This guidance explains:
Inspectors are reminded that under Rule 21.2 of the Criminal Procedure Rules 2012, the initial details that must be provided to the defendant and the Court at, or before, the beginning of the day of the first hearing, must include the defendant’s previous convictions. This applies to all cases, and includes all convictions on record. This information can be obtained from the PNC.
It is essential that formal procedures are followed to ensure that HSE prosecutors comply with their duties and responsibilities under the Criminal Procedure and Investigations Act 1996 (CPIA). This guidance describes the procedures to be followed by staff. It is equally important that strict precautions are employed to ensure the security of any information obtained from the PNC so that HSE complies with the Rehabilitation of Offenders Act 1974, as amended (ROA) and the Data Protection Act 1988, as amended (DPA).
The guidance should be applied, in conjunction with that in the Enforcement Guide: Attendance of witnesses and key requirements of the CPIA to all prosecutions that are defended. It requires defendant checks for all cases and witness checks for all prosecutions that are defended. In addition, PNC checks may be employed to confirm the credibility of potential witnesses when prosecution reports are being prepared.
Further details regarding HSE policy and the use of PNC checks is contained in the following “Background Section”.
For witness and defendant checks, the prosecutor must use the check request form at Appendix 1 to obtain a PNC printout that details the required information. The record supplied will contain all previous convictions, including those that are “spent”. Checks should not be requested in order to provide “background information” (for example, any previous convictions for dishonesty or suspected aggressive behaviour) on potential defendants during an investigation.
For defence witness checks, Section 100 of the Criminal Justice Act 2003(CJA 2003) makes provision for the disclosure of details of bad character of non-defendants to be admissible in evidence. This can include details of previous convictions and cautions recorded against a defence witness. No such evidence can be admitted without leave of the court (subsection (4)). There are criteria that need to be met by the prosecution before such evidence can be admitted. See the Legislation.gov.uk website.
Where a solicitor agent is used to conduct the case, the Inspector remains the prosecutor, and as such, must make the request for witness checks.
Exceptionally, prior to the approval of a case, it may be necessary to make witness checks in order to judge the credibility of a witness. This should be factored into the assessment of the strength of the evidence during the case approval process. This assessment need not involve a solicitor agent, however, advice from HSE lawyers may be useful if the decision is a complex one.
Since such checks will rarely be necessary, each case will need to be judged on its own facts. Examples of situations when checks may be necessary are:
Where HSE staff are witnesses the following checks must be undertaken:
The inspector must ensure that HSE staff who are being checked are aware that these checks will happen, and the reasons for them prior to submitting the request.
The same checks must be carried out on inspectors who are witnesses in prosecutions that result from their own investigations..
Should a PNC check on a member of HSE staff achieve a positive result, the PNC operator will contact that individual’s line manager by phone, and send written confirmation to the individual’s line manager, not the inspector who originated the request.
A disciplinary check must be undertaken by the individual’s line manager, by accessing disciplinary records held in the Resource Management (RM) system. The prosecuting inspector should contact the individual’s line manager or authorised deputy and request a disciplinary check is undertaken as outlined in Appendix 4.
If there are no adverse disciplinary entries then an e-mail stating this should be sent to the inspector making the request.
Should an individual have an adverse disciplinary record the individual’s line manager must inform the line manager, of the inspector making the request, of the adverse record including the following details:
The line manager of the requesting inspector will then inform the solicitor or solicitor agent that they have received adverse check results and arrangements should be made to include the line manager in the discussions with the solicitor agent on the relevance of the results for the case.
In the interests of staff confidentiality, the requesting inspector and their line manager should be aware of the need for confidentiality (and the consequences of breaching this) and keep the material securely, revealing it in the first instance only to an HSE solicitor or a solicitor agent.
If either you (on the advice of your solicitor agent) or an HSE solicitor decides that it is necessary to disclose the material, it should be served on the defence solicitor acting in the case, either personally, or if done by post, the envelope should be addressed for the personal attention of the defence solicitor and marked "In confidence".
Arrangements must be made to discuss the relevance of the finding with the solicitor agent and the individual’s line manager.
An adverse judicial finding is a finding by a court, expressly or by inevitable inference, that an HSE witness has knowingly, whether on oath or otherwise, misled the court.
In the event of a Guney finding against an HSE member of staff, L&E are informed.
L&E will inform the individual's line manager.
The line Manager should include mention of any Guney’s in the disciplinary reports to a prosecutor.
Where no adverse judicial findings are recorded, The PNC operator will send an email stating this to the originator;
Where there is a record of an adverse judicial finding against an individual:
See Appendix 3 for advice on HSE’s duty to record and disclose adverse judicial findings.
Where the witness is an employee of another government department, including the Police, the originator should request the required information direct from the relevant department by means of the letter template at Appendix 2.
If the prosecutor, on the advice of a solicitor agent or HSE lawyer, discloses material subject to these arrangements, it should be served on the defence solicitor acting in the case, either personally, or if done by post, the envelope should be addressed for the personal attention of the defence solicitor and marked ’In confidence’.
Any information on staff from HSE, other government departments or the police, including Adverse Judicial Findings (Guney findings) must be treated confidentially.
PNC checks will be carried out by accredited staff in FOD HQ. Responses to inspector will be sent directly by the member of staff who accessed the PNC.
All personal information relating to criminal matters is classified as Official Sensitive, and must be treated as such. Inspectors, line managers, and others who are entitled to handle this information such as litigation officers, solicitor agents and legal representatives, must consider the need for confidentiality, and ensure that information resulting from PNC and disciplinary record checks is disclosed only to authorised users for legitimate purposes. They should ensure that there is no unauthorised access, deletion or alteration of this information.
For information on the storage, handling and disposal of such information, see internal Security Policies, protective markings and destruction procedures.
In the interests of staff confidentiality, the inspector and their line manager should be aware of the need for confidentiality and the consequences of a breach, and keep the material securely, revealing it in the first instance only to an HSE solicitor or solicitor agent. Material related to HSE witnesses and adverse judicial findings should be marked ‘Official Sensitive’.
The above procedures ensure that HSE prosecutors comply with their duties and responsibilities under CPIA and DPA.
These actions advise inspectors on compliance with the following elements of disclosure as required by CPIA and the Attorney General’s Guidelines on Disclosure.
Initial disclosure should be carried out as soon as possible after a not guilty plea in the Magistrates’ Court, or immediately after transfer of the case to Crown Court.
As part of the disclosure duty, if such information is relevant to an issue in the trial, the prosecutor must disclose information relating to the criminal convictions or cautions of all prosecution witnesses (including convictions, which are spent under section 7(2) of the ROA. It is also necessary to disclose information relating to relevant disciplinary matters for any HSE or other Government Department staff who are prosecution witnesses.
Any disagreement between the Inspector (the prosecutor) and the solicitor agent on this point should be referred to Legal Adviser’s Office for advice.
It may be necessary to disclose the following information for all prosecution witnesses:
Previous criminal convictions;
Ongoing criminal matters;
In addition, for HSE staff appearing as prosecution witnesses:
Disciplinary findings of guilt;
Ongoing disciplinary matters
Previous adverse judicial findings. (As required by R v Guney  2 Cr
App R 242)
Occasionally, the defence may request such information prior to a case going to court. The prosecutor may choose to serve this information at that time so as to allow the defence time to review the information prior to court. However, the legal duty to serve the information on the defence is as detailed directly above.
Further guidance on disclosure can be found in the Enforcement Guide for England and Wales Key requirements of the CPIA.
The Home Office controls access to the PNC and is vigilant in ensuring that the system is not misused. As a condition of direct access to the PNC, certain control measures have to be implemented in order to comply with Home office requirements. Accordingly, L&E have instigated the following organisational system:
In order to achieve the above:
Line managers should note:
All staff should note:
All staff should be aware of HSE's duty to record and disclose adverse judicial findings. An adverse judicial finding is a finding by a court, expressly or by inevitable inference that an HSE witness has knowingly, whether on oath or otherwise, misled the court. A record will be kept of:
It is the duty of any advocate representing HSE to record an adverse judicial finding in full. A transcript of the judgment should be obtained wherever available. The finding and the transcript will then be forwarded by the advocate to the Legal and Enforcement Team in FOD HQ, who will record and action as described in section 3. The occurrence of adverse judicial findings against HSE staff is expected to be minimal.
Previously, disciplinary checks on HSE staff who were to act as witnesses were carried out centrally. With the introduction of shared services, line managers are responsible for maintaining disciplinary records.
In order to check for records of disciplinary action, the prosecutor must locate the line manager of the witness and request a check to be made. The line manager of the individual should:
The disciplinary record can then be read.
Both the line manager and the receiving manager should note the provisions in section 4 concerning the confidentiality of this information.
Where relevant records are discovered the line manager of the individual must convey the results of the check to the prosecutor’s line manager observing procedures for material classified as ‘Restricted’. If there are no adverse disciplinary entries then an e-mail stating this should be sent to the inspector requesting the check.