Key requirements of the CPIA
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 CPIA Code of Practice (“the Code”) made under Section 23(1) of the CPIA governs the regulatory aspects of the CPIA. Although the Code applies only to police officers, other investigators (including HSE inspectors) are required to “have regard” to any relevant provisions of it. The revised version of the Code, which applies to investigations begun on or after 19 March 2015, is available online. The previous version is available in hard copy.
Specific roles and duties under the CPIA
3. The Code specifies a number of different roles within the investigation, with different duties attaching to different roles. These roles are:
- Investigator (reporting officer);
- Officer in charge of an investigation;
- Disclosure officer;
All of these roles and duties must be seen in the context of the rights and fair trial guarantees contained in the Human Rights Act 1998 (“HRA”), together with the additional obligations and explanations contained in the Guidelines.
4. 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 Code including in particular recording information, and retaining records of information and other material. The most important of these responsibilities is for an investigator to pursue all reasonable lines of enquiry, whether these point towards or away from a suspect. What is reasonable will depend upon the circumstances of a particular case. The new Code also refers to the “reporting officer” who in the context of HSE investigations will be the inspector completing the investigation report.
5. Officer in charge of an investigation – the inspector responsible for directing an investigation. They are also responsible for ensuring that there are proper procedures in place in the investigation for recording information and retaining records of information and other material.
6. Disclosure officer – In any investigation, there will be a disclosure officer and in larger cases, one or more deputies. A deputy disclosure office may perform any function of a disclosure officer as set out in the Code. Although the Guidelines confirm that there may be a number of disclosure officers in appropriate cases, there should always be a lead disclosure officer to be the focus of inquiries and who has the responsibility of ensuring that the investigating inspector complies with their disclosure obligations.
The disclosure officer 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 disclosed to the accused);
- disclosing unused material to the accused, at the request of the prosecutor.
7. There are additional duties that are not specifically mentioned, including:
- compiling the schedules of unused material;
- allowing the prosecutor to inspect or copy material.
8. The disclosure officer’s duties are ongoing throughout the investigation and prosecution. This means that the disclosure officer is required to conduct an ongoing review of the material throughout the prosecution and, where appropriate, provide the prosecutor with updated disclosure schedules. This includes the common law duty to identify at an early stage any material which may assist the defence in the early preparation of their case which may be prior to receipt of schedules. Such material should be revealed to the prosecutor prior to the commencement of proceedings or as soon as possible afterwards. The new Code puts greater emphasis on this. Examples could be a relevant previous conviction of a witness or the withdrawal of a witness’ evidence.
9. 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.
10. Disclosure officers or their deputies must inspect, view or listen to all relevant material that has been retained and the lead disclosure officer must provide a personal declaration to the effect that this task has been undertaken.
11 An LAO case lawyer, solicitor agent or prosecuting counsel cannot act as disclosure officer. If a solicitor agent is employed, or if the case has an LAO lawyer allocated, 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 or LAO lawyer taking over the role of the prosecutor. In these circumstances, it is important that all relevant information is available to the lawyer, to enable the correct decisions to be made.
12. Even in a case with a solicitor agent or LAO lawyer, responsibility for all aspects of disclosure remains with the disclosure officer. Specifically, the disclosure officer must prepare the disclosure schedules and sign them off. Only the material required by the CPIA to be revealed to the prosecutor should be sent to the lawyer – the disclosure officer should not send all the unused material to the solicitor agent or LAO case lawyer and expect them to prepare the schedules.
13. Prosecutor - this is the authority responsible for the conduct of criminal proceedings resulting from a specific investigation. In cases brought under the HSWA and subordinate legislation, this will initially be the inspector, although where an LAO lawyer or solicitor agent has conduct of a prosecution, the role of prosecutor will then pass to them. In prosecutions brought under other legislation, it will be the individual or body with authority to bring the prosecution. At different stages of the prosecution different people may carry out the functions of the prosecutor. In Crown Court cases the final decision on disclosure will generally be taken by the LAO lawyer/solicitor agent following discussion with the disclosure officer and prosecuting counsel.
14. The following definitions are also important:
- material is material of any kind, including information, electronically held material and objects, which may be obtained in the course of a criminal investigation and which may be relevant to the investigation. This includes not only material coming into the possession of the investigator (for example, provided by witnesses) but also material generated by him (such as an interview record). For investigations begun on or after 19 March 2015, this definition includes material inspected as well as obtained in the course of an investigation;
- material may be relevant to an investigation if it appears to an investigator/ the officer in charge of an investigation/ 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, the disclosure of which, the disclosure officer believes, would give rise to a real risk of serious prejudice to an important public interest. The disclosure officer may need to consult with the officer in charge of the investigation, the prosecuting lawyer and line management before reaching this view.