Preparing the schedules
Disclosure of unused material in criminal investigations
1. The disclosure officer has a duty to create schedules which list all the relevant material from the investigation. They must also identify all material from the schedules which satisfies the disclosure test and explain why they have come to that view. They must submit the schedules and copies of disclosable material to the prosecutor. In particular they must supply to the prosecutor a copy of material falling into any of the categories described in paragraph 7.3 of the Code.
HSE’s Material and Evidence Management Tool should be used to create standard forms of schedules. They comprise the non-sensitive material schedule (Form CPI1) and sensitive material schedule (Form CPI 2). Both of these schedules must be completed, using MEMT, with a nil indication if there is no sensitive material.
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 any sensitive material should be kept separate from other case papers. Ideally the sensitive schedule should be on pink 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 (“relevant material”).
- 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: investigations commencing prior to 19 March 2015
5. The disclosure officer must prepare a schedule if:
- the accused is charged with an offence which is triable only on indictment;
- the accused is charged with an either way offence which is likely to be tried on indictment or where the accused is likely to plead not guilty at a summary trial; and
- the accused is charged with a summary offence and he is likely to plead not guilty.
6. However, a schedule may not be needed 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.
Even if a formal schedule is not required, inspectors should keep a list of all material they hold in relation to an investigation from the beginning. Especially in investigations which are likely to be complex and where it is anticipated at an early stage that a trial is likely, the scheduling of unused material should start as soon as possible.
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 reasonably 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.
Timing for preparation of the schedules: investigations commencing on or after 19 March 2015
9. The Code which came into force on 19 March 2015 changes the timing of preparation of service of disclosure schedules where the accused is charged with or summonsed for an offence which is either summary only, or an either way offence that is likely to remain in the magistrates’ court. It introduces new streamlined disclosure certificates (schedules).
10. If it is considered that the accused is likely to plead guilty, then a disclosure certificate is not required but there is still a common law duty on the prosecution to disclose material that may assist the defence in the early preparation of their case. The investigating inspector must certify whether there is such material by completing the appropriate form on MEMT and include it with the investigation report, together with any relevant material, so that the material can be considered by the prosecutor and disclosed with initial details.
11. If it is considered that the accused is likely to plead not guilty, a streamlined disclosure certificate must be completed in MEMT, together with a sensitive material schedule if appropriate, and a disclosure officer’s report. These should be included with the investigation report. They should be considered by the prosecutor prior to the first appearance and disclosed at the hearing where the not guilty plea is entered, or prior to this if an indication of a not guilty plea is received. The inspector must also complete the certificate referred to in the previous paragraph relating to common law disclosure.
12. If, contrary to expectations, the accused pleads not guilty at a first appearance, the disclosure certificate and any relevant material must be be prepared, considered and served as soon as possible thereafter.
13. For cases to be held at the Crown court, the procedure has not changed.
The purpose of the schedules
14. 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 and consequentially should be disclosed to the defence.
15. The schedule of non-sensitive unused material is served on the defence so that they can consider whether the prosecution has fulfilled its obligations.
Description of the material on the schedules
16. 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. The disclosure officer should also bear in mind that the descriptions should also be in a form that will enable the defence to understand what the material is when the non-sensitive schedule is served on them.
17. The Code 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 they should inspect the material before deciding whether or not it should be disclosed
18. 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 initial prosecution disclosure are listed separately and described individually.
The investigator or disclosure officer may seek advice from the prosecutor about whether any particular item of material may be relevant to the investigation and should therefore be scheduled.
19. Sensitive material is any material that the disclosure officer believes is not in the public interest to disclose, and therefore attracts public interest immunity from disclosure. Examples of such material are given in paragraph 6.12 of the Code and those more relevant to HSE are:
- material relating to national security, for example in connection with Crown contractors;
- material given in confidence;
- material the disclosure of which might facilitate the commission of other offences or hinder the prevention, investigation and detection of crime;
- material relating to the identity of informants;
- material relating to the whereabouts of observation posts;
- Material generated by a corporate or financial regulator.
20. However other material which does not come within these categories may be sensitive. Material such as internal communications and internal discussions in relation to the investigation/prosecution are not automatically sensitive. They may be non-relevant or legally privileged, in which case they should not be scheduled. However, the content of each relevant internal item needs to be considered to see if it is sensitive or not.
21. 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
- whether sensitive material comes within the disclosure test because it either undermines the prosecution case or assists the defence
- Whether the material could be included on the non-sensitive schedule in redacted (edited) form (legal advice will usually be needed in this case)
22. 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.
23. If sensitive material meets either of the disclosure tests, because it undermines the prosecution case or assists the defence,then the disclosure officer should take legal advice on whether the prosecution should make a public interest immunity application to the court in relation to that material.
Public interest immunity (PII) applications
24. If, in rare cases, material that would normally be disclosed falls outside the legal requirements for disclosure by coming within one of the categories of public interest immunity, it will be necessary for the prosecution to make a PII application to the court to withhold material from the defence. If the prosecution is not prepared either to disclose the material or make a PII application, it has to consider withdrawing the prosecution.
25. When considering whether to grant immunity, the court must carry out a balancing exercise between the different and competing interests of the prosecution and defence. The Supreme Court set out in the case of R v H and R v C a series of questions which any court dealing with a PII application must address:
- What is the material which the prosecution seek to withhold? This must be considered by the court in detail.
- Is the material such as may weaken the prosecution case or strengthen that of the defence? If no, disclosure should not be ordered. If yes, full disclosure should (subject to the questions which follow) be ordered. It should be noted that the prosecution should only be making an application in respect of material which, on the face of it, passes the disclosure test. The same case makes it clear that PII applications must not be used as a “safety net” for the prosecution. Only in truly borderline cases should the prosecution seek a ruling of the court.
- Is there a real risk of serious prejudice to an important public interest (and, if so, what) if full disclosure of the material is ordered? If no, full disclosure should be ordered.
- If the answer to (2) and (3) is yes, can the defendant’s interest be protected without disclosure or disclosure be ordered to an extent or in a way which will provide adequate protection to the public interest in question and also afford adquate protection to the interests of the defence?
Each case is different and must be considered on its own facts. A court may change its decision during the course of a trial if the balance of interests changes.
26. The Guidelines require that before a PII application is made, a prosecutor should aim to disclose as much material as possible, for example, by giving the defence redacted or edited copies of summaries.
27. Additionally, the Guidelines require that:
- the court must be provided with full and accurate information;
- the prosecution advocate must examine all material that is the subject matter of the application and make any necessary enquiries of the prosecutor and/or investigator;
- the prosecutor (or representative) and/or the investigator should attend the application.
28. PII applications are normally held before the judge in private (“in camera”) rather than in open court. It is now unusual for the defence not to be notified that the application is taking place, but in certain circumstances they will not be notified of the reason for the application or at most, may be given notice of the category of material involved. This privacy allows the judge to direct sensitive questions to those who have most knowledge of the case. The decision on how to conduct the application will be made by the case team (including the prosecution counsel and any solicitor agent) in conjunction with LAO. In practice, therefore, it will be necessary for the investigating officer and, if different, the disclosure officer to attend court as the judge will address most questions concerning the basis on which immunity for material is sought to them.
If the judge grants the PII application, then the prosecution will proceed without the material being disclosed to the defence, but the judge must keep the issue under review throughout the proceedings. If the judge refuses the application, then the usual options for the prosecution are to disclose the material or withdraw the criminal proceedings. In some cases, it may be possible to proceed with some of the charges, or against some defendants but not others. Again, this is a decision for the case team together with LAO.
29. All cases involving PII must be considered by Legal Adviser’s Office to ensure that a consistent approach is taken. LAO must therefore be notified as soon as the disclosure officer identifies any sensitive material which he believes satisfies the tests for disclosure to the defence.
30. A number of categories of material from an investigation may be privileged. The most common example of this is advice of the Legal Advisers Office, solicitor agents and counsel. Other material which records the progress of the investigation, such as 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, will not usually be privileged unless prepared for the purposes of seeking legal advice. They may, if relevant, be sensitive at least in part. For example, the investigation/prosecution report may not be relevant if it simply repeats information about evidence which is already in the prosecution evidence bundle, together with the view of the inspector as to the weight of that evidence. However, even if in some cases it is relevant to schedule it, parts such as the evidence analysis will be considered sensitive. It is therefore important for the disclosure officer to read and evaluate such papers, obtaining legal advice as necessary.
If material is legally privileged it falls outside CPIA and therefore should not be scheduled. However, the disclosure officer should be aware that it exists.
31. If the defence seek to obtain such material you should obtain advice from Legal Adviser’s Office.
32. Some privileged material, for example confidential complaints, must also be included on the schedule of sensitive material.
Revelation of material to the prosecutor
33. 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 on either the non-sensitive or sensitive schedule that may undermine the prosecution or assist the defence. This is done by completing the Disclosure Officers report (Form CPI3) on MEMT and sending it, together with any material listed on the report, to the prosecutor. The disclosure officer’s report should set out the material concerned and the reason why the disclosure officer is of the view that it satisfies the disclosure test. This should include material where there is any doubt as to whether it might reasonably be considered capable of undermining the prosecution case or of assisting the defence. The disclosure officer should not provide the prosecutor with copies of all the unused material, only the items which are identified on the report.
34. The prosecutor then considers the schedules prepared by the disclosure officer, together with any report drawing attention to any material which may undermine the prosecution case or assist the defence.
35. The Code lists particular material which the disclosure officer must provide to the prosecutor. These are:
- 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 prosecution disclosure.
36. 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.
37. 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.
38. 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.