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Chapter 21: Disclosure of Unused Material Created in the Course of Financial Investigations

Introduction

21.1. Financial investigations may fall into five categories:

  • Those supporting a criminal investigation, i.e. obtaining financial intelligence and/or evidence to assist with the prosecution
  • A confiscation investigation being carried out alongside the criminal investigation and prosecution of a suspect
  • A confiscation investigation occurring after conviction
  • A financial investigation supporting civil cash seizure
  • A financial investigation supporting civil forfeiture or a taxation assessment by the National Crime Agency (NCA).

21.2. Where a financial investigation is supporting a criminal investigation or is being conducted alongside a prosecution case, the financial investigator must ensure that revelation of all material is made to the prosecutor on the relevant forms in accordance with the existing procedure set out within the CPIA 1996. In normal circumstances this will be via the disclosure officer.

21.3. The underlying principles of the common law the Guidelines and ECHR mean that prosecution material created or obtained following conviction should be dealt with in the same manner. This will include the continuing duty to review the unused material, particularly, if appropriate, following the receipt of any response to a confiscation statement.

21.4. Financial investigations commencing after 24 February 2003 will generally be made by the police under the Proceeds of Crime Act 2002 (POCA), but may in some circumstances be made pursuant the previous legislation; namely, the Drug Trafficking Act 1994, the Criminal Justice Act 1988 (as amended by the Criminal Justice Act 1993 and the Proceeds of Crime Act 1995); the Criminal Justice (International Co-operation) Act 1990 and the Police and Criminal Evidence Act 1984 (PACE).

21.5. Such investigations will often result in the creation of a substantial amount of documentation. The duties of disclosure required by the CPIA 1996 will need to be considered in relation to this documentation. In POCA cases, the reviewing prosecutor will handle the confiscation aspects of the cases, with the applications for restraint and confiscation orders being made to the relevant Crown court. In cases under the pre-POCA legislation, applications for restraint and the appointment of a receiver will take the form of civil proceedings conducted by Central Confiscation Branch (CCB) in the High Court.

21.6. Given the wide definition of unused material under the CPIA 1996, financial investigation material should be recorded and dealt with under the normal rules of disclosure.

21.7. The paragraphs below set out the responsibilities of the financial investigation officer (FIO), the disclosure officer, the prosecutor and the CCB in dealing with financial investigation material. The procedures recommended below must be read in conjunction with the underlying principles and instructions in this manual.

Financial investigation officer actions

21.8. Material is obtained or created by the FIO in a number of ways. The most common are:

  • material obtained under a POCA investigation;
  • material obtained by virtue of an order or a search warrant under PACE 1984;
  • material obtained by virtue of an order or a warrant obtained under section 93H or section 93I of the Criminal Justice Act 1988 or obtained by virtue of an order or a warrant obtained under section 55 or 56 Drug Trafficking Act 1994 (these powers have been repealed by POCA and will generally only be available to investigations that began prior to 24 March 2003);
  • material obtained under a production order made under schedule 5 of the Terrorism Act 2000;
  • information obtained as a result of enquiries overseas;
  • notes and working papers as a result of any other enquiries;
  • disclosures concerning suspected criminality from suspicious activity reports (SARs) and any other source

(NCIS has published guidance on its website regarding the treatment of SAR material and the need to protect the identity of the makers of SAR whenever permissible. This may require the SAR to appear on the MG6D schedule. NCA should be advised of any intention to disclose SAR material. The decision as to whether to disclose should be made by the prosecutor following the submission of a threat assessment by the officer in the case and after consideration of any representations made by NCIA).

21.9. The material above is prima facie relevant material under the CPIA 1996. The FIO should fully describe the material on the appropriate schedule, which should be provided to the disclosure officer who will have the responsibility of notifying the prosecutor handling the case. The FIO should assist the disclosure officer in his or her assessment of the material against the disclosure test and the subsequent items required to be listed on the MG6E.

21.10. It is important that a separate schedule is provided for each accused. Financial investigation unused material is likely to be confidential and should not be routinely disclosed to co-accused. It should only be disclosed if it satisfies the disclosure test. There is no requirement to copy the material. The prosecutor will provide the schedule to the relevant defence solicitor.

21.11. Particular care should be taken with respect to material created during the course of restraint and receivership proceedings, as documents lodged at High Court or Crown Court can only be disclosed to co-accused pursuant to an order of the relevant court and any disclosure made or information given by a defendant pursuant to a restraint order will have been made or given subject to an undertaking by the prosecution that there shall be no disclosure to any co-defendant in the criminal proceedings without further order of the Court.

21.12. Sensitive material must be described fully on a separate schedule, which will not be disclosed to the defence by the prosecutor. This schedule should again be provided to the disclosure officer by the FIO and will be supplied to the prosecutor.

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Disclosure officer actions

21.13. The disclosure officer will receive the schedules of unused material from the police or NCA FIO. The disclosure officer should consider the FIO's schedules and append them to the relevant MG6C or MG6D schedule. Any material that satisfies the disclosure test should be itemised on a separate MG6E for onward submission to the prosecutor. The disclosure officer should seek the assistance of the FIO in this task. It is important to ensure that the defence case statement is served on the FIO to ensure that the material held by the FIO is considered as part of the continuing duty to review.

Central confiscation branch actions (pre-POCA cases only)

21.14. The CCB provides advice and support to CPS Areas and Headquarters in relation to confiscation matters and will often be involved in proceedings in the High Court in relation to restraint and receivership provisions of the pre-POCA legislation mentioned above. Some of the material received by FIOs will be copied to the CCB but the responsibility for notifying the prosecutor of such material will remain with the FIO (via the disclosure officer) as set out at paragraphs 21.8 - 21.12 above.

21.15. The CCB will have the responsibility of revealing to the prosecutor the existence of any material created in the course of High Court restraint and receivership proceedings. Material that will commonly feature in such proceedings will include:

  • witness statements in support of restraint and receivership along with any draft statements
  • restraint and receivership orders
  • variation orders
  • witness statements of disclosure
  • contempt motion papers.

21.16. All these documents (other than drafts) will in the normal course of events be served on the accused so no problem in relation to disclosure of unused material will arise in respect of that accused. The difficulty that will arise, however, is in connection with disclosure to any co-accused. The orders and witness statements are prepared for civil proceedings and unless the permission of the High Court is obtained, disclosure to a third party, even a co-accused, cannot be justified.

21.17. The CCB prepares, or assists in the preparation of, financial statements to be served under the DTA 1994 or the CJA 1988 for use in the Crown court. The original statement is served on the relevant accused and again the question of disclosure of such statements to a co-accused as unused material is raised. It is considered that there should be no disclosure to a co-accused when the information in the statement has been supplied by the accused following an order by the High Court unless the consent of the High Court has been obtained. In other circumstances, where information has been elicited in questioning sanctioned by paragraph C11.4 of the PACE Codes of Practice, there can be no objection to disclosure to a co-accused.

21.18. It will be the responsibility of the CCB to provide the prosecutor with a list of material held in connection with the civil proceedings and to inform the reviewing lawyer, on the list, what has been disclosed to a particular accused and what should not be disclosed to any co-accused. There is no need to provide copies of documents unless the prosecutor considers it necessary. It will be the responsibility of the prosecutor to inform the solicitor of the accused of the position (as set out at paragraphs 21.23 and 21.24 below).

21.19. The CCB list of unused material will also include other unused material of which the prosecutor will not have been notified by the FIO, such as drafts of statements, accountancy documents and drafts.

Reviewing prosecutor actions - CPS Areas only

21.20. In pre POCA cases, where CCB are involved the prosecutor will receive from the CCB a list of material held by that CCB together with details of what has been served on the accused and what should not be served on any co-accused without the consent of the High Court.

21.21. Under POCA, local CPS Areas will undertake restraint and receivership proceedings in the Crown court for those offences in respect of which a POCA confiscation order may be made and may hold material as set out in paragraph 21.15 above. The prosecutor will need to decide whether any of the material held should not be served on any co-accused without an order of the Crown court (see the Rules Parts 61.13 and 61.14 and paragraph 21.11 above).

21.22. As with all other disclosure obligations in relation to unused material, the prosecutor will also have the responsibility for disclosing to the defence unused financial investigation material. The prosecutor will receive schedules of financial investigation material attached to the MG6C, MG6D and MG6E schedules. Disclosure to the defence will be dealt with in exactly the same way as is detailed in chapters 7 - 14. The prosecutor should ensure that a separate schedule is provided in relation to the financial investigation material for each accused.

21.23. Financial investigation material is likely to be confidential and should not be routinely disclosed to co-accused. Where material gathered in respect of an accused falls for disclosure to a co-accused applying the disclosure test, where such material is confidential, such disclosure should only be made following a court order made following an application to the court. This application should be made on notice to allow all interested accused to make representations to the court. This will not apply to information elicited in questioning sanctioned under paragraph C11.4 of the PACE Codes of Practice, which should routinely be disclosed.

21.24. The solicitor for any co-accused should be informed in writing of the existence of material (for example, witness statement of disclosure, restraint order) relating to a co-accused and told that the material will not be disclosed without the consent of the High Court or Crown court and that if the solicitor considers such material to be relevant, he or she must make application to the relevant court.

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