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Chapter 11: Receipt and Review

11.1. Prosecutors must do all that they can to facilitate proper disclosure, as part of their general and personal professional responsibility to act fairly and impartially, in the interests of justice. Prosecutors must also be alert to the need to provide advice to disclosure officers on disclosure issues and to advise on disclosure procedure generally.

11.2. In order to carry out the duties set out in the CPIA 1996, the prosecutor will need to consider the schedules of unused material and copies of any items supplied by the police to see if the disclosure test is satisfied.

11.3. The prosecutor must apply the disclosure test contained in the CPIA 1996. The test is an objective one. To comply, the prosecutor must disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, save to the extent that the court, on application by the prosecutor, orders it is not in the public interest to disclose it.

11.4. Prosecution material is defined in the CPIA 1996 in section 3(2) and is material which is in the prosecutor's possession, and came into his possession in connection with the case for the prosecution against the accused, or which the prosecutor has inspected under the provisions of the Code of Practice in connection with the case against the accused.

11.5. The lead disclosure officer is the first point of contact for all enquiries regarding the contents of the schedules and access to the material which has not been copied. It is important to liaise closely with the disclosure officer, and to consult regularly during the disclosure process.

11.6. When a full file is submitted the prosecutor should expect to receive from the police:

  • an MG6
  • an MG6B where required
  • a schedule of non-sensitive material (MG6C)
  • a schedule of sensitive material (MG6D) or nil return
  • copies of disclosable sensitive material (where appropriate)
  • copies of the crime report and log of messages (edited where appropriate)
  • all material that the disclosure officer believes satisfies the disclosure test and a brief explanation for that belief (on the MG6E)
  • certification by the disclosure officer (on the MG6E).

11.7. The schedules and any accompanying material should be brought to the attention of the prosecutor as soon as possible. The prosecutor should carry out a review of the schedules and the material received in accordance with the procedures set out below.

11.8. The prosecutor should examine the schedules carefully to check for possible omissions from them. If there are any omissions, the prosecutor should ask the disclosure officer to provide a continuation schedule, but should not delay disclosure. Where there are apparent errors on the schedules, the prosecutor should seek further details from the disclosure officer, and return the schedules for correction. If, following this, the prosecutor remains dissatisfied with the quality or content of the schedules, the matter must be raised with a senior officer and persisted with if necessary.

11.9. The date of receipt of the schedules and any accompanying material must be recorded on the disclosure record sheet.

11.10. Where the sensitive material has been given a protective marking of Confidential, Secret or Top Secret, the material and/or schedule should be kept securely off file. A note should be made on the disclosure record sheet identifying the existence and location of the material stored off file. It is suggested that where there is both Restricted and Confidential sensitive material, then all sensitive material should be kept together off file.

11.11. If copies of sensitive material are sent by the disclosure officer with the MG6D, care must be taken to ensure that the material is handled in accordance with its protective marking category. Appropriate arrangements will need to be made for the handling of any sensitive material that is given to the prosecution advocate.

11.12. Where the prosecutor considers that material that has been described on the form MG6D is not in fact sensitive and should be described on the form MG6C, the disclosure officer must be consulted to ensure that the matter is resolved.

11.13. The prosecutor should always inspect the material, whether sensitive or non-sensitive where:

  • it satisfies the disclosure test
  • the description (or the reasons given as to its sensitivity) remain inadequate despite requests for clarification
  • the prosecutor is unsure if the material satisfies the disclosure test.

11.14. A record should be made of all decisions, enquiries or requests and the date upon which they are made, relating to:

  • the disclosure of material to the defence
  • withholding material from the defence
  • the inspection of material
  • the transcribing or recording of information into a suitable form.

This information should be noted on the disclosure record sheet (a specimen is at Annex C). In addition, the disclosure record sheet should be used to record all actions and events that occur in the discharge of prosecution disclosure responsibilities. For sensitive material see relevant paragraphs on Disclosure Record Sheet.

11.15. A single disclosure record sheet should be completed in respect of all unused material, whether sensitive or non-sensitive.

11.16. The review and preparation of unused material for disclosure to the defence should start as soon as possible after it becomes apparent that disclosure will be required. For most Crown court cases this means the review of unused material should take place at the same time as the preparation of committal papers, or preparation of the prosecution case following the sending of an accused to Crown court, so that disclosure can take place immediately after those proceedings. Following a not guilty plea in the magistrates' court, disclosure should take place as soon as possible after a full file has been received. If the file received from the police does not contain all unused material schedules, these should be requested immediately in all cases.

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Reviewing sensitive material

11.17. Where the prosecutor considers that the sensitive material should be disclosed to the defence because it satisfies the disclosure test, the police (or any person having an interest in the material) should be consulted before any final conclusions are reached.

11.18. Where the prosecutor determines that an application to the court is necessary, consultation with the police must take place to establish the proper basis for the application.

11.19. Material may be edited, summarised or formally admitted without compromising its sensitivity. Police and prosecutors should consider at an early stage whether this is possible.

11.20. However, if the prosecutor in editing, summarising or formally admitting, holds back any material that satisfies the test, an application to the court should be made and the approval of the court obtained for any such partial disclosure.

11.21. If any third party, such as social services or the prison service, has an interest in the sensitive material, the prosecutor must ensure that the third party is consulted by the police before a final decision is made. Local protocols may impose further obligations on the prosecutor.

11.22. A note should be made on the disclosure record sheet of any consultation that takes place, and of the conclusions reached, taking care that this does not make the disclosure record sheet exceed the Restricted classification.

11.23. There should be consultation between the prosecutor and the prosecution advocate where there is any question of an application being made to the court to withhold unused material. A record of that consultation should be made, and a note of its location cross-referenced on the disclosure record sheet. PII applications are dealt with under another section in this guidance.

11.24. There will always be a need to consult regarding sensitive material unless the prosecutor is satisfied on the basis of the information provided on the schedule that the material clearly could not satisfy the test for disclosure. Special considerations will apply to the handling of highly sensitive material.

11.25. The disclosure record sheet should be used to record the way in which sensitive unused material has been handled. Its purpose is to record events rather than reasons and entries therefore should not contain sensitive information. Notes of decisions and reasons should be endorsed on the MG6D, or if necessary, on a continuation sheet. Notes of discussions about sensitive material or of PII applications should be kept with the MG6D and the material itself, but there should be a cross-reference on the disclosure record sheet.

11.26. The disclosure record sheet should be used to record all events and actions, which will include the following:

  • receipt of the MG6D
  • that a disclosure review has taken place (the outcome of such reviews will be recorded on the schedule itself)
  • the receipt and review of any addenda to the MG6D
  • contact with the disclosure officer or investigating officer in relation to sensitive unused material
  • receipt of defence statements and further reviews
  • any consultation with the prosecution advocate
  • any discussions with any other parties regarding sensitive unused material such as the court, the defence advocate or third parties
  • receipt of the prosecution advocate's advice in relation to sensitive unused material
  • details of any informal disclosure, should it occur
  • the fact of any PII applications.

11.27. Responding to defence requests for disclosure of sensitive material is dealt with under this heading elsewhere in the guidance. For CHIS disclosure issues, please see the relevant section in this guidance.

Handling and security arrangements

11.28. The handling and security arrangements set out under the heading Handling highly sensitive material should be applied to handling sensitive material.

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