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Annex D - Disclosure Manual

Sensitive material letters and forms

D1 - Letter to court requesting listing for PII hearing - Type I Applications

Specimen letter

The Court Manager
Crown Court

Dear Sir,

R v [insert name(s) of defendant(s)]
[insert court details] Crown Court
Indictment no. [insert Indictment number]
Date of trial: [insert trial date where known]

In the case against the above named, the prosecution wish to make application to assert PII in relation to sensitive material which has been retained. It is intended to provide notice of the application to the defence and to advise them of the categories of the material which will be the subject of the application.

I would be grateful if you could arrange for the application to be listed before the trial judge, HHJ. [Insert details of trial judge where known] and provide me with details of the hearing so that I can serve notice on the defence.

The estimated length of the hearing is [insert time estimate]

Yours faithfully,

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D2 - Letter to court requesting listing for PII hearing - Type II applications

Specimen letter

The Court Manager
Crown Court

Dear Sir,

R v [insert name(s) of defendant(s)]
[insert court details] Crown Court
Indictment no. [insert Indictment number]
Date of trial: [insert trial date where known]

In the case against the above named, the prosecution wish to make application to assert PII in relation to sensitive material which has been retained. It is intended to provide notice of the application to the defence but not to advise them of the categories of the material which will be the subject of the application.

I would be grateful if you could arrange for the application to be listed before the trial judge, HHJ [insert details of trial judge where known] and provide me with details of the hearing.

Details of the hearing should not be included on any published court list for the day of the hearing.

The estimated length of the hearing is [insert time estimate]

Yours faithfully,

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D3 - Letter to court requesting listing for PII hearing - Mixed Type I & Type II applications

Specimen letter

The Court Manager
Crown Court

Dear Sir,

R v [insert name(s) of defendant(s)]
[insert court details] Crown Court
Indictment no. [insert Indictment number]
Date of trial: [insert trial date where known]

In the case against the above named, the prosecution wish to make application to assert PII in relation to sensitive material which has been retained. It is intended to provide notice of the application to the defence and to advise them of the categories of some, but not all, of the material which will be the subject of the application.

I would be grateful if you could arrange for the application to be listed before the trial judge, HHJ [insert details of trial judge where known] and provide me with details of the hearing so that I can serve notice on the defence.

The estimated length of the hearing is [insert time estimate]

Yours faithfully,

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D4 - Letter to court requesting listing for PII hearing - Type III applications

Specimen letter

CONFIDENTIAL

The Court Manager
Crown Court

Dear Sir,

R v [insert name(s) of defendant(s)]
[insert court details] Crown Court
Indictment no. [insert Indictment number]
Date of trial: [insert trial date where known]

In the case against the above named, the prosecution wish to make application to assert PII in relation to sensitive material which has been retained. The nature of the material which the court will be asked to consider is such that notice of the application cannot be given to the defence.

I would be grateful if you could arrange for the application to be listed before the trial judge, HHJ. [insert details of trial judge where known] and provide me with details of the hearing.

Details of the hearing should not be included on any published court list for the day of the hearing. The defence must not be notified of the prosecution application.

The estimated length of the hearing is [insert time estimate]

Yours faithfully,

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D5 - Notice of application in relation to a PII hearing - Type II applications

Specimen letter

IN THE CROWN COURT AT [insert court details]

INDICTMENT NO: [insert Indictment number]

REGINA

V

[insert names of defendants]

TAKE NOTICE that the prosecution will apply to HHJ [insert details of judge] sitting at [insert details of court] Crown Court for a ruling that certain material retained by the prosecution is subject to public interest immunity from disclosure and should be withheld from the defence.

In relation to this material, the prosecution propose to make submissions to the court ex parte. The prosecution are unable to provide any further information in relation to this material.

The defence are invited to provide further particulars of their case to inform the prosecutor and the judge in their assessment of the potential value of the retained material to the defence case.

Signed....................................
Name [insert name of reviewing prosecutor]
Dated this      day of      200

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D6 - Notice of application in relation to a PII hearing - Type I and 'mixed' Type I & Type II applications

Specimen letter

IN THE CROWN COURT AT [insert court details]

INDICTMENT NO: [insert Indictment number]

REGINA

V

[insert names of defendants]

TAKE NOTICE that the prosecution will apply to HHJ [insert details of judge] sitting at [insert details of court] Crown Court on [insert date] at [insert time] for a ruling that certain material retained by the prosecution is subject to public interest immunity from disclosure and should be withheld from the defence.

In relation to the following items of unused material, the prosecution agree that the defence should be permitted to attend the hearing and make representations inter partes:

[Insert here such details in relation to the material which you are able to provide without revealing that which you contend it is not in the public interest to disclose.]

In addition to these items, there are further items of retained unused material in respect of which the prosecution propose to make submissions to the court ex parte. The prosecution are unable to provide any further information in relation to these items.

The defence are invited to provide further particulars of their case to inform the prosecutor and the judge in their assessment of the potential value of the retained material to the defence case.

Signed....................................
Name [insert name of reviewing prosecutor]
Dated this      day of      200

delete if inapplicable

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D7 - Specimen background submission in support of application for PII

Specimen letter

CONFIDENTIAL

IN THE CROWN COURT AT [insert court details]

INDICTMENT NO: [insert Indictment number]

REGINA

V

[insert names of defendants]

SUBMISSION IN SUPPORT OF APPLICATION FOR PUBLIC INTEREST IMMUNITY

BACKGROUND

The defendants are charged with ...[set out charges]

The prosecution case is ...[summarise nature of case, and what the principal evidence is or is based upon].

The full circumstances of the evidenced case are set out in the draft Opening Note, a copy of which is attached.

CHRONOLOGY OF RELEVANT EVENTS

Set out a detailed chronology listing key people and events so the court has an accurate picture of the context in which PII is said to arise.

MATERIAL TO BE WITHHELD

The prosecution seek to withhold from disclosure...

[List the items of material that the prosecution seek PII immunity]

WHETHER THE MATERIAL SATISFIES THE DISCLOSURE TEST

Prosecution material is disclosable, subject to arguments as to PII, if it might reasonably be considered capable of undermining the prosecution case against the accused or of assisting the case for the accused. Such material will include anything that tends to show a fact inconsistent with the elements of the case that must be proved by the prosecution. (Attorney General's Guidelines 2005). Material can be considered to be disclosable by the use that could be made of it in cross-examination or by its capacity to support submissions which could lead to the exclusion of evidence, a stay of proceedings or a court or tribunal finding that any public authority had acted incompatibly with a defendant's rights under the Human Rights Act 1998, or by its capacity to suggest an explanation or partial explanation of the accused's actions.

Set out details of why it is considered that material satisfies the disclosure test.

Set out details of any apparent defence by reference to the defence statement, the record of interview or from any other source, and how this impacts on the assessment of what material satisfies the disclosure test.

PUBLIC INTEREST IMMUNITY (PII)

Where the identity of a CHIS is material sought to be withheld then the following paragraphs may be used.

It is a long established principle that the prosecution should not be required to disclose material which would reveal the identity of an intelligence source unless not to do so might give rise to a miscarriage of justice by denying the defence a legitimate opportunity to cast doubt on the case against them.

The prosecution contend that there is nothing in the material sought to be withheld that would enable the defence to cast doubt on the case against them. Thus, the public interest in protecting the anonymity of intelligence sources is not overridden.

Where other public interests are in play, set out the nature of that interest. Reference should be had to paragraph 8.4 of this manual.

DEFENCE STATEMENTS

Set out details of any defence(s) in the defence statement(s).

Where no defence statement has been received, the following may be used:

Defence statements have not been received from the defendant(s) and the Crown have written to the defence reminding them of the requirement to provide a defence statement and pointing out the possible consequences of failing to do so. Nevertheless it has been possible to discern that the above material might satisfy the test for disclosure as outlined above.

TYPE OF APPLICATION

Set the Crown's assessment of what type of hearing is required and giving reasons why. Reference should be had to paragraphs 13.5 - 13.9 of this manual.

In Type II cases the following may be used:

A Type II application is required in relation to the material to be considered by the judge. In relation to all items, the defence cannot be told anything about these documents without revealing that the prosecution contend it is not in the public interest to disclose.

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D8 - Specimen PII submission (item specific)

Specimen form

CONFIDENTIAL

Item No: [insert MG6D reference number]

DESCRIPTION

Insert concise and accurate details of the material

WHETHER THE ITEM SATISFIES THE DISCLOSURE TEST

Set out why the material is said to satisfy the disclosure test

PUBLIC INTEREST IMMUNITY

The prosecution contend that it is not in the public interest to disclose [insert details of why it is contended the material is sensitive (see chapter 8) and why it is said the material should be withheld (see chapters 8 and 13), in other words, why the public interest in withholding it outweighs the public interest in disclosure. This should include the prosecutor's assessment of the value of the material to the defence case.]

Item No: [insert MG6D reference number]

List any further items in the same way

OUTCOME

Record outcome of the judge's ruling and any reasons given here

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D9 - Specimen front sheet to judges bundle on PII application

Specimen form

REGINA

V

[List defendant(s) here]

APPLICATION IN RELATION TO PUBLIC INTEREST IMMUNITY

Enclosures:

  1. Notice of Hearing
  2. Background submission
  3. Specific submissions
  4. Copy defence statement(s)
  5. Copy further particulars of defence case submitted on behalf of [insert details of any defendants who have provided further details of their case for the purpose of securing disclosure.]
  6. [Insert details of any further documents submitted.]

....................................
[Insert here the name of the person who has prepared the written submission.]

Date ...................

....................................
[Insert here the name of the CPS unit head or SCL who has approved the written submission if different from the person who has prepared it.]

Date ...................

I confirm that to the best of my knowledge and belief the factual assertions on which the attached submissions are based are true.

....................................
[Insert name of senior officer - DI or above - who has approved the submissions.]

Date ...................

The court is asked to note the Confidential/Secret/Top Secret classification applied to this material and to ensure that the material is kept securely at all times.

delete if inapplicable

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D10 - PII submissions - table format

Specimen letter

CONFIDENTIAL

R v [Insert name(s) of defendant(s)]

PII SUBMISSIONS

ITEM DESCRIPTION DISCLOSABILITY PUBLIC INTEREST IMMUNITY OUTCOME
D[ ] Insert concise and accurate details of the material. Set out why the material is said to satisfy the disclosure test. The prosecution contend that it is not in the public interest to disclose [insert details of why it is contended the material is sensitive (see chapter 8) and why it is said the material should be withheld (see chapters 8 and 13), in other words why the public interest in withholding it outweighs the public inters in disclosure. This should include the prosecutor's assessment of the value of the material to the defence case]. Record outcome of judge's ruling and any reasons given here.

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