence:

• the material must be disclosed; or
• a PII application made to the court.

Privileged material

19. A number of categories of material from an investigation may be privileged. They include:

• the advice of the Legal Advisers Office;
• other material which comes into inspectors’ or other field professionals’ hands in order to help them carry out their role as an investigator or prosecutor more effectively. These are generally referred to as “process papers” and include:
  • Tentative views provided with the intention of assisting the investigation, e.g. weighing evidence;
  • Notes intended to help direct the investigation; and
  • Reports on whether or not to prosecute and on the proposed conduct of the case, including the prosecution report.

20. If the defence seek to obtain such material you should obtain advice from Legal Adviser’s Office.

21. Some privileged material, for example confidential complaints, must also be included on the schedule of sensitive material.

Revelation of material to the prosecutor ⁴

22. The disclosure officer must give the schedules to the prosecutor. The disclosure officer “reveals” material to the prosecutor by drawing the prosecutor’s attention to any material that may undermine the prosecution or assist the defence . This is done by completing the Disclosure Officers report – see Form CPI3. Copies of this material, together with any other material requested, should be provided to the prosecutor .

23. In making the decision concerning disclosure the prosecutor must consider the schedule prepared by the disclosure officer, who should have drawn the prosecutor's attention to any material which may undermine the prosecution case or assist the defence. In particular the disclosure officer will ensure that the prosecutor has a copy of certain categories of material for inspection, as they are likely to come within the disclosure test.

24. Disclosure Officers must specifically draw material to the attention of the prosecutor where they have any doubt as to whether it might reasonably be considered capable of undermining the prosecution case or of assisting the defence ⁵

25. The Home Office Code lists examples of such material ⁶. In the HSE context these are:

• Records of the first description of a suspect given to HSE by a potential witness, whether or not the description differs from that of the alleged offender, e.g. in gas fitter cases;
• Information provided by an accused which indicates an explanation for the offence which he has been charged;
• Material casting doubt on the reliability of a witness;
• Material casting doubt on the reliability of a confession;
• Any other material that the disclosure officer believes may fall within the test for primary prosecution disclosure.

26. However the prosecutor must not simply rely on the schedules and the material revealed by the disclosure officer. The prosecutor should be alert to the possibility that material may exist which has not been revealed to them. The prosecutor should request a fuller description of material and/or a copy of additional material if required to enable the unused material to be properly considered. The disclosure officer must supply this material if requested.

Giving Reasons

27. Throughout the disclosure process it is important that investigators, disclosure officers and prosecutors record their reasoning concerning disclosure decisions. This is necessary to ensure that there is good and consistent decision-making in the course of a prosecution. 

28. Additionally it should be borne in mind that a decision not to disclose is subject to judicial review. In order to satisfy the High Court that a proper decision making process was undertaken, HSE will need to be able to defend the process by which the decision was made, as well as satisfying the court that the decision was proportionate ⁷.

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Footnotes

1. The Home Office Code paras 6.6 –6.8
2. The Home Office Code paras 6.9 – 6.11
3. The Home Office Code paras 6.12 – 6.14
4. Home Office Code paras 7.1-7.7
5. AG's Guidelines para 30
6. The Home Office Code para 7.3
7. R v Secretary of State for Home Dept ex parte Daly [2001] 2 AC 532 HL