To make this site simpler, we place small data files on your computer known as cookies. Most of our cookies are strictly necessary in order for the website to function correctly and these cookies do not store any of your personal data.

We also allow you to choose whether to allow Google Analytics cookies or not. Google Analytics cookies improve our understanding of how you use the website so we can make sure it meets your needs. If you should choose to accept the Google Analytics cookie, we will still anonymise all data collected.

Click here to find out more on the SFO's privacy policy and use of cookies.

Analytics Cookies

Disclosure

SFO OPERATIONAL HANDBOOK

The SFO Operational Handbook is for internal guidance only and is published on the SFO’s website solely in the interests of transparency. It is not published for the purpose of providing legal advice and should not therefore be relied on as the basis for any legal advice or decision. Some of the content of this document may have been redacted.

Disclosure Part 1 – Introduction

Preliminaries

This section of the Operational Handbook covers unused material handling and disclosure. It:

  • provides operational guidance for SFO case teams and sets out the processes that should be adopted to meet the disclosure obligations imposed by statute, the code and guidelines.
  • is divided into eight parts:

Part 1 Introduction, Law and Definitions

Part 2 Roles and Responsibilities

Part 3 Identification, Retention and Recording of Material

Part 4 Materials Management

Part 5 Reviewing Material and Recording the Product of that Review

Part 6 Compiling Schedules of Sensitive and Non-Sensitive Unused Material

Part 7 The Disclosure Process

Part 8 Public Interest Immunity

All parts are available on the “Disclosure” topic page.

  • applies to criminal investigations that were commenced on or after 4th April 2005. If an investigation started before that date, different rules apply and the disclosure regime as it then was should be applied in consultation with the appropriate Head of Division.

Basic Principles

The process of disclosure involves identifying, retaining and recording the existence of material that may be relevant to the investigation.

Where such material is not expected to form part of the prosecution case then its existence should be recorded on schedules of sensitive material and non-sensitive unused material.

Where any material identified on these schedules might reasonably be considered capable of “undermining the case for the prosecution against the accused or of assisting the case for the accused”[1] then this material should be disclosed to the accused. This is unless an order has been obtained from a court authorising the non-disclosure of the material[2] or it is known that another agency wishes to make such an application.

Contents of Part 1

  • The Law on Disclosure
  • Definitions of Commonly Used Terms
  • The Link between Investigating and Disclosure
  • Applying a Disclosure Strategy – the Disclosure Strategy Document
  • The Consequences of Failures in the Disclosure Process
  • The Requisite Skills, Experience and Knowledge Required of Case Teams

The Law on Disclosure

The current law is set down in:

  • the Criminal Procedure and Investigations Act 1996 (CPIA), as amended
  • the Code of Practice (the CPIA Code of Practice) issued under section 23(i) of the CPIA (last reviewed with effect from 19th March 2015). This is available at https://www.gov.uk/government/publications/criminal-procedure-and-investigations-act-code-of-practice
  • The Criminal Procedure Rules
  • the Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011 the Regulations issued under s12 of the CPIA S.I. 2011 No 209
  • the Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 1997 S.I. 1997 No 2680 – these regulations apply to Northern Ireland

The SFO is bound by the terms of the CPIA according to paragraph 1.1 of the CPIA Code of Practice which provides that:

“Persons other than police officers who are charged with the duty of conducting an investigation as defined in the [CPIA] are to have regard to the relevant provisions of the code, and should take these into account in applying their own operating procedures”.

The CPIA Code of Practice distinguishes disclosure practice in the Crown Court from practice in the magistrates’ courts. Where cited in the Operational Handbook, the CPIA Code of Practice refers to Crown Court Practice unless specifically stated otherwise.

It is important to remember that the applicable statute and codes should always be interpreted in light of relevant case law.

The following guidance also applies:

This section of the Operational Handbook also reflects:

  • the SFO’s implementation of the requirements of the CPIA Code of Practice and AG Guidelines
  • the findings of the Review of Disclosure in Criminal Proceedings 2011 conducted by Gross LJ [See “Review of Disclosure in Criminal Proceedings”]
  • the findings of the “Further Review of Disclosure in Criminal Proceedings: Sanctions for Disclosure Failure 2012” conducted by Gross LJ and Treacy LJ[3]
  • the findings of HM Crown Prosecution Service Inspectorate in its report on Disclosure Handling in the Case of R v Mouncher, published July 2013 (The Mouncher Report)[4]
  • the findings of the Attorney General’s ‘Review of the efficiency and effectiveness of disclosure in the criminal justice system’, published in November 2018[5]
  • relevant case law including R v H and C [2004] 2 A.C. 134, R v Olu & Ors (Nicholas Andreas) [2010] EWCA Crim 2975, R v Boardman (David) [2015] EWCA Crim 175, and R v DS and TS [2015] EWCA Crim 662 and R v R & others [2015] EWCA Crim 1941

Definition of Commonly used Terms

The CPIA Code of Practice discusses and defines a number of concepts which can be found at Chapters 2 and 6 of the CPIA Code of Practice[6]. These should be read in conjunction with this section of the Operational Handbook.

Relevant material

All material that may be relevant to the matters under investigation should be identified, retained and its existence recorded. An investigator (including a non-lawyer case controller) or disclosure officer may seek advice from the prosecutor about whether any particular item of material may be relevant to the investigation[7].

Unused material

This is material that may be relevant to the investigation and has therefore been retained but does not form part of the case for the prosecution against the accused.

Material that may be relevant to the investigation but is unused will be recorded on either the schedule of sensitive material or on the schedule of non-sensitive unused material.

Sensitive material

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.

Sensitive material must be brought to the attention of both the disclosure officer and the prosecutor. The prosecutor will be required to determine whether the material is sensitive, and if it is sensitive, to record the reason why it is sensitive. The existence of sensitive material should be recorded on the schedule of sensitive material along with the reason for believing that the material is sensitive, or in exceptional circumstances where its existence is so sensitive that it cannot be listed, it should be revealed to the prosecutor separately.

In exceptional circumstances, where the disclosure officer considers that material is so sensitive that even recording it on the schedule of sensitive unused material would be inappropriate, this material must be held separately and in accordance with its level of classification. The disclosure officer, the prosecutor, the case controller and the Head of Division must be made aware of that material’s existence at the earliest opportunity[8].  The responsibility for informing the prosecutor, disclosure officer and the case controller of the existence of the material lies with the investigator who knows the details of the sensitive material.  The investigator must ensure that the prosecutor (or a senior prosecutor with sufficient clearance) is able to inspect the material.  This is so that it can be assessed to decide whether it meets the test for disclosure and, if so, whether it needs to be brought before a court to determine whether an order should be granted permitting the non-disclosure of the material to the accused on the grounds of Public Interest Immunity [See “Disclosure Part 8 – Public Interest Immunity”][9].

Disclosure

Disclosure refers to providing the defence with copies of, or access to, any material which might reasonably be considered capable of meeting the test for disclosure.

The disclosure test is met where material:

  • might reasonably be considered as capable of undermining the case for the prosecution against the accused; or
  • might reasonably be considered as capable of assisting the case for the accused[10]

As stated in paragraph 5 of the AG Guidelines:

“Prosecutors will only be expected to anticipate what material might undermine their case or strengthen the defence in light of information available at the time of the disclosure decision, and they may take into account information revealed during questioning.”

The AG Guidelines provide assistance in identifying material that meets with the test for disclosure:

“6. In deciding whether material satisfies the disclosure test, consideration should be given amongst other things to:

a) the use that might be made of it in cross-examination;

b) its capacity to support submissions that could lead to:

the exclusion of evidence;

a stay of proceedings, where the material is required to allow a proper application to be made;

a court or tribunal finding that any public authority had acted incompatibly with the accused’s rights under the ECHR;

c) its capacity to suggest an explanation or partial explanation of the accused’s actions;

d) the capacity of the material to have a bearing on scientific or medical evidence in the case.

It should also be borne in mind that while items of material viewed in isolation may not be reasonably considered to be capable of undermining the prosecution case or assisting the accused, several items together can have that effect.”

The prosecutor must also consider disclosing in the interests of justice any material that is relevant to sentence (for example, information which might mitigate the seriousness of the offence or assist the accused in laying some blame upon a co-accused or another person)[11].

Revelation

This refers to a disclosure officer alerting the prosecutor to the existence of relevant material that he or she has become aware of and/or has been retained in the investigation. It is important to remember that revelation to the prosecutor does not mean automatic disclosure to the defence[12].

Revelation to the prosecutor is done through compiling and agreeing the schedules of sensitive material, schedules of non-sensitive unused material and through recording the disclosure decisions made during the course of the investigation on the Disclosure Decision Log.

The schedules of sensitive material and non-sensitive unused material are used by the prosecutor as the framework for complying with the prosecutor’s obligations under the CPIA and the CPIA Code of Practice. The prosecutor will review the schedules to identify material that should be examined to determine whether it should be disclosed to the defence.

The schedule of sensitive material will not be provided to the defence. The schedule of non-sensitive unused material will be provided to the defence, identifying items that are to be disclosed to the defence in addition to copies of the items (or the opportunity to inspect the items) that are disclosed.

The link between disclosure and investigation

At the heart of every investigation is the case team’s duty to pursue all reasonable lines of enquiry whether this points towards or away from the suspect or accused. What is reasonable in each case will depend on the particular circumstances[13].  The scope of the investigation will be decided by the case controller in consultation as necessary with the Head of Division.

The CPIA and Code determine the extent of the enquiries that should be made, the material that should be retained, and the material that is considered relevant, revealed and, where required, disclosed.

The Code for Crown Prosecutors requires prosecutors to consider whether there is any material held by investigators or material that may be available which could affect the decision to charge a suspect with any crime[14].

The distinction between the material that will form part of the prosecution case against the accused (the used material) and unused material often becomes apparent as the investigation progresses.

The process of making decisions about whether material is relevant and if so, whether it is likely to meet the test for disclosure, must be carried out at the earliest opportunity and proportionate frontloading of disclosure preparation is therefore important[15].

As has been set out in the AG Guidelines:

“10. Disclosure should be conducted in a thinking manner and never reduced to a box-ticking exercise[16]; at all stages of the process, there should be consideration of why the CPIA disclosure regime requires a particular course of action and what should be done to achieve that aim…

  1. Investigators and disclosure officers must be fair and objective and must work together with prosecutors to ensure that disclosure obligations are met. Investigators and disclosure officers should be familiar with the CPIA Code of Practice, in particular their obligations to retain and record relevant material, to review it and to reveal it to the prosecutor.
  2. Whether a case is a summary only matter or a long and complex trial on indictment, it is important that investigators and disclosure officers should approach their duties in a “thinking manner” and not as a box ticking exercise. Where necessary, the reviewing lawyer should be consulted. It is important that investigators and disclosure officers are deployed on cases which are commensurate with their training, skills and experience. The conduct of an investigation provides the foundation for the entire case, and may even impact the conduct of linked cases. It is vital that there is always consideration of disclosure matters at the outset of an investigation, regardless of its size.”

The case team should take the opportunity to identify and assess the merits of proffered defences and should be aware of the extent to which any material might reasonably be considered capable of undermining the case for the prosecution against the accused or assisting the case for the accused. Early and meaningful engagement between the prosecution and defence in this process should be considered and the prosecution have the option to initiate this engagement before charge where appropriate[17]. A safe and successful prosecution requires a dedicated and professional approach to disclosure.

Applying a disclosure strategy: the Disclosure Strategy Document

SFO cases tend to involve large volumes of material that has been obtained from a range of sources. The material obtained during the course of an investigation is often the product of numerous lines of enquiry that have been pursued and this material will be reviewed by the range of members of the case team and others who will be involved during the lifetime of an investigation. For this reason, it is important that a strategy is set at the commencement of the investigation that identifies the reasonable lines of enquiry that point towards or away from a suspect or accused.

This can be included in a Disclosure Strategy Document. The Disclosure Strategy Document provides the framework in which the disclosure exercise will be conducted. It will identify the lines of enquiry that are to be pursued, how material will be retained and managed, the scope of the review of the material, the matters to be considered as part of that review and endeavour to identify the disclosure issues that will arise in relation to the case and identify how those issues will be addressed.

The Disclosure Strategy Document should be drafted by the case controller in consultation with the disclosure officer. Where the case controller is not the prosecutor, the prosecutor should be consulted on the drafting of the disclosure strategy.  It should be compiled at the start of the investigation. It is a living document and should reflect changes in the disclosure strategy during the lifetime of a case.

The Disclosure Strategy Document will be referred to by investigators and disclosure officers to determine what should be considered when reviewing material. It will also provide an assurance function for prosecutors and Heads of Division.

The Disclosure Strategy Document is a separate document from the Disclosure Management Document. The Disclosure Strategy Document is a forward looking document identifying how the disclosure obligations will be complied with in relation to the case. It is not created for circulation outside the case team and prosecution advocate(s); however, it should be drafted on the basis that its disclosure to the defence and court may be necessary.

The Disclosure Management Document is a document that is compiled and provided to the defence after charge and provides a narrative account of how the disclosure obligations have been met (for the entries on the Disclosure Management Document see the “Disclosure Part 6” topic.

Consequences of failure in the disclosure process

Investigators and disclosure officers must be fair and objective. They must work together with prosecutors to ensure that disclosure obligations are met.  A failure by the prosecutor or the case team to comply with their respective obligations under the CPIA or the CPIA Code of Practice may have one or more of the following consequences:

  • the case may not proceed
  • the court may decide to exclude evidence because of a breach of the CPIA or Code, and the accused may be acquitted as a result
  • the accused may raise a successful abuse of process argument at the trial
  • the Appellate Courts may find that a conviction is unsafe on account of a breach of the CPIA or Code
  • trial dates may be adjourned with consequences for witnesses and case management
  • the accused may be released on bail as the prosecutor may be unable to argue for an extension of the custody time limits [See the “Custody Time Limits” topic]
  • the accused may be released from the duty to make defence disclosure
  • costs [See the “Costs” chapter] may be awarded against the prosecution for wasted expenditure if disclosure is delayed or mishandled.

It is therefore important to ensure that the duties imposed by the CPIA and the CPIA Code of Practice are scrupulously observed. If the prosecutor is satisfied that a fair trial cannot take place because of a failure to make proper disclosure, which cannot be remedied by measures such as by making formal admissions, amending the charges, or presenting the case in a different way so as to ensure fairness, or that the case will not be remedied by such measures, then the prosecutor must not continue with the case.

The proper application of the provisions of the CPIA by the prosecution team will ensure that only material required to be disclosed by the CPIA is disclosed. There is no place in law or otherwise for ‘blanket’ disclosure – sometimes referred to as ‘providing the defence with the keys to the warehouse’. Such practice leads to inconsistency and uncertainty, unnecessary work, and unnecessary costs to the prosecution, defence and public funds.

Requisite skills, experience and knowledge of the case teams

Central to the discharging of disclosure obligations is the SFO’s requirement that each member of a case team has the requisite skills, knowledge, competence and experience to discharge his or her disclosure obligations. To discharge that requirement each individual member of the team is personally responsible for ensuring that they understand the duties and obligations imposed on the SFO in relation to disclosure and that each member of the case team, both individually and together as a team, are collectively responsible to observe those obligations fully throughout the lifetime of each investigation and prosecution.

In addition case team members must ensure they have sufficient understanding of:

  • the requirements imposed by this chapter
  • the way that disclosure is being implemented in relation to the case

It remains the responsibility of case controllers to satisfy themselves that each member of the case team fulfils the two criteria above.

[1] Criminal Procedure and Investigations Act 1996 section 3(1)(a)

[2] See Part 8: Public Interest Immunity

[3] Further Review of Disclosure in Criminal Proceedings 2012 https://www.judiciary.gov.uk/publications/further-review-disclosure-criminal-proceedings-november-2012/

[4] Review into Disclosure Handling in the Case of R v Mouncher and Others. Available at http://www.justiceinspectorates.gov.uk/hmcpsi/inspections/disclosure-handling-in-r-v-mouncher-and-others-south-wales/

[5] See AG’s ‘Review of the efficiency and effectiveness of disclosure in the criminal justice system’ November 2018

[6] See https://www.gov.uk/government/publications/criminal-procedure-and-investigations-act-code-of-practice

[7] The CPIA Code of Practice, paragraph 6.1

[8] The CPIA Code of Practice, paragraph 6.16

[9] The CPIA Code of Practice, paragraph 6.17

[10] Section 3(1)(a) of the CPIA

[11] AG Guidelines, paragraph 71

[12] CPS Disclosure Manual, Chapter 18.2 – see http://www.cps.gov.uk/legal/d_to_g/disclosure_manual/

[13] The CPIA Code of Practice, paragraph 3.5

[14] Link to 2018 Code https://www.cps.gov.uk/publication/code-crown-prosecutors

[15] Link to 2018 AG Review https://www.gov.uk/government/publications/review-of-the-efficiency-and-effectiveness-of-disclosure-in-the-criminal-justice-system

[16] R v Olu, Wilson & Brooks [2010] EWCA Crim 2975 at paragraph 42 as repeated in the AG Guidelines paragraph 10

[17] Link to 2018 AG Review https://www.gov.uk/government/publications/review-of-the-efficiency-and-effectiveness-of-disclosure-in-the-criminal-justice-system

Version OGW 2, Published July 2019 © Crown Copyright, 2020.

This information is licensed under the Open Government Licence v3.0. To view this licence, visit http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/ or write to the Information Policy Team, The National Archives, Kew, Richmond, Surrey, TW9 4DU.

Any enquiries regarding this publication should be sent to the Serious Fraud Office, 2-4 Cockspur Street SW1Y 5BS email: information.officer@sfo.gov.uk


Disclosure Part 2 – Roles and Responsibilities

Preliminaries

The SFO has a combined (‘Roskill’) model for the investigation and prosecution of serious or complex fraud, including bribery and corruption. Cases are conducted from investigation to prosecution stage by teams which include lawyers and investigators.  Each team is led by a case controller who is normally either an investigator or a lawyer.

The investigation and prosecution of criminal cases require that essential disclosure functions are separated, most particularly into the distinct roles required to be carried out at all stages by a disclosure officer and a separate prosecutor. The separation of such functions must be reflected in the composition of the Case Teams.

Contents of Part 2

Part 2 of the SFO’s Operational Handbook on disclosure sets out the roles and responsibilities carried out by each member of the SFO’s case team, covering the role of the:

  • investigator
  • disclosure officer(s)
  • deputy disclosure officer(s) including for the proceeds of crime division
  • case controller
  • prosecutor
  • head of division
  • prosecution advocate
  • disclosure counsel

Part 2 also covers the:

  • importance of communication
  • record keeping
  • combination and separation of specific roles
  • delegation

Investigators

This includes any member of the case team who is involved in the conduct of the investigation. All investigators have a responsibility for carrying out the duties imposed on them under laws governing disclosure as outlined in this operational guidance.  In particular, they have responsibility for:

  • pursuing all reasonable lines of enquiry, whether these point towards or away from a suspect[1]
  • the recording and retention of relevant information obtained, discovered or generated by them during the course of the investigation[2]
  • notifying the disclosure officer(s) of the existence and whereabouts of material that has not been retained by them
  • personally revealing to the disclosure officer(s) and prosecutor any relevant misconduct relating to themselves.

As has been set out in the Attorney General’s Guidelines on Disclosure for investigators, prosecutors and defence practitioners (2013) (AG Guidelines),

“17.   A fair investigation involves the pursuit of material following all reasonable lines of enquiry, whether they point towards or away from the suspect. What is ‘reasonable’ will depend on the context of the case. A fair investigation does not mean an endless investigation: investigators and disclosure officers must give thought to defining, and thereby limiting, the scope of their investigations, seeking the guidance of the prosecutor where appropriate.”

Disclosure Officer

The Criminal Prosecution and Investigations Act 1996 (CPIA) and its code of practice (CPIA Code of Practice) create a distinct role for the disclosure officer (including the deputy disclosure officer) giving him specific responsibility for:

  • examining material, revealing it to the prosecutor, disclosing it to the accused when appropriate and certifying to the prosecutor that action has been taken in accordance with the CPIA Code of Practice
  • creating schedules (both non-sensitive and sensitive) of relevant unused material that has been identified and retained during the investigation, and submitting the schedules to the prosecutor (together with copies of certain categories of material)
  • recording disclosure decisions in the case Disclosure Decision Log and keeping the Disclosure Decision Log up-to-date.

The disclosure officer should be a member of the case team with sufficient skill and authority, commensurate with the complexity of the investigation, to discharge the disclosure functions effectively. The disclosure officer need not be a lawyer; the disclosure officer may be an investigator on the case team.

The disclosure officer is responsible for scheduling the material on schedules of sensitive material and non-sensitive unused material. It is by this means that the material is revealed to the prosecutor.

See “ID104 Disclosure Officer Basic Checklist” for more guidance about what needs to be considered by the Disclosure Officer.

Deputy Disclosure Officer(s)

The disclosure officer may be assisted by one or more deputy disclosure officers (DDOs), who may fulfil any function that would be carried out by the disclosure officer and must also have the skills necessary to carry out the role effectively.[3] 

The AG Guidelines state that there may be a number of disclosure officers on a case. In SFO cases there should only be one disclosure officer with others becoming deputy disclosure officers. However, in any rare case where there is a genuine need for more than one disclosure officer, then the case controller should appoint one of them as lead disclosure officer. The lead disclosure officer will be the focus of all enquiries from other disclosure officers as well as the deputy disclosure officers and investigators.  The lead disclosure officer has responsibility, along with the case controller, to ensure that the investigators have complied with their disclosure obligations.[4]

Case Controller

This is the person in charge of the investigation and therefore responsible for leading and directing the investigation conducted by the SFO. The case controller can be a lawyer or investigator. The case controller has the special responsibility for ensuring that the duties under the CPIA Code of Practice are carried out by all those involved in the investigation, and for ensuring that all reasonable lines of enquiries are pursued, irrespective of whether the line of enquiry points towards or away from a suspect.[5] A case controller’s various responsibilities are to:

  • account for any general policies followed in the investigation
  • ensure that all reasonable lines of enquiry are pursued
  • ensure that proper procedures are in place for recording and retention of material obtained in the course of the investigation
  • appoint the disclosure officer and ensure that the person appointed is given sufficient authority within the team to make sure that the disclosure obligations are met
  • ensure, where there is more than one disclosure officer, that one is appointed as the lead disclosure officer who is the focus for enquiries and who is responsible for ensuring that the investigators’ disclosure obligations are complied with[6]
  • ensure that an individual is not appointed as disclosure officer, or allowed to continue in that role, if that is likely to result in a conflict of interest.
  • ensure that tasks delegated to other persons participating in the investigation under arrangements for joint investigations have been carried out in accordance with the requirements of the CPIA Code of Practice
  • ensure that material which may be relevant to an investigation is retained and recorded in a durable and retrievable form[7]
  • ensure that all retained material is either made available to the disclosure officer, or in exceptional circumstances revealed directly to the prosecutor[8]
  • ensure that all practicable steps are taken to recover any material that was inspected and not retained, if as a result of developments in the case it later becomes relevant
  • ensure that the unused material is properly scheduled as sensitive or non-sensitive material
  • ensure that there is provision for handling legal professional privilege (LPP) material [See the “LPP” topic].

Where the case controller believes that other persons may be in possession of material that may be relevant to the investigation, and if this material has not been obtained, the disclosure officer should be asked to inform the holders of the material of the existence of the investigation and invite them to retain the material in case they receive a request to review the material for relevance and for disclosure. The case controller is not required to make speculative enquiries of other persons; there must be some reason to believe that they may have relevant material.  That reason may come from information provided to the case team by the accused or from other enquiries made or from some other source.[9]

The case controller must ensure that a disclosure strategy document is produced (see “Appling a Disclosure Strategy” in the “Disclosure Part 1” topic for an outline of what is included in a disclosure strategy document).

The Prosecutor

This is the person who is responsible for the conduct, on behalf of the SFO, of the criminal proceedings resulting from a specific criminal investigation.[10]  This role must be filled by a lawyer.  The AG Guidelines describe what the role is

“28. Prosecutors are responsible for making proper disclosure in consultation with the disclosure officer. The duty of disclosure is a continuing one and disclosure should be kept under review. In addition, prosecutors should ensure that advocates in court are properly instructed as to disclosure issues. Prosecutors must also be alert to the need to provide advice to, and where necessary probe actions taken by, disclosure officers to ensure that disclosure obligations are met. There should be no aspects of an investigation about which prosecutors are unable to ask probing questions.

“29. Prosecutors must review schedules prepared by disclosure officers thoroughly and must be alert to the possibility that relevant material may exist which has not been revealed to them or material included which should not have been. If no schedules have been provided, or there are apparent omissions from the schedules, or documents or other items are inadequately described or are unclear, the prosecutor must at once take action to obtain properly completed schedules. Likewise schedules should be returned for amendment if irrelevant items are included. If prosecutors remain dissatisfied with the quality or content of the schedules they must raise the matter with a senior investigator to resolve the matter satisfactorily.

“30. Where prosecutors have reason to believe that the disclosure officer has not discharged the obligation in paragraph 21 to inspect, view, listen to or search relevant material, they must at once raise the matter with the disclosure officer and request that it be done. Where appropriate the matter should be raised with the officer in the case or a senior officer.”

However, the AG Guidelines also state that:

“13. The centrality of the reviewing lawyer does not mean that he or she has to do all the work personally; on the contrary, it will often mean effective delegation. Where the conduct of a prosecution is assigned to more than one prosecutor, steps must be taken to ensure that all involved in the case properly record their decisions. Subsequent prosecutors must be able to see and understand previous disclosure decisions before carrying out their continuous review function.”

Following the disclosure officer signing the schedules of sensitive and non-sensitive unused material the prosecutor must review them thoroughly and demonstrate this by endorsing them and recording that this has been done. The prosecutor must serve the schedules of non-sensitive unused material on the defence under cover of a letter that constitutes a Notice under section 3 of the CPIA; and a disclosure management document must be produced and served on the defence and court which explains the process which has been adopted for managing disclosure. The quality of the disclosure management document is very important and it must be reviewed regularly. Further information on disclosure management documents is provided in the “Disclosure Part 6” topic.

The prosecutor must be of a grade as senior as or more senior than the Disclosure Officer (or the lead Disclosure Officer) assigned to the case.

Heads of Division

The Heads of Division are responsible for ensuring that prosecutors, disclosure officers and deputy disclosure officers have been adequately trained and have sufficient skills and authority, commensurate with the complexity of the investigation, to discharge their functions effectively. They must also ensure that proper records are kept and that the disclosure management document is up to date.  They should ensure that proper scheduling has taken place and the items on the schedule are numbered sequentially and there are both sensitive and non-sensitive schedules of unused material at the appropriate stages of the case.

Prosecution Advocate

The prosecution advocate plays an essential role in relation to the way that the SFO ensures fairness to the accused in conducting the disclosure exercise. There is a responsibility placed on the prosecution advocate by the AG Guidelines to be fully engaged in the disclosure process [See “Attorney General’s Guidelines”].

Disclosure Counsel

The case controller may appoint counsel specifically to review material as part of the disclosure exercise. As such they become deputy disclosure officers. Responsibility for the disclosure process therefore remains with the disclosure officer and the prosecutor.

The decision as to what meets the test for relevance is a decision to be made by the disclosure officer in consultation with the prosecutor. The decision to make disclosure to the defence is a decision for the prosecutor in consultation with the disclosure officer.  These decisions cannot be delegated.

The importance of communication

SFO case teams can involve a number of investigators, a disclosure officer, deputy disclosure officers (including disclosure counsel) and prosecution counsel. The importance of clear communication between the different participants involved in the disclosure process has been made clear in the AG Guidelines:

11. There will always be a number of participants in prosecutions and investigations: senior investigation officers, disclosure officers, investigation officers, reviewing prosecutors, leading counsel, junior counsel, and sometimes disclosure counsel. Communication within the “prosecution team” is vital to ensure that all matters which could have a bearing on disclosure issues are given sufficient attention by the right person. This is especially so given many reviewing lawyers will be unable to sit behind the trial advocate throughout the trial. In practice, this is likely to mean that a full log of disclosure decisions (with reasons) must be kept on the file and made available as appropriate to the prosecution team.

  1. The role of the reviewing lawyer will be central to ensuring all members of the prosecution team are aware of, and carry out, their duties and role(s). Where this involves counsel or more than one reviewing lawyer, this should be done by giving clear written instructions and record keeping…

 

  1. …Where appropriate, regular case conferences and other meetings should be held to ensure prosecutors are apprised of all relevant developments in investigations. Full records should be kept of such meetings.”

In SFO cases the reviewing lawyer is the designated prosecutor on the case.

Record keeping

The names of each of the members of the case team carrying out each of the roles in the case should be recorded.

If, during the course of the investigation or prosecution, the case controller, the prosecutor or disclosure officer in a case team for any reason no longer has responsibility for the functions falling to them, the Head of Division must ensure that someone else is assigned to the vacant role. That person’s identity must be recorded in the Disclosure Decision Log.

Combination and Separation of Roles

Although the responsibilities are described separately, the roles of investigator, disclosure officer and case controller can be performed by two or three members of the case team. To ensure that all disclosure requirements are met, there should be close consultation between all the members of the case team who are fulfilling these functions.[11] 

Case teams should ensure that there is a separation of responsibilities between the disclosure officer(s) (including any deputy disclosure officers) and the prosecutor. Where a grade 7 lawyer fulfils the role of a disclosure officer or deputy disclosure officer but subsequently becomes the prosecutor in the case, a fresh disclosure officer must be appointed, and this should be recorded in the disclosure decision log.

A case controller who is a lawyer may fulfil the role of prosecutor on the same case.

[1] Criminal Procedure and Investigations Act 1996 (section 23(1)) Code of Practice (CPIA Code of Practice), paragraph 3.5

[2] CPIA Code of Practice, paragraphs 2.1, 4 and 5

[3] CPIA Code of Practice, paragraphs 3.2 and 3.3

[4] AG Guidelines, paragraph 18

[5] CPIA Code of Practice, paragraph 3.5

[6] AG Guidelines, paragraph 18

[7] CPIA Code of Practice, paragraph 3.4

[8] CPIA Code of Practice, paragraph 3.4

[9] CPIA Code of Practice, paragraph 3.6

[10] CPIA Code of Practice, paragraph 2.1

[11] CPIA Code of Practice, paragraph, paragraph 3.1

Version OGW 1, Published February 2018 © Crown Copyright, 2020.

This information is licensed under the Open Government Licence v3.0. To view this licence, visit http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/ or write to the Information Policy Team, The National Archives, Kew, Richmond, Surrey, TW9 4DU.

Any enquiries regarding this publication should be sent to the Serious Fraud Office, 2-4 Cockspur Street SW1Y 5BS email: information.officer@sfo.gov.uk


Disclosure Part 3 – Identification, Retention and Recording of Material

Preliminaries

All reasonable lines of enquiry should be pursued during the course of an investigation, whether these lines of enquiry point towards or away from a suspect.[1] In pursuing such reasonable lines of enquiry it is important that material that may be relevant to the investigation is identified and retained, its existence recorded and that the decisions taken in relation to that material are also recorded.

To comply with our duties under the Criminal Procedure and Investigations Act 1996 Code of Practice (CPIA Code of Practice), all material that fulfils the definition for relevance must either:

  • be used by being served as part of the prosecution case; or
  • be listed on the schedule of non-sensitive unused material (a copy of this schedule is then provided to the defence); or
  • be material which is ‘sensitive’. As such it will not form part of the prosecution case. It should instead be included on a schedule of sensitive material (though for material that is so sensitive that it should not be included on a schedule of sensitive material see the guidance in Part 1). A copy of the schedule of sensitive material should not be provided to the defence.

Contents of Part 3

This part includes:

  • the process of identifying material
  • the requirement to record information
  • the requirement to retain material
  • particular material retention issues, including
    • digital material
    • witnesses’ material
    • material obtained or generated through instructing an expert [See the “Expert Witnesses” chapter]
    • case drive and MS Outlook material
    • material held by other government departments or Crown bodies
    • third party material held within the United Kingdom
    • third party material held within other jurisdictions

Identification of Relevant Material

Material which may be relevant to the investigation is defined in the CPIA Code of Practice as anything that appears to an investigator, or the disclosure officer, or the case controller, to have some bearing on any offence under investigation or any person being investigated or on the surrounding circumstances unless it is incapable of having any impact on the case

The context is that in conducting an investigation, the investigator should pursue all reasonable lines of enquiry, whether these point towards or away from the suspect. What is reasonable in each case will depend on the particular circumstances.

Where a line of enquiry is identified that will be pursued, this should be recorded. Equally, where it is determined that it is not reasonable to pursue a line of enquiry, or that it is only reasonable to pursue a line of enquiry to a limited extent, this should be recorded.

Relevant material may be material created or obtained as part of the investigation, as above, or material in the possession of a third party.

If the case controller, disclosure officer or investigator believes that other persons may be in possession of material that may be relevant to the investigation, and if it has not been obtained as part of an identified reasonable line of enquiry, the case controller or the disclosure officer should inform that other person of the existence of the investigation and ask that the material be retained in case a request is received for its disclosure.[2]  The existence of the material should be recorded in the Disclosure Decision Log by the disclosure officer and the prosecutor and the prosecution advocate(s) should be made aware of the existence of this material.

Case controllers and investigators are not required to make speculative enquiries of other persons; there must be some reason to believe that they may have relevant material. That reason may come from information provided to the case team, either by the accused, from other enquiries made, or from some other source.[3] 

The Duty to Record Information

If material which may be relevant to the investigation consists of information which is not recorded in any form, the case controller should ensure that it is recorded in a durable or retrievable form (whether in writing, on video or audio tape, or on computer disk).[4] 

Where it is not practicable to retain the initial record of information because it forms part of a larger record which is to be destroyed, its contents should be transferred as a true record to a durable and more easily-stored form before destruction.[5] 

Negative information is often relevant to an investigation. Negative information is impossible to define conclusively but it would include, for example, the result of any enquiry which differs from what might have been expected, or which casts doubt on the validity of any other information. If it may be relevant it must be recorded.[6] 

Where information which may be relevant is obtained, it must be recorded at the time it is obtained or as soon as practicable after that time.[7]  The duty to record material is an intrinsic part of the investigation.  This record then becomes material in the case.

The Duty to Retain Material

Investigators must retain material obtained in the course of a criminal investigation which may be relevant to the investigation. Material may be photographed, video recorded, captured digitally or otherwise retained in the form of a copy rather than the original at any time, if:

  • the original is perishable
  • the original was supplied to, rather than generated by, the investigator and is to be returned to its owner
  • or the retention of a copy rather than the original is reasonable in all the circumstances[8]

If the case controller (or prosecutor if different) or disclosure officer becomes aware as a result of developments in the case that material previously examined but not retained (because it was not thought to be relevant) may now be relevant to the investigation, then steps should be taken, wherever practicable to obtain the material or ensure that it is retained for further inspection or for production in court if required.[9]

Copies of the following should be retained by the SFO (or where appropriate, copies obtained from the relevant police authority and retained by the SFO):

  • investigators’ notebooks and Police Officers’ Notebooks or Incident Report Books[10] only insofar as they relate to the investigation (i.e. they contain factual notes of what an officer saw or did, or what s/he was told, but not, for example subjective opinions, analysis, or drafts of reports to superior officers)
  • notes of phone conversations with witnesses and/or any email correspondence with witnesses statements of persons taken or made during the investigation, whether or not they assist the prosecution case, and any exhibits referred to in such statements – “statement” should be interpreted widely to include, for example, affidavits sworn in relevant civil proceedings. This should include final versions of witness statements (and any draft versions, shown to the witness, where the content differs materially from the final version), including any exhibits mentioned (unless these have been returned to their owner on the understanding that they will be produced in court if required)[11]
  • all documents seized, obtained under section 2 Criminal Justice Act 1987, or from abroad, or passed by others to the investigating team (either under statutory powers or voluntarily) including, normally, that portion of a Letter of Request which poses questions to be put to a person together with that person’s replies
  • correspondence relating to the contents of witness statements (e.g. with witnesses or their professional advisers)
  • interview records (written records, or audio or video tapes, of interviews with actual or potential witnesses or suspects),[12] pre-interview disclosure and notes made of any such interviews which are not electronically recorded
  • communications between the case team and experts such as forensic scientists, reports of work carried out by experts and schedules of scientific material prepared by the expert for the case team, for the purposes of criminal proceedings;[13] such retained documentation should include as a minimum:

o   the instructions (in the sense of background information, questions asked and any amendments thereto) given to an expert when commissioned to work – an expert is a person dealing wholly or mainly with matters on which s/he is qualified to give expert evidence, e.g. a forensic scientist or expert accountant

o   any documentary or other record of conclusions reached by the expert (as above) consulted by the investigation team or which are communicated to the investigation team

  • any material casting doubt on the reliability of a witness[14] including responses to PNC checks or matters recorded against a witness by the witness’s professional body
  • documents relating to the defendant’s detention in police custody (other than statutory custody records which remain subject to the regime set out in PACE)
  • any other material the disclosure of which appears to the investigator or prosecutor to be necessary to achieve the just determination of any issue which may reasonably be foreseen to be raised at trial.

The duty to retain material, where it may be relevant to the investigation, also includes the duty to retain material which may satisfy the test for disclosure, such as:

  • information provided by an accused person that indicates an explanation for the offence with which they have been charged or summonsed
  • any material casting doubt on the reliability of a confession
  • any material casting doubt on the reliability of a prosecution witness[15]

The duty to retain material falling into these categories does not extend to items which are purely ancillary to such material and possess no independent significance (for example, duplicate copies of records or reports).[16] 

Particular Material Retention Issues

Digital Material

Before using section 2 powers [See “S2 Powers” chapter] to obtain digital material [See “Digital Material” chapter], investigators should consider the sort of evidence likely to be the subject of interrogation, for relevance and volume. Careful planning of the process of obtaining digital material will focus the review of material for the purposes of disclosure and allow for a more manageable process.

Consideration should be given to whether items holding digital material can be reviewed for relevance on-site where the material is being obtained and copied there if relevant.[17] Where this is done, records should be maintained of the items that have been reviewed and the decisions that were made with regard to seizure and retention.

The Attorney General’s Guidelines on Disclosure (2013), which incorporate the Digital Disclosure Guidelines (2011) at Annex A (AG Guidelines), provide that:

“A14. A computer hard drive, or single item of media, such as a back-up tape, is a single storage entity. This means that if any digital material found on the hard drive or other media can lawfully be seized the computer hard drive or single item of media may, if appropriate, be seized or imaged.  In some circumstances investigators may wish to image specific folders, files or categories of data where it is feasible to do so without seizing the hard drive or other media, or instead of taking an image of all data on the hard drive or other media.  In practice the configuration of most systems means that data may be contained across a number of hard drives and more than one hard drive or item of media may be required in order to access the information sought.” 

For example, through targeting specific sections of a server, or folders that hold digital material within a server, it is possible greatly to reduce the amount of extraneous material that would be subject to later review for relevance.

Care should be taken in targeting specific sections of digital material when carrying out on-site interrogations of material obtained from suspects. By contrast, a more robust approach to obtaining digital material can often be adopted when dealing with third parties: an undertaking can be sought to retain or hold an image of any material not copied but which might cause the investigators to return if they need to conduct a further relevance review.

Please refer to the Operational Handbook [See “Searches” chapter] regarding the obtaining of material under powers provided by section 50 and 51 of the Criminal Justice and Police Act 2001 and the processing of material which may give rise to a claim for Legal Professional Privilege [See “Legal Professional Privilege” chapter].

Witness’s material

It is important that material that has been held by all witnesses that may be relevant to the case is retained and recorded.

The existence of material that is held by a witness (such as a diary), which has been reviewed for relevance but deemed not to be relevant to the matter(s) under investigation, should be recorded. The witness holding the material should be asked to retain the material that was reviewed but not retained, in case it becomes relevant later.

Investigator Case Drive and Outlook Material

The disclosure officer should identify a strategy for reviewing and retaining material that has been generated by the case team that is held in digital form on the case drives or on Microsoft Outlook.

Material Held by Other Government Departments or Other Crown Bodies

Where it appears to the prosecutor, case controller, disclosure officer or investigator that another government department or Crown body has material that may be relevant to an issue in the case, reasonable steps should be taken to identify and consider such material.[18]  Each government department or agency should have a contact for such requests and the Chief Investigator or Head of Strategy & Policy will be able to assist in making contact with the government department or Crown body.  Where it appears to an investigator that such relevant material is held by another government department, this should be brought to the attention of the case controller at the earliest opportunity.

The government department or other body that appears to hold such relevant material should be informed of the nature of the case and of relevant issues in the case in respect of which the department or body might possess material. It should be asked of that government department whether, as a consequence of this information, they do hold such material.[19] 

The AG Guidelines state that one government department’s investigators and prosecutors cannot be held to be in constructive possession of material held by another government department or Crown body. But the SFO must take all reasonable steps to secure access to such relevant material.[20] 

Where, after reasonable steps have been taken to secure access to such material and access is denied to the case controller, then the disclosure officer should consider, in conjunction with the prosecutor, what if any further steps should be taken to obtain the material or inform the defence.[21]  They should reach a decision in consultation with their Head of Division though the final decision is for the prosecutor.

Where material is obtained from another government department or agency, care should be taken to manage that material in accordance with its classification under the official Government Security Classification, ensuring that the material is reviewed by a lawyer with the requisite clearance level. The classification of material can impact on the disclosure process.

Where the classification of material might impact on the disclosure process, a specific strategy should be identified to address this. Such a disclosure strategy should be arrived at through liaising with the relevant government department.

If issues of legal professional privilege (LPP) [See “LPP” chapter] arise in relation to the other government department’s material, the department or agency must be kept informed throughout and given the opportunity to make representations

Should there be a need to make a public interest immunity (PII) [See “PII” chapter] application in relation to sensitive material belonging to another government department, case controllers should initially discuss the matter with their Head of Division. The SFO Head of Strategy & Policy should then be informed, and the relevant government department advised of any issues concerning disclosure. It will then be for the government department concerned to consider whether PII should be claimed, and if so, the basis on which it should be claimed, as the generating department is normally best able to say which public interests the relevant documents touch upon.

Third Party Material – Within the United Kingdom

An investigator, disclosure officer or prosecutor may believe that a third party within the United Kingdom (for example, a local authority, hospital or provider of forensic services) holds material that might be relevant to the prosecution case. The AG Guidelines state that:

“In such cases, investigators, disclosure officers and prosecutors should take reasonable steps to identify, secure and consider material held by any third party where it appears to the investigator, disclosure office or prosecutor that (a) such material exists and (b) that it may be relevant to an issue in the case.”[22]  

This will often require the use of section 2 Powers [See “S2 Powers” chapter].

It may be the case that a general waiver is obtained from the third party as to the use that is made of the material that is obtained. The third party will retain an interest in how that material is used for disclosure purposes. If a general waiver has not been obtained then the third party should be consulted before the material is listed on the schedule of non-sensitive unused material as the third party might consider that the material is sensitive. If material provided by the third party is to be disclosed then the third party might wish to claim PII entailing an application being made to the court for the material to be withheld from disclosure on the grounds of public interest immunity. The third party will be asked to flag the documents or passages which they are unwilling to disclose voluntarily without a Judicial Order and may wish to be separately represented.

Third Party Material – Outside of the United Kingdom

The Attorney General’s Guidance on Digital Stored Material provides the following additional guidance in relation to the obligation to obtain and retain relevant material held by third parties overseas:

59.     The obligations under the CPIA Code to pursue all reasonable lines of enquiry apply to material held overseas.

  1. Where it appears that there is relevant material, the prosecutor must take reasonable steps to obtain it, either informally or making use of the powers contained in the Crime (International Co-operation) Act 2003 and any EU and international conventions. See CPS Guidance ‘Obtaining Evidence and Information from Abroad’.
  2. There may be cases where a foreign state or a foreign court refuses to make the material available to the investigator or prosecutor. There may be other cases where the foreign state, though willing to show the material to investigators, will not allow the material to be copied or otherwise made available and the courts of the foreign state will not order its provision.
  3. It is for these reasons that there is no absolute duty on the prosecutor to disclose relevant material held overseas by entities not subject to the jurisdiction of the courts in England and Wales. However consideration should be given to whether the type of material believed to be held can be provided to the defence.
  4. The obligation on the investigator and prosecutor under the CPIA is to take reasonable steps. Where investigators are allowed to examine files of a foreign state but are not allowed to take copies or notes or list the documents held, there is no breach by the prosecution in its duty of disclosure by reason of its failure to obtain such material, provided reasonable steps have been taken to try and obtain the material. Prosecutors have a margin of consideration as to what steps are appropriate in the particular case but prosecutors must be alive to their duties and there may be some circumstances where these duties cannot be met. Whether the prosecutor has taken reasonable steps is for the court to determine in each case if the matter is raised.
  5. In these circumstances it is important that the position is clearly seout in writing so that the court and the defence know what the position is. Investigators and prosecutors must record and explain the situation and set out, insofar as they are permitted by the foreign state, such information as they can and the steps they have take.”

Material obtained or generated through instructing an Expert

All Expert Reports other than the Final Report should be identified as Drafts, making it clear that they do not represent the Final Report. Every Expert Draft Report should carry a statement which sets out:

 

  • the questions to which it is responding
  • the current stage of their investigation
  • where possible, the areas where further information would be needed to reach a final view, or avenues which have been dismissed and the reason for that dismissal

Experts are required to retain any notes used in the preparation of a Draft Report which contain primary facts not already recorded elsewhere. This would include any notes relating to preliminary conclusions. Notes of speculative thinking should also be retained and, together with notes relating to preliminary conclusions and any other related notes, passed to the investigator, as it is material generated in the course of the investigation.[23] 

[1] CPIA Code of Practice, paragraph 3.5

[2] CPIA Code of Practice, paragraph 3.6

[3] CPIA Code of Practice, paragraph 3. 6

[4] CPIA Code of Practice, paragraph 4.1

[5] CPIA Code of Practice, paragraph 4.2

[6] CPIA Code of Practice, paragraph 4.3

[7] CPIA Code of Practice, paragraph 4.4

[8] CPIA Code of Practice, paragraph 5.1

[9] CPIA Code of Practice, paragraph 5.3

[10] CPIA Code of Practice, paragraph 5.4

[11] CPIA Code of Practice, paragraph 5.4

[12] CPIA Code of Practice, paragraph 5.4

[13] CPIA Code of Practice, paragraph 5.4

[14] CPIA Code of Practice, paragraph 5.4

[15] CPIA Code of Practice, paragraph 5.5

[16] CPIA Code of Practice, paragraph 5.6

[17] AG Guidelines,) paragraph A12

[18] AG Guidelines, paragraph 53

[19] AG Guidelines, paragraph 53

[20] AG Guidelines, paragraph 54

[21] AG Guidelines, paragraph 55

[22] AG Guidelines, paragraph 56

[23] See the relevant Criminal Procedure Rules

Version OGW 1, Published February 2018 © Crown Copyright, 2020.

This information is licensed under the Open Government Licence v3.0. To view this licence, visit http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/ or write to the Information Policy Team, The National Archives, Kew, Richmond, Surrey, TW9 4DU.

Any enquiries regarding this publication should be sent to the Serious Fraud Office, 2-4 Cockspur Street SW1Y 5BS email: information.officer@sfo.gov.uk


Disclosure Part 4 – Materials Management

Preliminaries

Each case that the SFO deals with involves large volumes of material. In order to meet with the requirements of the Criminal Procedure and Investigations Act 1996 (CPIA) whilst dealing with large volumes of material, SFO cases require:

  • the careful management and processing of case material
  • the careful recording of the existence of the material

Contents of Part 4

  • How material should be processed
  • Tracking whether material has been processed for the purposes of a disclosure review
  • Particular material management issues, including
    • material that may be the subject of Legal Professional Privilege (LPP)
    • digital material

How material should be processed

All material that may be relevant to the investigation (or where appropriate copies of that material) and has been obtained by the SFO should be bagged, sealed and booked in with Materials Management (MM). Ideally each bag should contain no more than a lever arch file of material or its equivalent.

This process of booking material in with MM assists in identifying the full volume of material that is required to be reviewed for the purposes of disclosure. It also provides the foundation for auditing that review and assessing the progress of that review.

This requirement encompasses material generated by case teams as well as material sourced from outside the SFO. Therefore original relevant material or, where appropriate copies of such material, held by the case teams or in archive should be bagged, sealed and registered with MM (unless the original or copy of the item is already held by MM).

Where material forms part of working documents being used by investigators or disclosure officers, it is acceptable to copy it and book it in with MM. This would apply, for example, to investigator notebooks which are still being used at the time that the disclosure exercise is being conducted.

There is no need, however, to record the existence of precise duplicates of items. For example, there is no need to process working copies of items printed from the Autonomy Digital Review System (DRS) unless the duplicate item has some independent relevance. Such relevance may arise, for example, where the duplicate item formed part of an interview pack, or where it has been annotated or amended in any way.

Care should be taken to ensure that sensitive material is identified, including sensitive material held within working papers and within investigator notebooks.

Tracking whether material has been processed for the purposes of a Disclosure Review

It is the duty of the disclosure officer to have a process in place to ensure that all material obtained as part of the investigation has been reviewed for relevance.

The disclosure officer is responsible for ensuring that all digital material has been processed by the Autonomy Document Review System Support Team (DRS Support Team) or retain a record of why there is a good reason not to process such material.

The decisions made in processing material (whether hardcopy or digital) should be recorded on the Disclosure Decision Log or on a document attached to or referenced in the Disclosure Decision Log.

It is likely that hard copy material obtained by the case team through powers provided under section 2 of the CJA 1987 will be relevant to the investigation.

Where hard copy material is deemed non-relevant, it should be considered for return to its source. Where the material deemed non-relevant forms part of a larger unit, for example, where only part of a lever arch file is deemed non-relevant, the presumption should be that such material will be retained.  Only if the whole unit of material is deemed non-relevant to the matters under investigation should consideration be given to its return.

Where, following a full review, it is determined that specific material should be returned to the source, that decision should be fully recorded in the Disclosure Decision Log. As a precaution, a request should be made to the holders of the returned material to retain it until the conclusion of the case. [See “Review, Retention and Disposal Policy”].

Particular material management issues: material that may be the subject of Legal Professional Privilege (“LPP”)

[See “LPP” topic]

No material may be seized which an investigator has reasonable grounds for believing is subject to legal professional privilege.[1]  Material may be seized under powers provided for by the Criminal Justice and Police Act 2001 where in the execution of a search warrant it is not reasonably practicable to separate material that is LPP from the material that is not LPP.[2]  Where the material is voluminous then search terms criteria including algorithms can be utilised to identify the material that should be reviewed by independent counsel to determine privilege; with the search criteria being applied to the material by the DRS Support Team.[3]

All LPP material or material that is suspected to be LPP must be kept separately from non-LPP material. Hard copy material that is suspected to be LPP must be sealed within a blue bag until it has been confirmed as not being the subject of LPP.[4] Material that is suspected as being LPP should be quarantined immediately and referred to external independent counsel for review.[5]

The existence of possible LPP material should be brought to the attention of both the disclosure officer and the prosecutor.

It is essential that anyone dealing with LPP material:

  • maintains proper records showing the way that the material has been handled and those who have access to the material;
  • records the decisions made in relation to that material.[6]

The independent lawyer must not be instructed to conduct a relevance review as they will not be sufficiently well-versed in the case and it may undermine their role as independent counsel. If any or all of the material is not considered potentially subject to LPP by the independent counsel, the material should be released back to the disclosure officer to arrange for the relevance review to be conducted.

For guidance on identifying material that potentially gives rise to issues of LPP please refer to the Operational Handbook.

Particular Material Management Issues – Digital Material

It is essential that all case material that is obtained in digital form is clearly identified at the point that it is registered with MM. When the digital material is registered with MM, its existence should be brought to the attention of the disclosure officer, the Digital Forensic Unit (DFU) and the DRS Support Team as soon as it is reasonably practicable to do so.

Processing Digital Material

The procedures adopted by the DFU and DRS Support Team meet with the requirements of paragraph A8 of the AG Digital Disclosure Guidelines in that:

  • no action taken by investigators or their agents should change data held on a computer or storage media which may subsequently be relied upon in court
  • in circumstances where a person finds it necessary to access original data held on computer or storage media, that person must be competent to do so and to give evidence explaining the relevance and implications of his or her actions
  • an audit trail or other record of all processes applied to computer-based digital evidence should be created and preserved. An independent third party should be able to examine those processes
  • the person in charge of the investigation has overall responsibility for ensuring that the law and these principles are followed.

A Disclosure Decision Log entry should reflect the instructions given to the DFU and the DRS Team covering the following:

  • whether DFU were instructed to obtain a full image of the original item
  • whether all user data files contained on the image were to be ingested onto the Autonomy DRS and, if not, the extent of the user data files that have been ingested and the reason for the limited ingestion
  • whether the DRS Team were instructed to release all user data files to the case team and, if not, the extent and reasons for the limited release
  • whether the user data files might contain material that is the subject of Legal Professional Privilege and the measures taken to address this.

In certain instances (for example: where the date range or the file-types of relevant material can be confidently stated) it may be appropriate for the DRS Support Team to be asked by a case controller to release only a limited portion of the ingested user data files to the case team’s Autonomy DRS by applying search criteria to the material. This decision and its justification must be recorded in the Disclosure Decision Log. If the parameters of the investigation require broadening at a later date, the disclosure officer, in conjunction with the case controller, must reconsider whether a broader range of the ingested user data files are required to be released to the case team by the application of less restrictive search criteria.

[1] Attorney General’s Guidelines – Digital Disclosure, paragraph A9 & A28

[2] Attorney General’s Guidelines – Digital Disclosure, paragraph A29

[3] Attorney General’s Guidelines – Digital Disclosure, paragraph A32

[4] Attorney General’s Guidelines – Digital Disclosure, paragraph A30

[5] Attorney General’s Guidelines – Digital Disclosure, paragraph A31

[6] Attorney General’s Guidelines – Digital Disclosure, paragraph A33

Version OGW 1, Published February 2018 © Crown Copyright, 2020.

This information is licensed under the Open Government Licence v3.0. To view this licence, visit http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/ or write to the Information Policy Team, The National Archives, Kew, Richmond, Surrey, TW9 4DU.

Any enquiries regarding this publication should be sent to the Serious Fraud Office, 2-4 Cockspur Street SW1Y 5BS email: information.officer@sfo.gov.uk


Disclosure Part 5 – Reviewing Material and Recording the Review

Preliminaries

Part 5 of the SFO’s Operational Handbook on disclosure sets out the process by which material should be reviewed for the purposes of disclosure, and the records that should be maintained in conducting that review.

This necessarily involves substantial cross-reference to the Attorney General’s guidelines on disclosure for investigators, prosecutors and defence practitioners 2013 (AG Guidelines[1]), which addresses these issues in detail.

Contents of Part 5

Part 5 of the SFO’s Operational Handbook on disclosure covers the following:

  • Nature and extent of the review
  • Reviewing hard copy material
  • When to use search criteria
  • The use of search criteria
  • Records that should be maintained when using search criteria
  • Review of material: Digital Review System (DRS)
  • Describing material
  • Duties in relation to descriptions

Nature and the Extent of the Review

In general, disclosure officers should adopt a systematic approach to the review of material for the purposes of disclosure. This systematic approach should reflect the source and nature of the material that is the subject of the review.

The AG Guidelines make clear the nature and extent of the duty imposed on disclosure officers in reviewing material obtained during the course of the investigation, as follows.

“21.     Disclosure officers (or their deputies) must inspect, view, listen to or search all relevant material that has been retained by the investigator and the disclosure officer must provide a personal declaration to the effect that this task has been undertaken. In some cases, a detailed examination of all material seized may be required. In others, however, a detailed examination of every item of material seized would be virtually impossible.”

As such, the duty is to identify and review all material that meets the test for relevance in relation to the case. The process used for carrying out the review depends on a number of factors, including whether the material is hard copy scanned onto the database, or material which was obtained in digital form.,

Reviewing Scanned Hard Copy Material

Material which is obtained in hard copy then subsequently scanned onto the DRS can then be treated as digitally stored material for the purposes of the AG Guidelines Annex (Digital Disclosure[2]) which provide as follows:

“A6.  Digital material falls into two categories: the first category is material which is created natively within an electronic environment (e.g. email, office files, system files, digital photographs, audio etc.); the second category is material which has been digitised from an analogue form (e.g. scanned copy of a document, scanned photograph, a faxed document).  Irrespective of the way in which technology changes, the categorisation of digital material will remain the same.”

In determining the extent to which scanned material should be reviewed, and the process to be used, certain general factors should be taken into consideration:

  • hard copy material is usually obtained and retained in small units, normally no larger than one lever arch file, often suitable for whole item review, rather than the use of search criteria
  • hard copy material obtained during the search of a property under section 2(4) of the CJA 1987 has been obtained because it is thought relevant to the investigation
  • hard copy material obtained in response to a Notice served under section 2(3) of the CJA 1987 has been identified by the recipient of the Notice as responsive to the terms of the Notice. It is likely that such material is, therefore, relevant to the matters under investigation (unless from further review the material is deemed to be non-relevant)
  • the limitations of optical character recognition software (OCR) used for searches across the scanned material on the DRS.

AG Guidelines allow that search criteria can be used for scanned hard copy material, as described below, but this should not be the only means of conducting a hard copy disclosure review.

When to Use Search Criteria

The AG Guidelines Annex (Digital Disclosure) explains the circumstances under which search criteria may be used to examine digitally stored material, as follows.

“A39. Where digital material is examined, the extent and manner of inspecting, viewing or listening will depend on the nature of the material and its form.

A40.    It is important for investigators and prosecutors to remember that the duty under the CPIA Code of Practice is to “pursue all reasonable lines of enquiry including those that point away from the suspect”. Lines of enquiry, of whatever kind, should be pursued only if they are reasonable in the context of the individual case. It is not the duty of the prosecution to comb through all the material in its possession – e.g. every word or byte of computer material – on the look out for anything which might conceivably or speculatively assist the defence. The duty of the prosecution is to disclose material which might reasonably be considered capable of undermining its case or assisting the case for the accused which they become aware of, or to which their attention is drawn.

A41.    In some cases the sift may be conducted by an investigator/disclosure officer manually assessing the content of the computer or other digital material from its directory and determining which files are relevant and should be retained for evidence or unused material.

A42.    In other cases such an approach may not be feasible. Where there is an enormous volume of material it is perfectly proper for the investigator/disclosure officer to search it by sample, key words, or other appropriate search tools or analytical techniques to locate relevant passages, phrases and identifiers.”

It is particularly important to consider the use of search tools and analytic techniques in cases where there are vast volumes of electronic material. The prosecution is not required to do the impossible nor should the duty of giving initial disclosure be rendered incapable of fulfilment through the physical impossibility of reading and scheduling every item. CPIA is prescriptive of the result, not the method; flexibility is critical and common sense must be applied in developing strategies and analytical techniques to search data, a record of which must be kept.[3]

The Use of Search Terms

The AG Guidelines Annex (Digital Disclosure) explain in general terms how search terms may be used to review material, as follows.

“A43. In cases involving very large quantities of data, the person in charge of the investigation will develop a strategy setting out how the material should be analysed or searched to identify categories of data. Where search tools are used to examine digital material it will usually be appropriate to provide the accused and his or her legal representative with a copy of reasonable search terms used, or to be used, and invite them to suggest any further reasonable search terms. If search terms are suggested which the investigator or prosecutor believes will not be productive – for example because of the use of common words that are likely to identify a mass of irrelevant material, the investigator or prosecutor is entitled to open a dialogue with the defence representative with a view to agreeing sensible refinements. The purpose of this dialogue is to ensure that reasonable and proportionate searches can be carried out.

A44.  It may be necessary to carry out sampling and searches on more than one occasion, especially as there is a duty on the prosecutor to keep duties of disclosure under review. To comply with this duty it may be appropriate (and should be considered) where further evidence or unused material is obtained in the course of the investigation; the defence statement is served on the prosecutor; the defendant makes an application under section 8 of the CPIA for disclosure; or the defendant requests that further sampling or searches be carried out (provided it is a reasonable line of enquiry).”

Records that should be maintained when Using Search Criteria

The Attorney General’s Guidelines Annex (Digital Disclosure) set out the nature of the records that are required to be kept of the search criteria that are applied in interrogating digital material.

“A46.  In cases involving very large quantities of data where the person in charge of the investigation has developed a strategy setting out how the material should be analysed or searched to identify categories of data, a record should be made of the strategy and the analytical techniques used to search the data. The record should include details of the person who has carried out the process and the date and time it was carried out. In such cases the strategy should record the reasons why certain categories have been searched for (such as names, companies, dates etc)

A47. In any case it is important that any searching or analytical processing of digital material, as well as the data identified by that process, is properly recorded. So far as practicable, what is required is a record of the terms of the searches or processing that has been carried out. This means that in principle the following details may be recorded:

  1. A record of all searches carried out, including the date of each search and the person(s) who conducted it;
  2. A record of all search words or terms used on each search. However where it is impracticable to record each word or terms (such as where Boolean searches or search strings or conceptual searches are used) it will usually be sufficient to record each broad category of search
  3. A log of the key judgements made while refining the search strategy in the light of what is found, or deciding not to carry out further searches; and,
  4. Where material relating to a “hit” is not examined, the decision not to examine should be explained in the record of examination or in a statement. For instance, a large number of “hits” may be obtained in relation to a particular search word or term, but material relating to the “hits” is not examined because they do not appear to be relevant to the investigation. Any subsequent refinement of the search terms and further hits should also be noted and explained as above.

A48.  Just as it is not necessary for the investigator or prosecutor to produce records of every search made of hard copy material, it is not necessary to produce records of what may be many hundreds of searches or analyses that have been carried out on digitally stored material, simply to demonstrate that these have been done. It should be sufficient for the prosecution to explain how the disclosure exercise has been approached and to give the accused or suspect’s legal representative an opportunity to participate in defining the reasonable searches to be made, as described in the section on sifting/examination.

The Disclosure Strategy Document [See “Disclosure Part 1 – Introduction”] should set out the disclosure strategy that has been adopted in reviewing the material. The Disclosure Decision Log (or a document annexed to the Disclosure Decision Log) will record what actions and analysis have been carried out in fulfilling that strategy; what judgments and decisions have been made in the course of refining that process; by whom they were undertaken; and when they were executed.

In drafting the Disclosure Management document the prosecutor will then make use of both the Disclosure Strategy Document and Disclosure Decision Log to provide a narrative for the court and the defence as to how disclosure has been undertaken and conducted on the case [See “Disclosure – Part 6”].

AG guidelines Annex (Digital Disclosure) paragraph A47 sets out what must be recorded in general terms in applying search criteria. This translates into the duty to record the following in respect of search criteria:

  1. bag reference for the material that is the subject of the search
  2. the volume of documents searched
  3. who applied the search criteria
  4. the date that the searches were carried out
  5. the search terms used and the key judgments made in settling upon the final search criteria
  6. the number of hits derived from those search criteria

In determining whether digital material held by Proceeds of Crime and International Assistance Division (POCIAD) is considered relevant to the investigation it will often be necessary to apply search criteria. In determining the search criteria to be applied, the POCIAD investigator will liaise with the disclosure officer in order to agree and apply the relevant search criteria and enable a process to be identified to conduct a disclosure review in relation to that digital material.

Review of Material: Digital Review System (DRS)

The DRS records the product of the review of material through a tagging panel. The review of material on the DRS allow for the recording of the following:

  1. Whether an item of material is potentially the subject of Legal Professional Privilege and should therefore be quarantined from operational staff for the purposes of a review by independent counsel.
  2. If the item does not fall within (1) above, whether an item of material is relevant.
  3. If the item of material is relevant, whether it is:
  • an item of material that the prosecution would wish to use in the case against the accused (served as evidence) and therefore would be used material.
  • an item that is sensitive.
  • an item of material that meets the disclosure test in that it might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused.

There is no requirement to describe material that is incapable of impact on the case. However, all relevant unused material, irrespective of the determination in (3) above, must be described. Where that material also meets the test for disclosure or is sensitive material, it must be individually described. Otherwise, material determined to be relevant will be described either through individual document descriptions or, where appropriate, through bulk or generic descriptions of material (see below). The description is recorded on the review panel of the DRS.

It is important to note that digital material comes in many forms and contains additional information to that available on first review. DFU can provide further guidance and knowledge regarding the content, creation and location of key documents if required.

Describing Material

The Code of Practice[4] created under section 23 of the Criminal Procedure and Investigations Act 1996, revised with effect from 19th March 2015 (CPIA Code of Practice), require the performance of certain minimum standards in relation to describing unused material held in relation to an investigation, in that,

“The description of each item should make clear the nature of the item and should contain sufficient detail to enable the prosecutor to decide whether they need to inspect the material before deciding whether or not it should be disclosed.”[5]  

Where material is to be reviewed through the DRS, descriptions of the material can be stored in digital form alongside the scanned image of the relevant documentation. The review panel on the DRS provides an entry for document-based descriptions.  These descriptions can then be exported onto a spread sheet in order to compile the Schedule of Non-sensitive Unused Material and, for the sensitive material held on the DRS, the Schedule of Sensitive Material [See “DRS” chapter].

Where it is not possible to list each item of material separately, a number of items may be listed in a block and described by quantity and using a generic description or title. An example of where such generic descriptions can be used is where there may be many items of a similar or repetitive nature.[6]

Many SFO cases can involve the interrogation of material consisting of very large quantities of data and in such cases the AG Guidelines Annex (Digital Disclosure), reflecting the Code of Practice, qualify the requirement to keep a ‘record or log’ of all digital material seized and retained as relevant to the investigation. In such cases, the obligation is to make a record of the ‘strategy and analytical techniques used to search the data’. Similarly, the scheduling duty imposed on the disclosure officer separately to list each item of unused material (as contained in the Code) is modified in favour of ‘block listing’ – albeit that it remains the prosecution’s duty to list and describe separately ‘the search terms used and any items of material which might satisfy the disclosure test’.[7] The appropriateness of block listing will always be subject to the facts of the particular case and the material to be considered. The AG Guidelines Annex (Digital Disclosure) state as follows:

“A50. In some enquiries it may not be practicable to list each item of material separately. If so, these may be listed in a block and described by quantity and generic title. Even if the material is listed in a block, the search terms used and any items of material which might satisfy the disclosure test are listed and described separately. In practical terms this will mean, where appropriate, cross referencing the schedules to your disclosure management document.

A51.  The remainder of any computer hard drive/media containing material which is not responsive to search terms or other analytical technique or not identified by any “hits”, and material identified by “hits” but not examined, is unused material and should be recorded (if appropriate by a generic description) and retained.”

Duties in Relation to Descriptions

It is the duty of the disclosure officer(s) to ensure that the relevant material has been described to the required standard. The disclosure officer should review or co-ordinate a review of the descriptions that have been compiled to ensure that all the descriptions of relevant case material meet the requirements of the CPIA and the CPIA Code of Practice.   Where generic descriptions are utilised for digital material, it is essential that identifiable material that corresponds to each description of a digital item that appears on the schedule is retained on DRS. 

The AG Guidelines describe the obligations relating to describing material as follows.

  1. In meeting the obligations… [set out in] the Code [to schedule material], schedules must be completed in a form which not only reveals sufficient information to the prosecutor, but which demonstrates a transparent and thinking approach to the disclosure exercise, to command the confidence of the defence and the court. Descriptions on non-sensitive schedules must be clear and accurate, and must contain sufficient detail to enable the prosecutor to make an informed decision on disclosure. The use of abbreviations and acronyms can be problematic and lead to difficulties in appreciating the significance of the material.”

Whether material is listed, described in a block or described generically, the disclosure officer must ensure that any items among that material which might satisfy the test for disclosure (in that it might reasonably be considered capable of undermining the case for the prosecution against an accused or assisting the case for the accused) are listed and described individually.[8]

The role of the prosecutor in reviewing the descriptions as presented on the schedules of sensitive and non-sensitive unused material is set out in “Part 6 – Compiling Schedules of Sensitive and Non-sensitive Material”.

Further guidance on document review can be found in ID86 Document Review Guidance.

[1] See https://www.gov.uk/government/publications/attorney-generals-guidelines-on-disclosure-2013

[2] See https://www.gov.uk/government/publications/attorney-generals-guidelines-on-disclosure-2013

[3] R v R [2015] EWCA Crim 1941

[4] See https://www.gov.uk/government/publications/criminal-procedure-and-investigations-act-code-of-practice

[5] The CPIA Code of Practice, paragraph 6.11. Repeated in the AG Guidance Annex (Digital Disclosure), paragraph A49

[6] The CPIA Code of Practice, paragraph 6.12

[7] R v R paragraph 51

[8] The CPIA Code of Practices, paragraph 6.13

Version OGW 2, Published July 2019 © Crown Copyright, 2020.

This information is licensed under the Open Government Licence v3.0. To view this licence, visit http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/ or write to the Information Policy Team, The National Archives, Kew, Richmond, Surrey, TW9 4DU.

Any enquiries regarding this publication should be sent to the Serious Fraud Office, 2-4 Cockspur Street SW1Y 5BS email: information.officer@sfo.gov.uk

 


Disclosure Part 6 – Compiling Schedules

Preliminaries

Material that may be relevant to the investigation but does not form part of the prosecution case must be separately listed and described on schedules of sensitive material and non-sensitive unused material, unless the material is so sensitive that its existence cannot be recorded on the schedule of sensitive material.

It is this process of scheduling sensitive material and non-sensitive unused material that reveals to the prosecutor the extent of the unused material that may be relevant to the prosecution and enables the prosecutor to identify material that meets the test for disclosure.

Contents of Part 6

Part 6 of the SFO’s Operational Handbook on disclosure covers the following:

  • compiling the schedules of sensitive and non-sensitive unused material
  • identification of material that meets the disclosure test
  • Proceeds of Crime Division (POCD) material
  • signing the schedules of sensitive and non-sensitive unused material

Compiling the Schedules of Sensitive and Non-sensitive Unused Material

Disclosure officer(s) should create and maintain schedules of sensitive and non-sensitive unused material throughout the duration of the case: they should be amended as the case progresses.

Material which may not form part of the prosecution case, but which may be relevant, should be revealed to the prosecutor by inclusion on one of the above schedules. Part 5 (‘Reviewing Material and recording the Review’) details the requirements for describing documents, including the potential to use block descriptions where appropriate. This process should continue throughout the duration of the case. At the point prior to the commencement of proceedings the disclosure officer should provide a written update on the progress of the review of this material for the purposes of devising a disclosure strategy.

Any such material identified by the disclosure officer as potentially meeting the test for disclosure should be revealed to the prosecutor at appropriate times throughout the course of the investigation and as soon as reasonably practicable once the prosecution has commenced.

The descriptions of both non-sensitive unused material and the sensitive material that are held on the Autonomy Digital Review System (DRS) will be exported from that system onto a spread sheet which will then be copied to the corresponding template schedule.

It will be necessary to add to the template schedules any material that has not been retained on the Autonomy DRS, for example, material too sensitive to be retained on the Autonomy DRS or material held by third parties where the review has been conducted “offsite”.

Finalised schedules of sensitive material and non-sensitive unused material should be agreed between the disclosure officer and the prosecutor at a time when the material that will form the evidence in the case has been established. This will generally occur at or around the time that the case is sent  to the Crown Court.  Agreeing the schedules at this stage will minimise the amount of material that will change its status from unused to used material, and thereby minimise the number of amendments that will be required to the schedules following the service of subsequent used material.

Identification of material that meets the Disclosure test

The disclosure officer should draw to the attention of the prosecutor any material over which there is a doubt as to whether it might reasonably be considered capable of undermining the case for the prosecution against an accused or assisting the case of an accused.[1] The final decision as to whether an item meets the test for disclosure is for the prosecutor

The schedules of sensitive material and non-sensitive unused material must record the material that meets the test for disclosure.

The Attorney General’s Guidelines on Disclosure for investigators, prosecutors and defence practitioners (AG Guidelines[2]) state:

“3.        Properly applied, the CPIA should ensure that material is not disclosed which overburdens the participants in the trial process, diverts attention from the relevant issues, leads to unjustifiable delay, and is wasteful of resources. Consideration of disclosure issues should be an integral part of a good investigation and not something that exists separately

“34.      If the material does not fulfil the disclosure test there is no requirement to disclose it. For this purpose, the parties’ respective cases should not be restrictively analysed but must be carefully analysed to ascertain the specific facts the prosecution seek to establish and the specific grounds on which the charges are resisted.”

Proceeds of Crime Division Material

Material held by the Proceeds of Crime Division (POCD) must be managed and reviewed for the purposes of complying with the SFO’s disclosure obligations.

In restraint and confiscation proceedings conducted by POCD it is standard practice to list material obtained as part of the financial investigation on an inventory.   The POCD case team is responsible for recording all of their material on this inventory. This inventory will be available to the disclosure officer to review for relevance at a time prior to the charging decision to reveal the existence of the material that meets the test for relevance to the prosecutor, and thereafter as required by the Disclosure Officer or as updates are made. It is very likely that material obtained by POCD as part of a financial investigation will meet the test for relevance.

All material meeting the test for relevance will be entered on either the schedule of non-sensitive unused material or on the schedule of sensitive material by the disclosure officer. The disclosure officer will ensure that the material is described to the standard required by this chapter and in accordance with the Criminal Procedure and Investigations Act 1996 (CPIA) (section 23(1)) Code of Practice (the CPIA Code of Practice).

Where a review of the material scheduled on the POCD inventory is required, the Disclosure Officer may inspect the non-compelled material. Only the prosecutor or counsel instructed by the prosecutor can inspect compelled material. A record will be made by the disclosure officer or prosecutor of the material inspected, the time and the date.

Where compelled material meets the test for disclosure to a co-defendant an application must be made to the Court that issued the Restraint Order.

The purpose of this application is to release POCD from any term of the Restraint Order which would otherwise restrict the cross-disclosure of material to co-defendants.

It shall be the responsibility of the POCD lawyer to make this application. Where possible, this application to the relevant court should be made as soon as reasonably practicable after the charging decision in relation to the accused. If the judge refuses the application referred to above, then the prosecutor will be informed forthwith. The prosecutor will need to consider making a Public Interest Immunity (PII) application relating to the material or, where appropriate, to apply for separate trials as against separate defendants. Alternatively, the prosecutor may have to determine whether it is appropriate to continue the case against one or more of the accused.

The POCD inventory will be regularly updated and provided to the disclosure officer upon request to reflect fresh material that has been obtained as part of the financial investigation.

Sensitive Material and Redactions

Where there is a document that, once redacted, can safely be placed on the schedule of non-sensitive unused material, the redacted version should appear on that schedule with a description that indicates that it has been redacted. The original un-redacted version of the document will remain on the schedule of sensitive material with a description that reflects that it is an original and the reason for it being considered sensitive.  The reason for its sensitivity should also include a reference to the redacted version of the document that appears on the schedule of non-sensitive unused material.

All redacted documents should be brought to the attention of the prosecutor. The prosecutor must be shown which portions of the material have been redacted with the reasons for the redaction being recorded in the Disclosure Decision Log.

Redactions should not be made of entries that might reasonably be considered capable of undermining the case for the prosecution against an accused or of assisting the case for the accused. Where material has been identified as sensitive (therefore listed on the schedule of sensitive material), but also as meeting the disclosure test, then such material must be brought to the attention of the prosecutor at the earliest opportunity.

Every effort should be made to resolve the conflict between the sensitivity of a given document and the requirement to disclose it to the accused. Redaction is appropriate where it can safely take place without impacting on the material that meets the disclosure test.  Other options include making formal admissions, amending the charges or presenting the case in a different way so as to ensure fairness.

Signing the Schedules of Sensitive and Non-sensitive Unused Material

The disclosure made to the accused should be made in conjunction with the service of a schedule of non-sensitive unused material. This requires that prior to the service of the schedule of non-sensitive unused material the prosecutor and the disclosure officer must be satisfied that:

  • all used material has been identified (this only includes material that has been served by way of transfer, as part of a sending bundle or under a Notice of Additional Evidence) and that no used material appears on either the schedule of non-sensitive unused material or the schedule of sensitive material
  • all material that may be relevant to the case but is not used material is listed on either the schedule of non-sensitive unused material or on the schedule of sensitive material (unless it is so sensitive that it should not be included on the schedule of sensitive material)
  • all sensitive material has been identified and appears on the schedule of sensitive material
  • all material on the schedule of sensitive material has been listed separately on the schedule and numbered consecutively
  • all the material on the schedule of sensitive material falls into one of the categories for sensitivity (if not it must appear on the schedule of non-sensitive unused material). If only part of an item is sensitive, the whole item should be listed on the schedule of sensitive material
  • any sensitive material that also meets the test for disclosure has been identified:
    • that appropriate measures have been taken to put the material into a form by which it can be disclosed (for example by redaction) or
    • where it is not possible to put material in a form where it can be disclosed that an application has been made to the court for public interest immunity in relation to that material
  • all material on the schedule of non-sensitive unused material has been numbered consecutively
  • all the material listed on the schedule of non-sensitive unused material and the schedule of sensitive material has been properly described
  • all the material that is listed on the schedule of non-sensitive unused material that also meets the disclosure test has been copied for the defence
  • all material that is to be disclosed to the defence by way of copying (or by way of defence inspection of the material) is properly recorded on the schedule of non-sensitive unused material
  • the views of a third party (whether a domestic third party or one from outside of the jurisdiction) have been obtained regarding the proposed use of that material for the purposes of disclosure where the third party may consider the material to be sensitive or subject to a restriction on its subsequent disclosure

The schedule of non-sensitive material should include a declaration that the disclosure officer does not believe that the material listed on the schedule is sensitive. Conversely, the schedule of sensitive material should include a declaration that the disclosure officer believes that the material listed on the schedule is sensitive material.  When each check has been completed, the schedules of non-sensitive unused material and the schedule of sensitive material should be signed by the disclosure officer

The prosecutor has a duty to review the descriptions as produced on the schedules of unused material and to advise the disclosure officer of:

  • any apparent omissions or amendments required;
  • insufficient or unclear descriptions of items; or
  • a failure to provide schedules at all.[3]

The disclosure officer must forthwith take all necessary remedial action and provide properly completed schedules to the prosecutor.

The CPIA Code of Practice places the responsibility for creating the schedules and keeping them accurate and up-to-date on the disclosure officer. Consequently, the prosecutor should inform the disclosure officer of the changes required and return the schedules for amendment where appropriate. Any amendment or entry made by the prosecutor to the schedules should be clearly identified and recorded.  Such amendments or entries should be agreed between the prosecutor and the disclosure officer.

[1] AG Guidelines, paragraph 26

[2] See https://www.gov.uk/government/publications/attorney-generals-guidelines-on-disclosure-2013

[3] AG Guidelines, paragraph 29

Version OGW 2, Published February 2020 © Crown Copyright, 2020.

 This information is licensed under the Open Government Licence v3.0. To view this licence, visit http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/ or write to the Information Policy Team, The National Archives, Kew, Richmond, Surrey, TW9 4DU.

Any enquiries regarding this publication should be sent to the Serious Fraud Office, 2-4 Cockspur Street SW1Y 5BS email: information.officer@sfo.gov.uk


Disclosure Part 7 – The Disclosure Process

Contents of Part 7

Part 7 of the SFO’s Operational Handbook on disclosure covers the following:

  • Disclosure of material prior to initial disclosure
  • Initial disclosure, and sensitive material that meets the test for disclosure
  • Completing initial disclosure
    • Timing of initial Disclosure
    • The Disclosure Management Document
    • Provision of material to the prosecution advocate(s)
  • The continuing duty of disclosure
  • Amended or addendum unused schedules
  • Recording the performance of continuing disclosure
  • Defence disclosure to the prosecution
    • Notification of intention to call defence witnesses
    • Code of practice for arranging and conducting interviews of witnesses notified by the accused
  • Compliance with the continuing duty of disclosure – Notice to the accused
  • Defence requests for material
  • Special circumstances

Disclosure of Material Prior to Initial Disclosure

In SFO cases, the investigators, case controller and the prosecutor will already have worked together in determining whether the accused should be charged. After charge the disclosure officer is required to ensure that to the best of his or her knowledge and belief no information has been withheld which would assist the accused in the preparation of the defence case, including the making of a bail application.

The Attorney General Guidelines on Disclosure for investigators, prosecutors and defence practitioners (2013) (AG Guidelines)[1] state as follows:

“14. Investigators must always be alive to the potential need to reveal and prosecutors to the potential need to disclose material, in the interests of justice and fairness in the particular circumstances of any case, after the commencement of proceedings but before their duty arises under the Act. For instance, disclosure ought to be made of significant information that might affect a bail decision. This is likely to depend on what the defence chooses to reveal at that stage.”

From the start of any prosecution, the prosecutor should consider what (if any) immediate disclosure should be made in the interests of justice and fairness in the particular circumstances of the case.[2] Examples of what should be disclosed are:

  • any previous convictions of the victim or a key witness if that information could reasonably be expected to assist the accused when applying for bail;
  • material which might enable an accused to make a pre-arraignment application to stay the proceedings as an Abuse of Process [See “Abuse of Process” topic];
  • material which might enable an accused to submit that the prosecution’s case should be dismissed;
  • material which would enable an accused to prepare for trial which may be significantly less effective if disclosure is delayed (e.g. names of significant witnesses whom the prosecution do not intend to use).

This list is not exhaustive and the prosecutor is not required to give full disclosure at this early stage, only that which in the interest of justice and fairness should be disclosed prior to initial disclosure. Disclosure prior to the statutory duty arising will not exceed the disclosure which would be required under the CPIA.

Initial Disclosure and Sensitive Material which meets the Test for Disclosure

Where material cannot be appropriately redacted in order to remove the sensitive aspects of the material without impacting on the aspects of the material that meets the disclosure test, or the material by its nature cannot lose its sensitivity through redaction, the prosecutor and prosecution advocate need to consider whether a fair trial can take place without the disclosure of the material.

Other options available where the material cannot be safely disclosed through redaction would include amending the charges or presenting the case in a different way. However, if it is the view of the prosecutor that the material does meet the test for disclosure, that the material is sensitive as its disclosure would give rise to a real risk of serious prejudice to an important public interest and a fair trial can still proceed without the disclosure of the material, then the prosecutor will need to make an application to the Court for non-disclosure of the material on the grounds of Public Interest Immunity.

“If a court concludes that an item of sensitive material satisfies the prosecution disclosure test and that the interests of the defence outweigh the public interest in withholding disclosure, it will be necessary to disclose the material if the case is to proceed. This does not mean that sensitive documents must always be disclosed in their original form: for example, the court may agree that sensitive details still requiring protection should be blocked out, or that documents may be summarised, or that the prosecutor may make an admission about the substance of the material under section 10 of the Criminal Justice Act 1967.”[3] 

[For guidance on sensitive material see “Disclosure Part 6 – Compiling Schedules of Sensitive and Non-sensitive Unused Material”. For applications for PII see “Disclosure Part 8 – Public Interest Immunity” topic].

As stated in the AG Guidelines,

“69.  If prosecutors conclude that a fair trial cannot take place because material which satisfies the test for disclosure cannot be disclosed, and that this cannot be remedied by the above procedure; how the case is presented; or by any other means, they should not continue with the case.”

For a guide on the process of applying for Public Interest Immunity, see the “Disclosure Part 8 – Public Interest Immunity” topic.

Completing Initial Disclosure

It is the duty of the prosecutor to disclose to the accused all material that meets the disclosure test unless there is a court order permitting the non-disclosure of specified items. [4]

Provision to the defence of the material that meets the test for disclosure takes place under cover of a letter (“the Notice”) attaching a copy of the material that falls to be disclosed, along with a copy of the signed schedule of non-sensitive unused material and the declaration that there is nothing further to disclose.[5] Alternatively, where material has previously been disclosed under the provisions of section 3 of the CPIA and the schedule of non-sensitive unused material has been provided, the Notice will declare that there is nothing further to disclose.

By complying with these requirements the prosecutor complies or purports to comply with the duties imposed under section 3 of the CPIA.

At the same time as complying with the requirements of section 3 of the CPIA, the prosecutor should provide a copy of the Notice to the Court.[6]

While it is right that attention must be paid to the format of the material supplied,[7] it is no part of the prosecution’s duty under s.3 to improve the material seized.[8]

The prosecutor can purport to comply with initial disclosure even where it is or may be apparent that further prosecution disclosure might be required in the future but there has been a substantial compliance with initial disclosure obligations.[9] In such cases, where the prosecution believes that further prosecution disclosure is likely, the court and defence should be put on notice, to the extent possible, within the Disclosure Management Document regarding the further areas of disclosure which may be forthcoming, such as third party material

Timing of initial Disclosure

The prosecutor should be in a position to provide initial disclosure as soon as reasonably practicable after the case has been sent to the Crown Court. Under the Better Case Management System initiative the expectation is that an order will be made at the Pre-Trial Preparation Hearing for provision of initial disclosure, or at least a timescale provided by the prosecution. [See the “Sending” Chapter].

The following paragraph from the Judicial Protocol on the Disclosure of Unused Material in Criminal Cases should be noted:

“The court should keep the timetable for prosecution and defence disclosure under review from the first hearing. Judges should as a matter of course ask the parties to identify the issues in the case, and invite the parties to indicate whether further disclosure is sought, and on what topics. For example, it is not enough for the judge to rely on the content of the PCMH form. Proper completion of the disclosure process is a vital part of case preparation, and it may well affect the progress of the case. The court will expect disclosure to have been considered from the outset; the prosecution and defence advocates need to be aware of any potential problems and substantive difficulties should be explained to the judge; and the parties should propose a sensible timetable. Realism is preferable to optimistic but unachievable deadlines which may dislocate the court schedule and imperil the date of trial. It follows that judges should not impose deadlines for service of the case papers or disclosure until they are confident that the prosecution advocate has taken instructions from the individuals who are best placed to evaluate the work to be undertaken.” [10]

The prosecution must be in the driving seat at the stage of initial disclosure, which will require early and careful preparation from the prosecution, tailored to the needs of the individual case.[11]

The Disclosure Management Document

The Disclosure Management Document (DMD) is a document that should be provided to the accused and the court to assist them in understanding how the disclosure exercise was undertaken on the case. It should accompany the initial disclosure Notice served under section 3 of the CPIA, although there is no fixed requirement as to the time when a Disclosure Management Document should be served.

The aim of the Disclosure Management Document is to provide a narrative to the Court and to the defence about how the disclosure obligations have been complied with in the circumstances of the particular case. To fulfil this requirement, the Disclosure Management Document will be provided to the court and the defence. As stated in the Judicial Protocol on the Disclosure of Unused Material in Criminal Cases:

“A disclosure-management document, or similar, prepared by the prosecution will be of particular assistance to the court in large and complex cases.”[12]

The requirement for a Disclosure Management Document and what such a document should include are set out in the AG Guidelines:

“50. The particular challenges presented by large and complex criminal prosecutions require an approach to disclosure which is specifically tailored to the needs of such cases. In these cases more than any other is the need for careful thought to be given to prosecution-led disclosure matters from the very earliest stage. It is essential that the prosecution takes a grip on the case and its disclosure requirements from the very outset of the investigation, which must continue throughout all aspects of the case preparation.

  1. Accordingly, investigations and prosecutions of large and complex cases should be carefully defined and accompanied by a clear investigation and prosecution strategy. The approach to disclosure in such cases should be outlined in a document which should be served on the defence and the court at an early stage. Such documents, sometimes known as Disclosure Management Documents, will require careful preparation and presentation, tailored to the individual case. They may include:

a) Where prosecutors and investigators operate in an integrated office, an explanation as to how the disclosure responsibilities have been managed;

b) A brief summary of the prosecution case and a statement outlining how the prosecutor’s general approach will comply with the CPIA regime, these Guidelines and the Judicial Protocol on the Disclosure of Unused Material in Criminal Cases;

c) The prosecutor’s understanding of the defence case, including information revealed during interview;

 d) An outline of the prosecution’s general approach to disclosure, which may include detail relating to:

  1. Digital material: explaining the method and extent of examination, in accordance with the Annex to these Guidelines;
  2. Video footage;
  3. Linked investigations: explaining the nexus between investigations, any memoranda of understanding or disclosure agreements between investigators;
  4. Third party and foreign material, including steps taken to obtain the material;
  5. Reasonable lines of enquiry: a summary of the lines pursued, particularly those that point away from the suspect, or which may assist the defence;
  6. Credibility of a witness: confirmation that witness checks, including those of professional witnesses have, or will be, carried out.”

 

  1. Thereafter the prosecution should follow the Disclosure Management Document. They are living documents and should be amended in light of developments in the case; they should be kept up to date as the case progresses. Their use will assist the court in its own case management and will enable the defence to engage from an early stage with the prosecution’s proposed approach to disclosure.”

The Disclosure Management Document plays an important part in encouraging dialogue and prompt engagement with the defence and should be drafted and served sufficiently early to serve this purpose. The Criminal Procedure Rules place a duty on the defence to engage with the prosecution and thereby assist the Court in fulfilling its duty of furthering the overriding objective to deal with cases justly ‘by actively managing the case’.[13]

Provision of material to the prosecution advocate(s)

The prosecution advocate has a responsibility to ensure that all material that ought to be disclosed under the CPIA is disclosed to the defence. The duties of prosecution advocates in relation to disclosure are clearly set out in paragraphs 35 to 38 of the AG Guidelines. It is important that the prosecution advocate(s) are in a position to identify and, where appropriate address, disclosure issues as they arise during the course of the trial.[14]

In order to ensure that prosecution advocates can fulfil their duties under paragraph 37 of the AG Guidelines and are able to keep decisions relating to disclosure under review until the conclusion of the trial, it is important that they are fully instructed in relation to disclosure matters and that they have access to the material recording disclosure decisions.[15]

In order to comply with this requirement under the AG Guidelines, it is important that prosecution advocates are provided with access to any material that they consider necessary for the purposes of disclosure.

To this end, the prosecution advocate should be provided with:

  • access to, or where appropriate copies of, the disclosure strategy document, Disclosure Decision Log, the Case Decision Log and any other record policy or disclosure decisions that they seek
  • the finalised schedules of non-sensitive unused material and the disclosure management document
  • access to or copies of the schedule of sensitive unused material
  • the list of material that is considered by both the prosecutor as meeting the test for disclosure
  • copies of or access to the material that meets the test for disclosure (or where that material is sensitive, to be provided with copies of the material or access to it depending on what is appropriate in the circumstances)

Where a prosecution advocate seeks to inspect material which is not within the possession of the SFO, everything reasonably practicable should be done to obtain the original or a copy of that material. Where it is not reasonably practicable to obtain the material sought by the prosecution advocate, the reason why it is not reasonably practicable to obtain the material should be recorded in the Disclosure Decision Log. This record should be brought to the attention of the prosecution advocate at the earliest opportunity.

Prior to trial, prosecution advocates should not disclose material to the defence save following consultation and agreement with the prosecutor, case controller and the disclosure officer. During trial this may not be possible, but prosecution advocates are expected to do their best to contact the prosecutor and the disclosure officer in advance of any disclosure to the defence.

The Continuing Duty of Disclosure

Upon complying with the requirements of section 3 of the CPIA, the prosecutor remains under a continuing duty to disclose material that meets the disclosure test (section 7A of the CPIA). This continuing duty to disclose continues through to the conviction or acquittal of the accused;[16] the continuing duty of disclosure continues as long as proceedings remain whether at first instance or on appeal.[17]  In certain circumstances, there remains an obligation to disclose material that continues after proceedings have been concluded pursuant to a common law duty on the prosecutor to act fairly and to assist in the administration of justice[18] (see Special Circumstances below).

This continuing duty of disclosure requires that prosecutors must keep under review the question as to whether at any given time there is material which they have in their possession or which has been reviewed as part of the case[19]  which meets the disclosure test and which has not previously been disclosed to the accused.[20] Fresh information could arise, for example through the obtaining of further material in relation to the investigation. Alternatively, fresh information or material could come to light during the course of the trial which might cause the prosecutor to return to the material in the possession of the prosecution to identify material that now meets the test for disclosure.  In determining whether at any given time material meets the test for disclosure, account must be taken of the state of affairs at that time, including the case for the prosecution as it stands at that time.[21]

This duty of continuing disclosure is particularly important upon receipt of the defence statement (see below);[22] however, the continuing duty arises whether or not a defence statement has been served in the case.

Provision of material to the accused in compliance with the obligations imposed under section 7A of the CPIA should be done under cover of a Notice.

Amended or Addendum Unused Schedules

Following the completion of initial disclosure there remains a duty imposed on the disclosure officer to ensure that the schedule of non-sensitive unused material and the schedule of sensitive material remain up to date. Where a schedule is rendered inaccurate, for example through further disclosure of material to the accused, such inaccuracies should be rectified at the earliest opportunity through amending the schedule.

To enable the prosecutor to comply with the continuing duty to disclose material that satisfies the test for disclosure, any new material that comes to light should be treated in the same way as the earlier material.[23]  Such material should be recorded on an addendum schedule of non-sensitive unused material or, where appropriate, on an addendum schedule of sensitive material.

Recording the Performance of Continuing Disclosure

As previously stated, it is important for prosecutors to maintain a record of the actions and decisions they make in discharging their disclosure responsibilities. This duty to record extends to actions taken in relation to continuing disclosure obligations. The Autonomy DRS enables prosecutors to record instances where a fresh consideration has been given to material which is in the possession of the prosecutor (whether held or reviewed as part of the investigation) which meets the disclosure test. Best practice would suggest that a record should be made in the Disclosure Decision Log of the actions taken in complying with the continuing disclosure obligations and the actions considered but rejected.

Defence Disclosure to the Prosecution

The accused must give a Defence Statement to the court and the prosecutor within 28 days of the date upon which the prosecution has complied with or purports to comply with initial disclosure[24] or seek an extension of time for the service of the document (though late service will not prevent the document being considered as a defence statement).[25]

Prosecutors should be vigilant to ensure that the defence statements comply with the requirements set out in the provisions of the CPIA, be proactive in raising such issues with the accused’s representatives at appropriate times and bring any failures by the accused to comply with the provisions to the court’s attention at the earliest opportunity.

The defence statement is a written statement setting out:

a) the nature of the accused’s defence, including any particular defences on which they intend to rely

b) the matters of fact on which they take issue with the prosecution

c) in the case of each such matter, why they take issue with the prosecution

d) particulars of the matters of fact on which they intend to rely for the purposes of their defence (though please see the commencement date for this provision[26])

e) any point of law (including any point as to the admissibility of evidence or an abuse of process) which they wish to take, and any authority on which they intend to rely for that purpose.[27]

As set out in the AG Guidelines, the prosecutor should challenge the defence where they have not provided a defence statement or where the defence statement is inadequate. This should be done in writing to the defence solicitors copying in the court and seeking directions from the court as to the provision of a defence statement which meets with the requirements set out above.[28]

The AG Guidelines state:

“39. Defence engagement must be early and meaningful for the CPIA regime to function as intended. Defence statements are an integral part of this and are intended to help focus the attention of the prosecutor, court and co-defendants on the relevant issues in order to identify exculpatory unused material. Defence statements should be drafted in accordance with the relevant provisions of the CPIA.

  1. Defence requests for further disclosure should ordinarily only be answered by the prosecution if the request is relevant to and directed to an issue identified in the defence statement. If it is not, then a further or amended defence statement should be sought by the prosecutor and obtained before considering the request for further disclosure.
  2. In some cases that involve extensive unused material that is within the knowledge of a defendant, the defence will be expected to provide the prosecution and the court with assistance in identifying material which is suggested to pass the test for disclosure.
  3. The prosecution’s continuing duty to keep disclosure under review is crucial, and particular attention must be paid to understanding the significance of developments in the case on the unused material and earlier disclosure decisions. Meaningful defence engagement will help the prosecution to keep disclosure under review. The continuing duty of review for prosecutors is less likely to require the disclosure of further material to the defence if the defence have clarified and articulated their case, as required by the CPIA.

Where alibi is raised by the accused, specific reference should be made to section 6A(2) of the CPIA to ensure that the accused has complied with its provisions.

The Judicial Protocol on the Disclosure of Unused Material in Criminal Cases adds that:

“20. If no defence statement – or an inadequate defence statement – is served within the relevant time limits, the judge should investigate the position. At every PCMH where there is no defence statement, including those where an extension has been given, or the time for filing has not yet expired, the defence should be warned in appropriate terms that pursuant to section 6E(2) of the CPIA an adverse inference may be drawn during the trial, and this result is likely if there is no justification for the deficiency. The fact that a warning has been given should be noted.

  1. An adverse inference may be drawn under section 11 of the CPIA if the accused fails to discharge his or her disclosure obligations. Whenever the amended CPIA regime applies, the prosecution may comment on any failure in defence disclosure (except where the failure relates to a point of law) without leave of the court, but counsel should use a measure of judgment as to whether it is wise to embark on cross-examination about such a failure.[29] If the accused is cross-examined about discrepancies between his evidence and his defence statement, or if adverse comment is made, the judge must give appropriate guidance to the jury.”[30]

The disclosure officer and investigators should be provided with copies of the defence statements that have been served by each defendant.[31]

“If the defence statement does point to other reasonable lines of enquiry, further investigation is required and evidence obtained as a result of these enquiries may be used as part of the prosecution case or to rebut the defence.”[32]

Prosecutors must consider the defence statement thoroughly and consider whether the defence statement points to other lines of enquiry.[33]  Where the prosecutor is not the case controller on the case then the prosecutor should advise on relevant and reasonable lines of enquiry that should be pursued in complying with the continuing disclosure obligations.[34] Following receipt of the defence statements, the disclosure officer must look again at the material which has been retained and must draw the attention of the prosecutor to any material which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused.[35]

The prosecutor and the disclosure officer should record the actions taken in complying with the continuing duty of disclosure following receipt of defence statement(s) (see above – Recording the performance of continuing disclosure).

Notification of intention to call defence witnesses

The Criminal Justice Act 2003 (“CJA 2003”) introduced a duty on the defence to notify the court and prosecutor of any other witnesses the accused intends to call. These provisions are now found under section 6A(2) of the CPIA (alibi) and 6C of the CPIA (general duty to notify of the intention to call witnesses). This requirement applies from 1 May 2010 (SI 2010/1183) and the notification by the defendant of his or her intention to call witnesses is separate from the defence statement.[36]

The defence is required to give the court and prosecutor a Notice, which includes providing the name, address, and date of birth of each proposed witness or, if any such details are not known, other identifying information which might be of material assistance in identifying or finding any such proposed witness.

Code of Practice for arranging and conducting interviews of witnesses notified by the accused

From 1st May 2010, the Code of Practice for Arranging and Conducting Interviews of Witnesses Notified by the Accused was brought into force. This Code of Practice sets out the guidance that police officers and SFO investigators must have regard to when arranging and conducting interviews with proposed witnesses identified in a defence statement given under section 6A(2) of the CPIA or a notice given under section 6C of the CPIA. This guidance is fully set out in that Code and is not repeated here.

Compliance with the Continuing Duty of Disclosure – Notice to the Accused

If, as a result of a defence statement which complies with the requirements imposed under sections 5(5) and 6A of the CPIA, the prosecutor is required to make any disclosure or further disclosure to the defence then the prosecutor must do so. Where the prosecutor considers that he or she is not required to make any further disclosure to the accused then the prosecutor must give the accused a written statement to that effect.

Where material is sensitive but meets the test for disclosure then the same considerations apply in determining how to address this issue as they would at the initial disclosure stage (see “Initial disclosure and sensitive material that meets the test for disclosure” above).

The prosecutor is required to act, either by disclosing material or by providing a written statement to the accused to the effect that there is no further material to be disclosed as a result of the defence statement. This should be provided to the accused as soon as reasonably practicable after the decision is reached.

The decisions regarding continuing disclosure, the service of further material pursuant to the continuing duty of disclosure obligation and the written statement that there is no further material to be disclosed should be recorded in the Disclosure Decision Log and in the prosecutor’s records.

Defence Requests for Material

The AG Guidelines state as follows:

“9. Disclosure must not be an open-ended trawl of unused material. A critical element to fair and proper disclosure is that the defence play their role to ensure that the prosecution are directed to material which might reasonably be considered capable of undermining the prosecution case or assisting the case for the accused.  This process is key to ensuring prosecutors make informed determinations about disclosure of unused material.  The defence statement is important to identifying the issues in the case and why it is suggested that the material meets the test for disclosure.”

The Judicial Protocol on the Disclosure of Unused Material in Criminal Cases states:

“26. Service of a defence statement is an essential precondition for an application under section 8, and applications should not be heard or directions for disclosure issued in the absence of a properly completed statement (see the relevant Criminal Procedure Rules).  In particular, blanket orders in this context are inconsistent with the statutory framework for disclosure laid down by the CPIA and the decision of the House of Lords in R v H and C (supra). It follows that defence requests for disclosure of particular pieces of unused prosecution material which are not referable to any issue in the case identified in the defence statement should be rejected.” (Our emphasis). 

Following:

  • a defence statement being served under sections 5, 6A of the CPIA, and
  • the prosecution has complied with the prosecutor’s duty of continuing disclosure through providing a statement that there is no further material to be disclosed following receipt of the defence statement (pursuant to section 7A(5) of the CPIA), or
  • purports to comply with this provision, or
  • has failed to comply with this provision
  • then, if the accused has at any time reasonable cause to believe that there is prosecution material which is required to be disclosed under the prosecutor’s continuing duty of disclosure (under section 7A of the CPIA) and has not been disclosed to them, the accused may apply to the court for an order requiring the prosecutor to disclose that material to them.[37] Such an application is made pursuant to section 8(2) of the CPIA.

The application made by the defendant must be served on the court and the prosecutor and must fulfil the following requirements:

  • describe the material the defendant wants the prosecutor to disclose
  • explain why the defendant thinks there is reasonable cause to believe that –
    • the prosecutor has that material, and
    • it is material that the CPIA requires the prosecutor to disclose
  • ask for a hearing, if the defendant wants one, and explain why it is needed[38]

In this respect, it is important to note the provisions of section 8(3) of the CPIA which defines prosecution material as follows:

“(3) For the purposes of this section prosecution material is material—

(a) which is in the prosecutor’s possession and came into his possession in connection with the case for the prosecution against the accused,

(b) which, in pursuance of a code operative under Part II, he has inspected in connection with the case for the prosecution against the accused, or

(c) which falls within subsection (4).

(4) Material falls within this subsection if in pursuance of a code operative under Part II the prosecutor must, if he asks for the material, be given a copy of it or be allowed to inspect it in connection with the case for the prosecution against the accused.”

There will be no requirement on the prosecution to disclose material unless the prosecutor has had 14 days in which to make representations or is present when the order is made.

It is important that at the appropriate case management hearings the court is invited to make a direction setting a date by which applications under section 8 are to be made, and should require the defence to indicate, in advance of the cut-off date for specific disclosure application, which documents they are interested in and from what source.

Defence requests for specific disclosure of unused prosecution material in purported compliance with section 8 of the CPIA but which are not referable to any issue in the case identified in the defence statement should be rejected[39], both by the prosecutor and the court.

Special Circumstances

The duty of disclosure post-conviction has been clarified by the Supreme Court in the case of R (on the application of Nunn) v Chief Constable of Suffolk Constabulary and another [2014] UKSC 37. In that case, Lord Hughes gave the judgment of the court and stated as follows:

“24. Similarly, although the duties laid down by the Act cease on conviction, some continuing common law duty is recognised to apply pending sentence, but only in relation to material relevant to that stage. The Attorney-General has issued guidelines on disclosure for prosecutors. They recognise at [paragraph 70] that prosecutors must consider disclosing in the interests of justice any material relevant to sentence, such as information not known to the defendant which might assist him in placing his role in the offence in the correct context vis-à-vis other offenders. That correctly gives effect to the common law duty which at this point is limited to material not known to the defendant which might assist him in relation to sentence.

  1. In the same way, while an appeal is pending, a limited common law duty of disclosure remains. Its extent has not been analysed in English cases, but plainly it extends in principle to any material which is relevant to an identified ground of appeal and which might assist the appellant. Ordinarily this will arise only in relation to material which comes into the possession of the Crown after trial, for anything else relevant should have been disclosed beforehand under the Act. But if there has been a failure, for whatever reason, of disclosure at trial then the duty after trial will extend to pre-existing material which is relevant to the appeal…”

The interests of justice will mean that where material comes to light after the conclusion of the proceedings that might cast doubt upon the safety of the conviction, there is a duty to consider disclosure. Any such material should be brought immediately to the attention of the Head of Division.[40]

[1] See https://www.gov.uk/government/publications/attorney-generals-guidelines-on-disclosure-2013

[2] R v DPP ex parte Lee [1999] 2 All ER 737

[3] The Criminal Procedure and Investigations Act 1996 (section 23(1)) Code of Practice (CPIA Code of Practice), paragraph 10.5

[4] Section 3 of the CPIA 1996

[5] Sections 4(2) and 24(3) of the CPIA 1996

[6] Criminal Procedure Rules

[7] Gross LJ Review of Disclosure in Criminal Proceedings, September 2011 at para 159

[8] R v R [2015] EWCA Crim 1941, paragraph 64

[9] R v R paragraph 60

[10] Judicial Protocol on the Disclosure of Unused Material in Criminal Cases, paragraph 7

[11] R v R paragraph 46-47

[12] Judicial Protocol on the Disclosure of Unused Material in Criminal Cases, paragraph 39

[13] R v R paragraph 48, CPR 3.2

[14] AG Guidelines, paragraph 37

[15] See the AG Guidelines, paragraph 35 to 38

[16] Section 7A of the CPIA 1996

[17] R v Makin [2004] EWCA Crim 1607

[18] R v Mills and Poole [1998] AC 382

[19] As defined in section 3(2) of the CPIA

[20] Section 7A(2) of the CPIA

[21] Section 7A(4) of the CPIA

[22] Section 7A(5) of the CPIA

[23] The CPIA Code of Practice, paragraph 8.2

[24] Section 5(2) and 5(5) of the CPIA and paragraph 2 of the Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulation 2011

[25] See section 11(2) and (3) of the CPIA, also DPP v Woods [2006] EWHC 32 (Admin)

[26] This provision does not apply if the person was charged before 8th November 2008 or was indicted, transferred or sent to the Crown Court prior to that date (Criminal Justice and Immigration Act 2008 (Commencement No. 3 and Transitional Provisions) Order 2008 (SI 2008.2712)

[27] Section 6A of the CPIA

[28] AG Guidelines, paragraph 33

[29] R v Essa [2009] EWCA Crim 43 at paragraph 22

[30] R v Haynes [2011] EWCA Crim 3281

[31] AG Guidelines, paragraph 31

[32] AG Guidelines, paragraph 31

[33] AG Guidelines, paragraph 32

[34] AG Guidelines, paragraph 31

[35] The CPIA Code of Practices, paragraph 8.3

[36] Section 34 CJA 2003 inserts s6C into the CPIA 1996, as brought into force by SI 2010/1183

[37] CPIA, section 8

[38] Criminal Procedure Rules 2015, Part 15.5

[39] Judicial Protocol on the Disclosure of Unused Material in Criminal Cases, paragraph 26

[40] AG Guidelines, paragraph 72


Disclosure Part 8 – Public Interest Immunity (PII)

Contents of Part 8

Part 8 of the SFO’s operational guidance on disclosure covers the following.

  • An introduction to the concepts of Public Interest Immunity (PII)
  • PII in SFO cases
  • Sensitive material generated by, supplied by or held by another government department
  • A government department’s application for PII – The PII certificate
  • Making the application for PII
  • PII hearings
  • Special Counsel

Introduction

The court may make an order for Public Interest Immunity (PII), which permits the non-disclosure of material which the prosecution would otherwise be duty bound to disclose to the defence. This type of court order must be distinguished from a Public Interest Immunity Certificate, which is issued by a government department, and which is considered below.

A PII court order can only be made only in respect of material that might reasonably be considered capable of undermining the case for the prosecution against an accused or of assisting the case for an accused, where the disclosure of it would pose a material risk of serious prejudice to an important public interest.

As such, PII only arises when:

  • the material is sensitive in that it is material the disclosure of which would risk serious prejudice to an important public interest (this material is therefore recorded on the schedule of sensitive material)

AND

  • it is material which meets the test for disclosure in that it might reasonably be considered capable of undermining the case for the prosecution against an accused or of assisting the case for an accused.

PII can be claimed only if disclosure of the material could cause a real risk of serious prejudice to an important public interest. The court will make an order only if the harm in disclosing the material outweighs the interests of justice in disclosing it.

The categories of sensitivity are set out in Code 6.15 of the Code of Practice of the Criminal Procedure and Investigations Act 1996 (CPIA).

As is explained in Part 7 of the Disclosure Guidance, the prosecution is under a duty to disclose to the defence material that meets the test for disclosure unless there is a court order not to do so. Sections 3(6) and 7A(8) of the CPIA provide for this order, stating that material must not be disclosed as part of initial or continuing disclosure to the extent that the court, on an application by the prosecutor, concludes it is not in the public interest to disclose it and orders accordingly.

It will be for the court to determine whether the accused can still have a fair trial despite the non-disclosure of the material, such a decision being dependent on the circumstances of the case. Where the court determines that the material does meet the test for disclosure but that it should not be disclosed on the basis of public interest, the court and the prosecutor will be required to keep this decision under review on a continuing basis.

Before seeking an order for PII, the prosecutor should consider whether the part of the material that meets the test for disclosure can safely be disclosed through redacting the sensitive parts of the material, or through a summary of the material or by other means. Redaction of the material or summaries of the material can safely be utilised where this does not impact on the material that is required to be disclosed.  Where the aspects of the material that is redacted (or not included in the summary) do not themselves require disclosure, there is no requirement to make an application for PII.  Where the redacted portion of the material, or the part of the summary, impacts on the portion of material that meets the test for disclosure, the court is required to approve the redaction or summary.

SFO Internal Procedure for PII Material

  • Material that meets the test for sensitivity should be recorded on the schedule of sensitive material.
  • Where sensitive material meets the test for disclosure, this should be recorded on the schedule of sensitive material by the prosecutor.
  • The prosecutor and the prosecution advocate must make any necessary enquiries of the investigator(s) or the disclosure officer who have obtained and reviewed the material. Investigators and disclosure officers must be frank with the prosecutor about the full extent of the sensitive material.[1]
  • The prosecutor and the prosecution advocate must examine all material over which an application for PII is sought.[2]
  • Before making an application for PII, prosecutors should aim to disclose as much of the material as they properly can (for example, by giving the defence redacted or edited copies or summaries).[3] The prosecution should always consider whether the material could instead be redacted and therefore disclosed without the sensitive element, or whether admissions can be made to cover the relevant issues.
  • The prosecutor should oversee the editing or redacting of any item that would otherwise, without the redaction, be the subject of an application for PII. If the prosecutor considers it necessary, advice may be sought from counsel regarding the appropriate redaction. Where another member of the case team has carried out the redaction, the final redacted version will still require the prosecutor’s approval. This action will need to be recorded in the Disclosure Decision Log.
  • If the prosecutor does not consider that the material can be redacted or edited without impacting on that aspect of the material that requires disclosure, consideration will need to be given to summarising the material. All summaries of material that would otherwise meet the test of disclosure should be made available to prosecution counsel and, where appropriate, be the subject of a written advice from prosecution counsel. Where sensitive material cannot be redacted, edited or summarised without impacting on that aspect of the material that meets the test for disclosure, other options should be considered, including formal admissions, amending the charges or presenting the case in a different way so as to ensure fairness.
  • Where the material that meets the test for disclosure cannot appropriately be disclosed by the other means mentioned above (e.g. redaction or editing) then the prosecutor should seek an order from the court approving the non-disclosure of the material on the grounds of PII. This should only be done where the prosecutor considers that the accused can still have a fair trial despite the non-disclosure of the material

The Attorney General’s Guidelines on Disclosure for investigators, prosecutors and defence practitioners 2013 (AG Guidelines), state as follows:-

“If prosecutors conclude that a fair trial cannot take place because material which satisfies the test for disclosure cannot be disclosed, and that this cannot be remedied by the above procedure; how the case is presented; or by any other means, they should not continue with the case.”[4]

Sensitive material generated by, supplied by or held by another Government Department

All material generated by, supplied by or held by another government department should be handled for the purposes of disclosure in accordance with that government department’s expectations.

Where sensitive material was generated by, supplied by or is held by another government department and this material is considered by the prosecutor to meet the test for disclosure, the following procedure must be followed:

  • The government department must be informed of the prosecutor’s view that the material meets the test for disclosure.
  • If the prosecutor considers that, through redacting, editing or summarising, the material can be disclosed without risking serious prejudice to an important public interest, the government department should still be informed of this and their views sought.
  • Where the prosecutor considers that an application should be made for PII, the prosecutor should liaise with the government department to determine whether the prosecutor will make the application for PII or the government department will make the application for PII. Equally, if the prosecutor considers that the material which would otherwise be considered sensitive should be disclosed without making an application for PII, the government department should be consulted and given the opportunity to make an application for a PII certificate.

Making the Application for Public Interest Immunity

In R v H [2004] UKHL 3 (HL) (at paragraph 36), the following factors were indicated as requiring consideration by court when addressing such a PII application:

  1. What is the material which the prosecution seek to withhold? This must be considered by the court in detail.
  2. 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 (3), (4) and (5) below) be ordered.
  3. 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.
  4. 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 give adequate protection to the public interest in question and also afford adequate protection to the interests of the defence? This question requires the court to consider, with specific reference to the material which the prosecution seek to withhold and the facts of the case and the defence as disclosed, whether the prosecution should formally admit what the defence seek to establish or whether disclosure short of full disclosure may be ordered. This may be done in appropriate cases by the preparation of summaries or extracts of evidence, or the provision of documents in an edited or anonymised form, provided the documents supplied are in each instance approved by the judge. In appropriate cases the appointment of Special Counsel may be a necessary step to ensure that the contentions of the prosecution are tested and the interests of the defendant protected (see para 22 (of the case)). In cases of exceptional difficulty the court may require the appointment of Special Counsel to ensure a correct answer to questions (2) and (3) as well as (4).
  5. Do the measures proposed in answer to (4) represent the minimum derogation necessary to protect the public interest in question? If No, the court should order such greater disclosure as will represent the minimum derogation from the golden rule of full disclosure.
  6. If limited disclosure is ordered pursuant to (4) or (5), may the effect be to render the trial process, viewed as a whole, unfair to the defendant? If Yes, then fuller disclosure should be ordered even if this leads or may lead the prosecution to discontinue the proceedings so as to avoid having to make disclosure.
  7. If the answer to (6) when first given is No, does that remain the correct answer as the trial unfolds, evidence is adduced and the defence advanced?

It is important that the answer to (6) should not be treated as a final, once-and-for-all answer but as a provisional answer which the court must keep under review.

PII Hearings

There are three types of procedure. They vary in the degree of defence involvement.

  • Type One – under this procedure the prosecution must give notice to the defence that they are applying for a ruling before the court and must indicate to the defence the category at least of material sought to be withheld. The defence may then make representations to the court
  • Type Two – this procedure should be followed for material where disclosure even of the category of material would reveal information which the prosecution contend should not be revealed. The prosecution must notify the defence that an application to the court is to be made but provide no further information. The hearing will then be ex parte, i.e. the defence will not be present.
  • Type Three – this procedure applies in exceptional instances where to reveal even the fact of a court application would reveal the nature of the material in question (i.e. notice of the application will disclose what the prosecutor thinks ought not be disclosed). The defence are therefore not notified of the application at all.

It is common practice for prosecution Counsel to prepare a skeleton argument to assist the judge in understanding the basis on which PII is claimed. The Judicial Protocol on the Disclosure of Unused Material in Criminal Cases (the Judicial Protocol) makes clear that:

“When the PII application is a Type 1 or Type 2 application, proper notice to the defence is necessary to enable the accused to make focused submissions to the court and the notice should be as specific as the nature of the material allows. It is appreciated that in some cases on the generic nature of the material can be identified.”[5]

At any application for PII, the court will wish to review the material over which the order is sought. The Judicial Protocol states that unless the material is very short then the prosecution should supply securely sealed copies of the material that will be the subject of the PII application in advance of the application unless the material is so sensitive that this cannot be done.  The prosecution may make representations to the court as to what it feels may need to be redacted or otherwise edited but ultimately the decision on the extent of the order as to what ought not to be disclosed is for the court to rule upon.

Rule 15.3 of the Criminal Procedure Rules sets out the procedure to be followed when applying to the court for a hearing on PII. The application to the court must be in writing to the court officer, any person who the prosecutor thinks would be directly affected by the disclosure of the material and on the defendant (save where the application falls within Type Three above).

The application must:

  • include a short statement describing the material and explaining the relevance of each document[6]
  • explain why the prosecutor considers that:
    • the material meets the test for disclosure
    • it would not be in the public interest to disclose that material; and
    • no measure such as the prosecutor’s admission of any fact, or disclosure by summary, extract or edited copy, would adequately protect both the public interest and the defendant’s right to a fair trial

In conducting this task the use of merely formulaic expressions is to be discouraged.[7]  In cases of complexity a schedule of the material should be provided, identifying the particular objection to disclosure in relation to each item and leaving a space for the judge’s decision.[8]

  • omit from the application that is served on the defendant anything that would disclose what the prosecutor considers ought not be disclosed.
  • where no part of the application is served on the defendant, why this is the case.
  • where only part of the application is served on the defendant, the prosecutor must:
    • mark the other part, to show that it is only for the court (to ensure that the court does not inadvertently disclose that material).
    • In the other part, explain why the prosecutor has withheld it from the defendant.

The court may direct the prosecutor to serve the application on the defendant or on any other person the court considers would be directly affected by the disclosure of the material. The court officer will not give notice to anyone of the PII application (unless the prosecutor has served the application on that person) or of the court’s decision on the application unless so ordered by the court.

The hearing must be in private unless the court directs otherwise, and may take place wholly or in part in the defendant’s absence. Where the defendant is permitted to be present at the hearing, the court will hear representations from the parties in accordance with the procedure set out in the relevant Criminal Procedure Rules. The application should be recorded, even if it is held in private or in secret.[9]

The prosecutor will need to consider whether it is appropriate for the court to retain a copy of the application or whether the application should be retained by the SFO (or another government department). Where it is appropriate for the court to retain copies of the material:-

“The recording, copies of the judge’s orders (and any copies of the material retained by the court) should be clearly identified, securely sealed and kept in the court building in a safe or locked cabinet consistent with its security classification, and there should be a proper register of the contents. Arrangements should be made for the return of the material to the prosecution once the case is concluded and the time for an appeal has elapsed.”[10] 

Special Counsel

Special Counsel is independent counsel who argues for the defence case in a PII hearing without revealing the sensitive issues that he or she has heard about in court to the defence. The role arose from the argument that the prosecution’s application for a private hearing was a breach of a defendant’s right to a fair trial.

The appointment of Special Counsel is a decision for the court. Special Counsel should only be appointed in exceptional circumstances when the interests of justice demand it.

In practice, the court should contact the Attorney General’s Office to invite the Attorney General to appoint an advocate to the court i.e. Special Counsel. The SFO has no responsibility for any invitation to appoint such an advocate, the provision of instructions to them or the payment of any fees incurred by the appointment.

Special Counsel in Type Two Hearings

The following procedure should be followed on an application for the non-disclosure of material on the basis of PII in Type Two hearings:

  • Prosecution Counsel should make oral submissions in support of the application.
  • Special Counsel may seek information from the defence for the purpose of the application.
  • Special Counsel should examine the material.
  • Where additional matters require clarification, arrangements may be made to allow Special Counsel to agree written questions with the SFO for response by the defence.
  • Having obtained, or having sought to obtain, information from the defence, Special Counsel should be invited by the court to make submissions to the court on the question of disclosure. These submissions should be made in the presence of the prosecution but in the absence of the defence.
  • Having heard submissions from Special Counsel and the SFO, the judge may invite the defence into court and allow them to make submissions on the question of disclosure.
  • Having heard submissions from the SFO, Special Counsel and the defence, the judge should rule on the SFO’s claim for PII.

Special Counsel in Type Three Hearings

The following procedure should be followed on an application for the non-disclosure of material on the basis of PII in Type Three hearings:

  • Prosecution Counsel should make oral submissions in support of the application.
  • Special Counsel should examine the material.
  • Special Counsel should be invited by the judge to make submissions to the court on questions of disclosure on the basis of the information available to the court.
  • Having heard submissions from the SFO and Special Counsel, the judge should rule on the SFO’s claim for PII.
  • Disclosure should be kept under review, as in all cases. If relevant information comes to light during the course of the trial the judge should be invited to reconsider the question of disclosure and Special Counsel should be invited to return to court to make further submissions.

[1] Attorney General’s Guidelines on Disclosure for investigators, prosecutors and defence practitioners 2013 (AG Guidelines), paragraph 66

[2] AG Guidelines, paragraph 66

[3] AG Guidelines, paragraph 65

[4] AG Guidelines, paragraph 69

[5] Judicial Protocol on the Disclosure of Unused Material in Criminal Cases, paragraph 55(b).

[6] Judicial Protocol on the Disclosure of Unused Material in Criminal Cases, 55(d)

[7] Judicial Protocol on the Disclosure of Unused Material in Criminal Cases, 55(d)

[8] Judicial Protocol on the Disclosure of Unused Material in Criminal Cases, 55(d)

[9] Judicial Protocol on the Disclosure of Unused Material in Criminal Cases, 55(e)

[10] Judicial Protocol on the Disclosure of Unused Material in Criminal Cases, 55(f).

Version OGW 1, Published February 2018 © Crown Copyright, 2020.

This information is licensed under the Open Government Licence v3.0. To view this licence, visit http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/ or write to the Information Policy Team, The National Archives, Kew, Richmond, Surrey, TW9 4DU.

Any enquiries regarding this publication should be sent to the Serious Fraud Office, 2-4 Cockspur Street SW1Y 5BS email: information.officer@sfo.gov.uk