Approach to common categories of material
Disclosure of unused material in criminal proceedings
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:
- As a matter of good practice each notebook should bear the name of the inspector and the date that the notebook use commenced
- A notebook may contain material which is liable to disclosure if it potentially undermines the prosecution case or assists the defence case
- It must be clear what any entry within the notebook relates to, so as to assist a later disclosure decision should the investigation or inspection lead to a prosecution
- Even if the notebook does not contain any material which satisfies the disclosure tests, the defence will be entitled to inspect it if the maker of the notes wishes to refer to them when giving evidence
2. Therefore, it is important that:
- notebooks contain only material which relates to inspections and investigations (including measurements, informal admissions and other factual information)
- it is clear to which investigation each entry refers
- each note should be clearly headed and dated
- the status of any entry is clear and, if necessary, suitably qualified, for example to show that measurements are approximate
- entries are unambiguous and cannot be misrepresented. This is particularly important if an entry suggests or apportions blame. The defence may argue that there was bias in the investigation and that an inspector did not fulfil the requirement under the Criminal Procedure and Investigations Act 1996 (CPIA) to be a “finder of fact” for both the prosecution and defence
- notebooks should be used and kept in such a way that it is clear that the contents have not been altered or otherwise tampered with. For example, entries must usually be written in a permanent ink form (subject to any local agreement).
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.
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.
Third party material
8. “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.
9. Material held by Government departments or other Crown bodies: Organisations in this category include:
- The Police
- The Crown Prosecution Service
- The Coroner / Coroner’s Officer
- The Environment Agency
- HM Revenue and Customs
- The Charity Commission
- The Department for Work and Pensions
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 deaths protocol then the principles of that protocol should also be considered.
10. 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.
11. 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.
12. 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:
- A local authority
- A hospital or doctor
- A provider of forensic services
13. 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.
14. 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.
15. 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.
16. 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
17. 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.
18. 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
19. 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
20. Requests for information under section 17 of the ATSCA are not limited to crimes of terrorism.
21. 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.
22. As a public authority, HSE must comply with the provisions of the Human Rights Act 1998. Accordingly, any disclosure under ATCSA must:
- be for one of the purposes listed in section 17 ATCSA;
- be necessary for one of the purposes listed in Article 8(2) of the European Convention on Human Rights; and
- meet the test of proportionality.
23. Any disclosure must also comply with the provisions of the Data Protection Act 1998.
24. 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
25. 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 – Previous convictions of witnesses. Any relevant material should be disclosed as part of the initial disclosure exercise.
26. 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
27. 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.
28. 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.
29. 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.
30. 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”).