Advanced Search

Chapter 23: Disclosure of Unused Forensic Science Material

Introduction

23.1. This chapter provides guidance on how unused material in the possession or control of a forensic science provider (FSP) should be revealed to the police and then to the prosecutor. It also reflects the agreement reached between the CPS, ACPO, and the FSPs as to the best way to comply with the legal duties of disclosure to the defence imposed under the CPIA 1996.

23.2. Police officer and prosecutors should apply the instructions in this chapter in conjunction with the general instructions contained in Part 1 of this manual. FSPs should incorporate the guidance into their Quality Management Systems.

23.3. This chapter sets out:

  • a brief explanation of the legal duties of disclosure arising at common law and under the CPIA 1996
  • general principles regarding the preservation of material held by FSPs
  • periods of retention for material held by FSPs
  • procedures agreed between FSPs, the police and CPS as to how the existence of material should be notified to the police and prosecutor.

23.4. The procedures set out in this chapter have been agreed between CPS, the police, and FSPs in relation to work carried out by FSPs in criminal cases.

The duty to disclose: general

23.5. The disclosure of material or information (eg records, tests, calculations, etc) that support the opinion of the scientist giving evidence for the prosecution is governed by Part 33 of the Rules.

23.6. The CPIA 1996 has been in force since 1 April 1997. It applies to all criminal investigations begun on or after that date. Those started prior to that date are still governed by the common law principles laid down in R v Keane, R v Maguire and R v Ward.

The common law duty

23.7. At common law, ie cases where the investigation began prior to 1 April 1997, 'the prosecution' will include the prosecutor; the investigator and any expert witness instructed by the prosecutor or the investigator eg forensic scientists, psychiatrists, pathologists, police surgeons, etc.

23.8. Disclosure principles will therefore apply equally to all members of the 'prosecution team' and all must reveal the existence of all unused material to the prosecutor. The prosecutor will then decide whether it needs to be disclosed to the accused.

23.9. It should be noted that the case of R v Ward placed a further important duty upon the expert:

'...an expert witness who has carried out or knows of experiments or tests which tend to cast doubt upon the opinion he is expressing is under a clear obligation to bring records of those tests to the attention of the solicitor instructing him..'

This obligation remains upon the expert. When it applies, the experiment or test material should be supplied to the disclosure officer and prosecutor.

Top of page

The CPIA 1996

23.10. The CPIA 1996 places obligations upon the prosecutor and the police, but not upon the expert.

23.11. The Code of Practice does not apply to forensic scientists and other experts, although any material or information that they supply to or retain on behalf of the police will have to be recorded and retained in accordance with the provisions of the Code of Practice.

23.12. The CPIA 1996'S disclosure regime is explained in Part 1 of this manual.

23.13. Unused material retained by forensic science organisations and not copied to the police can only be acquired by the defence through the witness summons procedures (see chapter 4) unless the information is volunteered.

Preservation of material

23.14. The CPIA 1996 and the Code of Practice do not impose any specific duties upon forensic experts regarding the preservation of material, but the guidance in this section sets out principles of good practice which should be followed.

23.15. It is vitally important that all material or information which may be relevant to the investigation and to the outcome of the case is recorded and retained.

23.16. When expert opinion is sought from the FSP not all the circumstances may be known. It would therefore be unwise to speculate on what the defence might be when deciding what to record or what to keep.

23.17. In particular, the FSP should always record the following:

  • the results of any tests or calculations, whether positive or negative;
  • any information obtained in connection with the forensic examination whether this points towards or away form the suspect;
  • any information generated during the course of the examination that might have some bearing on any offence under investigation or any person being investigated.

23.18. Notes and records of the above should always be retained by the FSP, together with the following items in particular:

  • notes and draft versions of reports or witness statements (especially where these differ from the final version);
  • any material gathered or generated in connection with the forensic examination, subject to specific arrangements to return material to the police following examination or to destroy it.

23.19. If there is any doubt as to whether material should be retained, or whether information should be recorded, discretion should be exercised in favour of preservation, recording and retaining.

Retention periods

23.20. Detailed arrangements for the retention of case material are set out in a Memorandum of Understanding on the Retention of Case Material agreed between ACPO and the FSS. All FSPs should adopt these arrangements as best practice wherever possible.

Top of page

Procedures: general

23.21. The police and the CPS procedures for the revelation and disclosure of unused material are contained in Part 1 of this manual.

23.22. The FSP should inform the police of all material retained in their possession in accordance with the procedure set out below.

FSP actions: preparation of the index

23.23. The FSP should provide to the police an index of all material in their possession. When the index is prepared, it will not necessarily be known what material is to be used as part of the prosecution case, and which will remain unused. Therefore the index should take the form of a list describing the material held by the FSP.

23.24. The scientific reporting officer should prepare the index and submit this to the police investigator when the report or statement is supplied in all cases except where an analyst's certificate is supplied in drink-drive cases.

23.25. All material should be individually listed on the index and described clearly and accurately so as to allow an informed decision on disclosure. (Where there are many documents or items of a similar type or repetitive nature, these may be described by quantity and a generic title. But, inappropriate use of generic listing may result in requests from the CPS or defence to see the items, with consequent delay and wasting of resources).

23.26. Any single item which is known to be of particular significance should be separately listed.

23.27. If not mentioned in the report or statement, the reporting officer should indicate on the index any material that satisfies the disclosure test, so far as this can assessed or is known. Wherever practicable, copies of material that satisfies the test should be sent to the police with the index.

23.28. The disclosure officer's duty of revelation to the prosecutor and the prosecutor's duty of disclosure to the defence are continuing obligations. Therefore the index must be kept up to date by the FSP. Where new material comes to light or is generated or received after the initial preparation and submission of the index, a supplementary index should be supplied to the police.

Police actions: dealing with the forensic index

23.29. Where a police officer receives an index from the FSP, this must be retained, together with any other report, statement or document supplied. Any relevant oral information received by the investigator, or by the disclosure officer relating to material held by the FSP should be recorded and retained in accordance with the Code of Practice.

23.30. Upon submission of a full file, the disclosure officer should check the material listed on the forensic index. The index should list all material retained in the possession of the FSP. The disclosure officer should list the index itself on the MG6C. The index may be described generically; for example: 'Forensic Science Service Index - compiled 21 January 05 - list of all material in possession of FSS'. The prosecutor should disclose the index to the defence in accordance with 23.35 below.

23.31. Where the disclosure officer believes that any of the material appearing on the index, satisfies the disclosure test the item should be listed on form MG6E. The disclosure officer should consult the reporting officer where he or she is in any doubt.

23.32. The schedules, the index and any undermining or assisting material should be sent to the CPS with the full file in the usual way in accordance with the instructions in this manual.

23.33. Where the prosecutor indicates that unused material in the possession of FSP requires disclosure, the disclosure officer should send a copy of the index endorsed with the prosecutor's decision to the FSP.

Top of page

CPS actions: disclosure to the defence

23.34. Prosecutors should be alert to the distinctions between used and unused material, and to the different legal obligations of disclosure to the defence that arise under the CPIA 1996, and Part 23 of the Rules.

23.35. Upon receipt of the index, the prosecutor should review the listed items in the same way as he or she would for items on an MG6C schedule and record disclosure decisions 'D' 'I' or 'CND' on the index itself. The prosecutor should then disclose the index itself to the defence at the same time as the MG6C is disclosed. The FSP should be notified of the prosecutor's disclosure decisions via the disclosure officer.

23.36. Upon receipt of a defence statement, the prosecutor should in exercise of the continuing duty of review consider with the disclosure officer whether any issues are raised which might have a bearing on any forensic examination carried out. Situations where this may occur are mentioned at paragraph 23.40 below. A copy of the defence statement should be sent to the disclosure officer for submission to the FSP where further advice is required as a result.

23.37. It will be important to maintain clear lines of communication between disclosure officer, CPS and forensic scientist in any case where there is forensic material.

Police actions: defence statements

23.38. The defence statement should be provided to the FSP in all cases where the circumstances in 23.40 below arise, or where further work is required as a result, or where the forensic scientist requests it.

23.39. When a defence statement is received, or where information comes to light from any source which might have a bearing on or otherwise affect any evidence supplied by a forensic expert, the disclosure officer should consider, in consultation with the investigator and the prosecutor, whether further enquiries need to be made.

23.40. The disclosure officer should send a copy of the defence statement to the forensic scientist together with instructions as to any further report or work required. A date should be given as to when a response is required. Situations where this should occur will include:

  • where forensic evidence is challenged directly
  • where issues raised in the defence statement may have a bearing on the interpretation of scientific evidence
  • where the scenario put forward by the defence statement differs significantly from that upon which expert opinion is based
  • whenever it is necessary to ask the FSP to review the forensic material or to conduct further tests in order to clarify the issues raised by the defence statement
  • where any issue is raised that might have a bearing on forensic material, either used or unused
  • where a new line of enquiry is indicated, and the officer in the case considers that it should be pursued.

23.41. Where the disclosure officer is not clear whether the defence statement has any bearing upon forensic material, the FSP should be contacted for advice on whether it may be desirable to review the material in the light of the defence statement.

23.42. In appropriate circumstances, it may be desirable to arrange consultation between the police investigators, the forensic scientist and the prosecutor to decide upon a suitable course of action. Whatever the nature of the case, it is important to maintain appropriate liaison between the FSP, the police and the CPS to ensure that the disclosure process is completed properly.

FSP actions: defence statements

23.43. If the defence statement reveals information that may have a bearing upon any opinion expressed by the forensic scientist, or which might affect the interpretation of any material held by the FSP, the disclosure officer should provide a copy of the defence statement to the scientist. This should be accompanied by further instructions, detailing any further work or report which may be required as a result.

CPS actions: defence requests for FSP material

23.44. Any requests received by the CPS for disclosure of unused material in the sole possession of FSP should be the subject of consultation between the prosecutor and the disclosure officer.

23.45. Consideration should be given to obtaining the material in accordance with the relevant provisions in this manual.

23.46. If, following such a request and consultation as outlined in the preceding paragraphs, the prosecutor decides not to seek access to the material, the defence should be asked to refer their request directly to the FSP concerned who will decide whether they will volunteer to provide access.

Top of page

FSP actions: access arrangements for the defence

23.47. The FSP is a third party under the CPIA 1996. The defence might make a direct approach to the FSP for access to case material, informally or by way of witness summons. The FSP will notify the police of such approaches. The FSP has discretion whether it will respond to informal requests for access, but obviously must comply strictly with the terms of any witness summons.

23.48. The following paragraphs represent the principles and the procedures to be adopted when making arrangements for defence access to, and examination of, retained FSP material.

23.49. Whenever access is sought by the defence to used or unused material, the FSP will:

  • notify the police of any requests by the defence for access, and of any arrangements made
  • advise the police where the defence seek to carry out further tests which may alter, damage or destroy the material
  • make arrangements for ensuring that the integrity of exhibits is maintained and a continuity record is made where these are subject to defence examination
  • keep a record of any defence examination, including the nature and extent of the examination, and any views expressed
  • notify the police if the forensic scientist's views are likely to change as a result of the defence examination.

23.50. The prosecutor will have provided the defence with an endorsed copy of the index and the schedule of non-sensitive unused material (form MG6C). Where the prosecutor has indicated that unused material in the possession of the FSP should be disclosed, the disclosure officer will send a copy of the index, MG6C, and any letter to the defence to the forensic scientist.

23.51. The FSP should grant the defence access to the unused material that the prosecutor has indicated should be disclosed. This should be done on production of a copy of the MG6C schedule or index (or covering letter, if the latter refers to the material directly). The material to be disclosed will be marked upon the schedule or index by the prosecutor by a 'D' or an 'I' endorsed against an item in accordance with paragraph 23.35 above). Items that do not meet either disclosure test, and thus should not be disclosed to the defence will be marked the prosecutor with 'CND'. The FSP will use the copy MG6C supplied by the police as a checklist, and to identify material that does not require disclosure at that time.

23.52. Supervision of access to non-sensitive unused material by the FSP will be governed by way of local arrangements. As best practice, this should require that the investigator or disclosure officer is present wherever possible when the defence examine any forensic material.

23.53 It should be noted that the defence may also be entitled to access to material in the possession of forensic science organisations through the operation of Part 33 of the Rules. This will relate to the records of any tests, calculations, documents, or objects upon which the forensic scientist bases his expert opinion and which forms part of the prosecution case.

Top of page