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Annex B - Disclosure Manual

An explanatory note on the principles and procedures relating to third parties under the Criminal Procedure and Investigations Act 1996 and the disclosure of material in their possession

Introduction

1. This note explains the procedures to be followed by the prosecution in seeking to obtain relevant material held by individuals and organisations that are regarded as third parties in criminal proceedings.

2. The law governing material held by third parties is contained in the Criminal Procedure and Investigations Act 1996, as amended (the CPIA 1996) and the Attorney General's Guidelines.

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Who are third parties?

3. In the course of an investigation to determine whether an offence has been committed, the police may become aware of relevant material in the possession of persons or organisations which may have a bearing on the investigation. It is only the investigator and the prosecutor who have statutory duties of revelation and disclosure under the CPIA 1996. All other categories of persons are third parties so far as the conduct of the case is concerned.

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The legal requirements of the prosecution

4. Every accused person has a right to a fair trial, a right enshrined in our law and guaranteed under the European Convention on Human Rights. This right to a fair trial is fundamental and the accused's right to fair disclosure is an inseparable part of it.

5. The scheme set out in the CPIA 1996 is designed to ensure that there is fair disclosure of material to the accused which may be relevant to an investigation and which does not form part of the prosecution case. This is known as 'unused material.' Fairness does, however, recognise that there are other interests that need to be protected, including those of the victims and witnesses who might otherwise be exposed to harm. The CPIA 1996 protects those interests.

6.Investigators are under a duty to pursue all reasonable lines of enquiry, whether these point towards or away from the accused. What is reasonable in each case will depend on the particular circumstances. Investigators and prosecutors must do all they can to facilitate proper disclosure, as part of their general and professional responsibility to act fairly and impartially, in the interests of justice.

7.Where you possess material, which has not been obtained by the police, they are under a duty to inform you of the existence of the investigation and to invite you to retain the material in case they receive a request for its disclosure. Where the police inspect material with your agreement and do not retain it, they are under a duty to record details of that material and to reveal it to the prosecutor.

8. Where you do not allow the prosecution access to the material, the prosecution or defence may apply to the court for a witness summons, which if granted would require you to attend court to produce the material to the court. Application for a witness summons will only be made where the prosecution or defence considers that the material sought is likely to be material evidence in the proceedings. You do have the right to make representations to the court against the issue of a witness summons.

9. Where the relevant material held by you or owned by you but in the possession of the prosecution is sensitive, in that it is not in the public interest to disclose, then the prosecution will treat that material in confidence. Where that material satisfies the disclosure test a public interest immunity application must be considered to prevent disclosure to the defence. Where you have an interest in that material and an application is considered appropriate, the prosecution is under a duty to notify you in writing of the time and place of any public interest immunity application. You have a right to make representations to the court.

10. If a Court, on hearing an application for public interest immunity determines that the material in question should be disclosed to the defence, the interests of justice require, in appropriate cases the prosecution to terminate the proceedings rather than make such disclosure.

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Specimen letter B1 - Letter to third parties

[date]

Dear Sir/Madam

REQUEST FOR DISCLOSURE OF MATERIAL HELD BY (    )

(    ) Police are conducting a criminal investigation into allegations made against (name and address, if appropriate, of the alleged offender).

The allegations being investigated are, in general terms, that (set out the nature of the allegations and the issues in the case).

I believe that you hold material that may be relevant to the investigation, namely (set out what material it is believed the third party holds).

The reasons why I am seeking access to this material are because I believe that (list the reasons which may include material which might affect the credibility and reliability of a witness, or material which might reasonably be considered capable of undermining the prosecution case or of assisting the case for the accused).

I would be grateful if you could confirm whether

  • you hold any such material
  • you are prepared to supply it or allow me to inspect it for the purposes of the investigation
  • you consider the material to be sensitive and the reasons for any sensitivity.

Please also

  • list all additional material that you hold in relation to this case so that I may assess whether it too is relevant material that I should inspect
  • tell me whether you object to allowing me access to any of the material
  • specify your reasons for any objections
  • retain the material in case the court requires you to disclose some or all of the material.

I enclose for your assistance, an explanatory note that sets out the role of the prosecution in dealing with material in the possession of third parties and a pro forma reply that may assist you in your response. Please feel free to amend it as appropriate.

Please could you reply by (insert date).

If you wish to discuss this request, or require any further information, please contact me on the above number.

Yours faithfully,

(Officer in charge of the investigation/investigator/disclosure officer)

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Specimen letter B2 - Proforma response to investigators to include with letter to third parties

Dear (insert name of requesting officer)

R v (insert name of case) - REQUEST FOR MATERIAL

I acknowledge receipt of your letter dated   ...   requesting material held by (name of organisation) that may be relevant in the above criminal proceedings.

I confirm that:

  • We do/do nothold material that may be relevant to the investigation as set out in the above-mentioned letter. (Please list material)
  • We are/are not prepared to supply it or allow you to inspect it for the purposes of the investigation. (Please give reasons as appropriate.)
  • We do/do not consider the material to be sensitive. The reason the material is sensitive is because (please set out any reason why you consider the material to be sensitive).

Further, we hold the following additional material so that you may assess whether it too is material that is relevant to your investigation: (Please list material)

We object to allowing you access to any of our material because (set out reasons as appropriate).

We will retain the material in case the court requires us to disclose some or all of the material.

Yours sincerely,

 

For and on behalf of
(name of organisation).

delete as appropriate

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