Investigations and relevant material
Disclosure of unused material in criminal proceedings
An "investigation"
1. Section 22 of the CPIA together with the Code provide that an investigation is "an investigation conducted with a view to it being ascertained:
- whether a person should be charged with an offence, or
- whether a person charged with an offence is guilty of it."
Charging a person with an offence includes prosecution by way of summons or postal requisition. This will include investigations into crimes that have been committed, investigations whose purpose is to ascertain whether a crime has been committed, with a view to the possible institution of criminal proceedings, and investigations which begin in the belief that a crime may be committed.
Although the Code refers to duties imposed on police officers, section 26 of the CPIA provides that any other person charged with the duty of conducting such an investigation shall have the same regard to the Code as a police officer.
2. The statutory scheme for disclosure of unused material under the CPIA applies to all "investigations" which begin after 1 April 1997. This scheme is amended by the CJA 2003 and the revised scheme should be applied to all investigations which commenced on or after 4 April 2005. Legal Adviser's Office should be consulted if an inspector is dealing with disclosure in an investigation which began before 1 April 2005. In addition, the procedure for disclosure of unused material in relation to offences dealt with in the magistrates' court has been amended by the revised Code[166] which applies to investigations begun on or after 19 March 2015. Inspectors should ensure that they refer to the Code(s) applicable to their investigation.
3. Inspectors undertake many routine inspections. Such an inspection could develop into an investigation under the CPIA, for example if an inspector considers that the circumstances may warrant the investigation of a potential offence that could lead to a prosecution. It is therefore best practice to have CPIA considerations in mind at an early stage.
4. Additionally, information collected for other enforcement purposes (for example, to justify the issue of an enforcement notice) should be treated as if the information had been obtained under an investigation. This is because legal proceedings may result if there is a failure to comply with the notice, or even if the notice is complied with, there may be a prosecution arising out of the incident.
Duty to retain "relevant material"
5. The Code imposes a duty to retain material that the investigator obtains in the course of the investigation, as well as material that is generated by the investigation, providing it may be relevant to the investigation.
6. Relevance of material – the test for relevance is contained in the Code: material is relevant if "it appears to the investigator, officer in charge or disclosure officer that it has some bearing on any offence under investigation or person being investigated, or on the surrounding circumstances of the case, unless it is incapable of having any impact on the case". This must be considered from both the perspective of the prosecution and the defence, in accordance with the requirement to pursue all reasonable lines of inquiry.
7. All material obtained in the course of an investigation will need to be considered in order to assess its relevance to the investigation. The definition includes material from specialist inspectors and experts, including material held at HSL. It includes material created by an investigator that indicates the approach that has been adopted in relation to the investigation and why. It covers items such as documents and objects, but also e-mails and electronic media. You should consider searching archive material across HSE where there may be disclosable material held, especially if HSE's prior role in relation to a dutyholder is an issue. For investigations begun on or after 19 March 2015, it includes material inspected as well as obtained during the course of the investigation.
8. Once a decision has been made as to relevance, the material will then require further consideration as to whether it satisfies the disclosure tests. Guidance on this test is can be found at Disclosure stages[167].
9. If you are unsure whether or not material is relevant you should obtain advice through your line management chain. If there is continuing doubt you should take advice from the solicitor agent appointed for the prosecution, if there is one, or Legal Adviser's Office setting out why you believe the material is incapable of having an impact on the case.
Recording of information
10. If material that may be relevant consists of information which is not recorded in any form, the officer in charge of the investigation must ensure that it is recorded in a durable and retrievable form (whether in writing, on video or audio tape, or on computer disc). This includes material which constitutes negative information.
11. It should normally be recorded at the time it is obtained (or, where appropriate, inspected) or as soon as practicable after that time. This does not require an investigator to take a statement from a potential witness where it would not otherwise be taken. All relevant material gathered during an investigation should be recorded on HSE's Material and Evidence Management Tool (MEMT), making an initial classification of it as evidence or non sensitive or sensitive unused material. These classifications can be reviewed as the investigation progresses, but MEMT should then be used to assemble the bundle of evidence and the unused material schedules once proceedings are commenced. Clearly non-relevant material should not be scheduled, but if an inspector is in doubt when making an initial classification, it is best to schedule the material and mark it relevant, as if it proves to be non-relevant once the investigation is complete, MEMT does have a "non-relevant" option so the material can be re-classified.
12. Careful recording of material that may be relevant will ensure that material is available for disclosure if it meets the disclosure tests. In practice this will mean that:
- telephone notifications of accidents, complaints, etc should be recorded;
- draft statements (whether or not they differ significantly from the final version) and comments on them should be recorded; and
- care will be required over the recording of information in inspectors' notebooks.
13. The Code specifically mentions the need to record "negative information" that may be relevant to an investigation. An example is where an inspector finds in the course of an inspection that one machine is defective, but all the other similar machines are found to have nothing wrong with them. This "negative information" must be recorded, as it is potentially relevant to a prosecution, particularly the sentencing process. Similarly, a decision not to pursue a particular line of inquiry should be recorded, with the reasons for the decision.
Retention of material
14. The investigator must retain material obtained in an investigation which may be relevant to the investigation. The duty to retain material that may be relevant applies to:
- material obtained by the investigator in the course of the investigation; and
- material that is "generated" in the course of the investigation, for example interview records.
If the investigator 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, they should, wherever practicable, take steps to obtain it or ensure that it is retained for further inspection or for production in court if required.
15. The Code lists categories of material falling within the duty to retain. Examples of categories of material that must be retained, where the material may be relevant, are:
- accident reports and notebooks
- records from telephone messages containing descriptions of an alleged offence
- emails and electronic internal documents (memos etc)
- final versions of witness statements
- draft versions of witness statements
- exhibits mentioned in a witness statement
- interview records (written/audio/video tapes of interviews with actual/potential witnesses or suspects)
- communications between inspectors and experts (including requests to clarify a draft report, remove ambiguities, or to cover additional material)
- reports of work carried out by experts (including draft reports and working notes)
- schedules of scientific material prepared for the purposes of criminal proceedings
- any material casting doubt on the reliability of a witness, of a confession or on the accuracy of any prosecution evidence generally
- any material which may point to another person or body having involvement in the commission of the offence
- any material which may support a defence or an application to have any prosecution stayed as an abuse of process (for example because of delay)
- any material which may have bearing on the admissibility of any evidence
- any digital material obtained in the course of an investigation and not returned to the owner after copying, including hard drives or imaged material, computerised records, information from data recorders, photographs or videos;
- any other material that may fall within the test for initial disclosure
16. If material that may be relevant is not retained, the prosecution case may be weakened or put at risk by defence submissions alleging non-disclosure of material. The defence may even seek to have the prosecution struck out on the ground of abuse of process and as part of this may argue that it is impossible to hold a "fair trial" pursuant to the provisions contained in Article 6 of the ECHR.
Period of retention
17. All material that may be relevant must be retained until a decision is taken whether to prosecute a person for an offence.
18. If a prosecution is commenced, all material that may be relevant must be retained until:
- the accused is acquitted; or
- the accused is convicted; or
- the prosecutor decides not to proceed with the case.
19. If a prosecution results in a conviction, all material that may be relevant must be retained in accordance with the provisions of the Code:
- for six months from the date of conviction, if the court imposes a non-custodial sentence; or
- for six months or until a convicted person is released from custody, whichever is longer, if the court imposes a custodial sentence; or
- until an appeal against conviction is determined, if longer than six months or any custodial period.
In addition, HSE's Records Management and Retention policy together with its Business Classification Scheme must be adhered to when deciding how long to retain any material.
20. Material need not be retained if it was obtained but is then to be returned to its owner, for example because it is not relevant or because it has been copied. After conviction inspectors may consider handing back material or equipment, providing the person concerned agrees in writing to retain it for the retention period.
Storage facilities
21. Material that may be relevant should be clearly labelled using HSE evidence bags, labels or tags, as appropriate (see Operational Guidance: Material and evidence management (collection, retention and disposal)[168]). Material should then be stored in designated secure storage facilities. All material relating to a particular case should, so far as possible, be kept in one place so that the disclosure officer can review the material as a whole. In deciding how to store the material, investigators and disclosure officers should act in accordance with current departmental guidance, taking into account the security classification of the material.