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Chapter 17: File and Information Management

Unused material folder

17.1. For purposes of efficient file management, and to assist in maintaining a clear disclosure audit trail in every case, documentation relating to unused material should be kept in a separate folder within the main case file.

17.2. This documentation should include:

  • all unused material (unless marked Confidential or above) if copies have been provided to the CPS (where volume allows)
  • all disclosure schedules (unless marked Confidential or above)
  • any defence statement(s) and
  • the disclosure record sheet.

17.3. The disclosure record sheet should be completed to record all actions taken in discharging disclosure responsibilities. As such, it should be securely fixed in a readily accessible position within the unused material folder, because it will require periodic endorsement throughout the life of the case.

17.4. In those cases where the large volume of unused material copied to the CPS does not allow for its storage in the unused material folder, a note of its location should be made on the disclosure record sheet.

Protective marking

17.5. Proper handling of sensitive material is of utmost concern to the police and CPS. Protective markings will be applied by police to sensitive material that is revealed to the prosecutor. The relevant category of marking will be Restricted, Confidential, Secret or Top Secret. Once the prosecutor has considered and agreed the marking category appropriate to the level of sensitivity of the document's contents (whether it be the schedule or copy material), the material will be handled according to that classification. CPS Areas should ensure that procedures are put in place for the resolution of any dispute between the prosecutor and the disclosure officer over the appropriate protective marking of material.

17.6. Sensitive material that is Restricted may remain on the file. It will be kept with the schedule and any copy material in the disclosure folder or a sealed envelope within it. Material that is Confidential, Secret or Top Secret, and all related documentation, must be kept off-file in secure storage. Notes of any discussions about sensitive material, with a police officer or the prosecution advocate for instance, should be stored according to the sensitivity of their content. Top Secret material can only be stored within CPS Headquarters.

PII applications log

17.7. A log should be kept within each Trial Unit and Criminal Justice Unit and within HQ Crime Divisions of all PII applications. The log should record the name of the case, the nature, in general terms only, of the sensitive material, the date and type of application and the outcome. The log must be stored securely.

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17.8. The accused is prohibited from using material disclosed under the CPIA 1996 or common law for any purpose other than the criminal proceedings concerned. The only exceptions to this rule are where the permission of the court is obtained, or where the material has been displayed or communicated to the public in open court.

17.9. The accused will be guilty of a contempt of court if this prohibition on the use of unused material is breached. For these purposes, disclosure to the accused includes disclosure to his legal representative, and either may be in breach of the confidentiality provisions of the CPIA 1996.

17.10. All unused material that has been disclosed to the defence is subject to the provisions of section 17 of the CPIA 1996. The effect is to prevent the use of the disclosed material by the accused in anything other than the criminal proceedings that the material was originally disclosed. The material may be used in connection with appeals or any further criminal proceedings arising out of the original case, but anything else requires the approval of the court.

17.11. The case of Taylor v SFO [1998] 4 All ER 801, provides some protection to material which is disclosed other than under the CPIA 1996.

17.12. If the disclosed material is used outside these circumstances, an offence under section 18 of the CPIA 1996 may have been committed. PartS 22 and Part 62 Criminal Procedure Rules govern the procedure where the court is to consider the exercise of power to punish for contempt for an unauthorise. Part 22.8 and Part 62 govern the procedure where the court is to consider the exercise of power to punish for contempt for an unauthorised disclosure under section 18.

17.13. Part 22 of the Criminal Procedure Rules sets out the procedure for the notification and determining of applications by the accused to use the material for other purposes.

17.13A. The court must not permit the use of the material subject to the application unless the prosecutor has had at least 28 days in which to make representations; and the court has taken adequate account of any rights of confidentiality that may apply to the material.

17.13B. On receipt of an application, the prosecutor should obtain the material and consult the author or person who prepared the material, and any known rights holders, in order to properly formulate the prosecutor's response to the application.

Instructions to the prosecution advocate

17.14. The prosecutor has responsibility to ensure that the prosecution advocate is properly instructed on all disclosure issues. Instructions should address fully:

  • any decision the prosecutor has made about the disclosure of material which satisfies the test where the reasons for disclosure are not readily apparent, and enclose copies of any such material or explanatory correspondence
  • any decision the prosecutor has made about sensitive material. In any case where public interest immunity is or may be an issue, the instructions should refer to R v H and C for its valuable analysis of the law
  • the prosecutor's comments on the defence statement
  • the obligation for the prosecution advocate to consider the disclosure record sheet at all conferences and before all court hearings. (The disclosure record sheet should not be copied but should be made available accordingly).

17.15. Instructions to the prosecution advocate in cases where there is sensitive unused material should, subject to Restricted, Confidential, Secret or Top Secret protective marking include the following:

  • the MG6D
  • the MG6E
  • copies of any items of sensitive unused material supplied to the prosecutor
  • any notes made by the prosecutor in relation to sensitive unused material
  • any specific instructions to prosecution advocate in relation to sensitive unused material
  • specific instructions on the handling and security of sensitive material consistent with its protective marking
  • a note that the prosecution advocate should always check the disclosure record sheet prior to any hearings and at any case conference, as the disclosure record sheet itself should not be copied to the prosecution advocate.

17.16. If the document contains relevant information that must be disclosed to the accused because it satisfies the disclosure test, the prosecutor and the disclosure officer will need to consider whether the document can be edited if it contains sensitive material.

Retention periods

17.17. Paragraphs 5.6 to 5.10 of the Code of Practice provide for the period of retention. This is the minimum period of retention and individual force policy may provide for a longer period.

17.18. Material seized under the provisions of PACE will be subject to the retention provisions of section 22 PACE.

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