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Chapter 32: Co-ordination of Disclosure Issues involving Multiple Police Force and Multiple Agency Investigations within the UK

Introduction

32.1. Where enquiries reveal the existence of a separate but linked investigation(s) conducted by another force or agency, a formal agreement between the forces/agencies concerned should set out their respective roles and responsibilities.

32.2. Investigations may be linked by, for example:

  • the suspect(s) being the same
  • surveillance by different agencies uncovering related suspects, or
  • suspects becoming related after the commencement of an investigation by virtue of being accessories or accomplices
  • where one investigating agency supplies assistance or information to another investigating agency.

32.3. This guidance provides for two types of agreement:

  • an Operational Memorandum of Understanding (OMOU) where investigators wish to establish a long term case relationship (at Annex F)
  • a disclosure agreement document (the 'disclosure agreement') for cases where more limited assistance is provided (at Annex G).

The Operational Memorandum of Understanding

32.4. The purpose of such an agreement is to:

  • agree the strategic and tactical objectives of the operation
  • agree the roles and responsibilities of the parties, including those relating to disclosure so that each party is aware of its specific responsibilities.

32.5. Prosecuting agencies should be notified and a copy provided at the earliest opportunity. The prosecuting agency should be made aware of any changes to the document as they are made.

Prosecutors

32.6. The prosecutor should be fully engaged in the disclosure process from an early stage

32.7. The respective agencies' prosecutors should have regard to the Prosecutors' Convention in order to coordinate revelation and disclosure, and consider inter alia how to co-ordinate related prosecutions, lead prosecution responsibility, timing of proceedings, mechanisms for sharing information and other disclosure issues.

Linked investigations

32.8. When a link between different investigations is discovered, the respective officers in charge of the investigation should discuss the nature and extent of the link to assess whether the used and unused evidence of one investigation might impact directly upon or be relevant to the other investigation.

32.9. Coordination of disclosure issues should be evidenced within the OMOU or the disclosure agreement, together with the nature and extent of any future relationship.

32.10. The extent of the link and the subsequent relationship desired will vary. For example, several government departments have law enforcement and prosecution functions. These arise from legal obligations that are separate and distinct from those of the police. In such cases, there may well be a police and a separate agency investigator carrying out their own investigations into the same or related suspect(s), which may then be followed by separate prosecutions. There is clearly a need to establish a long-term case relationship and in these types of cases, best practice is to use the OMOU.

32.11. On the other hand, one agency may supply information or limited assistance to another agency's investigator. In these cases, the disclosure agreement would be desirable.

32.12. Police investigations can cross force boundaries, or a National Crime Squad enquiry may lead to the adoption of a local force's investigation. For example, the local forces' investigation may start with local level 2 offending (drug supply) but may uncover level 3 offending (conspiracy to import drugs) involving the same suspect. The NCS will take over investigating level 3 offending, but may want the local force to continue investigating the level 2 offending. As these cases involve establishing a long-term case relationship, best practice is far an OMOU to be agreed.

32.13. On the other hand, in the example above, where it turns out that there are only level 3 offences to be investigated, (but the investigation was initiated by the local force), there is no need to establish a long-term case relationship and the disclosure agreement should be used.

32.14. Applying the CPIA 1996, one police force cannot be a third party to another. Each force is bound by the Code of Practice and the Guidelines and has duties to record and retain relevant information and material and reveal relevant material to the prosecutor.

32.15. The officer in charge of the investigation in each agency should appoint the disclosure officer and decide the number and location of deputy disclosure officers, bearing in mind the volume and the geographical location of the material. This should be recorded in the OMOU, which should be kept updated by the respective officers in charge.

32.16. The lead disclosure officer is responsible for:

  • overall disclosure strategy (and should involve the prosecutor at the earliest possible opportunity) and being the central point of contact.
  • assessing the disclosure implications of any other linked investigations. (For example, a sighting in one enquiry may undermine evidence in a linked investigation, placing the suspect elsewhere at that moment in time)
  • facilitating the free flow of information between investigators, paying particular attention to areas, which may satisfy the disclosure test. To assist this process, a disclosure conference with all the deputy disclosure officers is recommended. This should be followed by regular briefings.

32.17. Investigators should prepare a summary of the main points for each offence to assist the disclosure officers. Regular meetings of the disclosure officers on each enquiry should support this process and they should attend the joint briefings and all conferences, as necessary, to keep fully abreast of developments. Disclosure officers have a continuing duty to assess material generated by the investigation and during the course of the trial.

32.18. In particularly sensitive enquiries it may be necessary to appoint deputy disclosure officers for different topics, for example, one disclosure officer for the main investigation and another for the highly sensitive material. These officers must work closely together and be aware of all aspects of the case.

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Obtaining material from government departments

32.19. The Guidelines make it clear that where it appears to an investigator that another government department or agency may have relevant material, they must take reasonable steps to identify and consider it.

32.20. Under the CPIA 1996 and the Guidelines, government agencies, departments or Crown Servants are normally third parties in relation to an investigation carried out by a different investigative agency. One government agency cannot be deemed to be in constructive possession of material held by another government agency (see Guideline 48). However, unlike other third parties, such agencies or departments have a public law duty to cooperate with a criminal investigation. Moreover the Human Rights Act 1998 makes it unlawful for public authorities to act in a way that is incompatible with a convention right, which includes the right to a fair trial guaranteed by Article 6.

32.21. In some circumstances, there may be a statutory prohibition in relation to disclosure of information to those outside the department and it will be necessary to gain access through that department or agency's statutory gateway to allow the disclosure of information.

32.22. Where there are parallel or linked investigations between agencies, both agencies may be investigators under the CPIA 1996 with the resulting duties to record and retain. However, the fact that one agency may have simply been "tasked" to assist another investigating agency may not of itself be enough to make it an 'investigator', with the related duties to record and retain. Whilst it will always be a matter of fact and degree, the status of any tasked agency should be agreed at the earliest possible opportunity and recorded in the OMOU or disclosure agreement as appropriate to avoid potential confusion and uncertainty.

32.23. The procedure for obtaining highly sensitive material gathered and/or generated by the security and intelligence agencies is set out in chapters 33 and 34.

Security

32.24. Any issues in relation to the handling of sensitive material and/or its security should be set out within the OMOU or formal agreement, as information will not be shared unless the appropriate level of individual clearance is observed and secure storage is available.

32.25. In relation to the security of the material itself, each department or agency will have security advisors. Material should always be dealt with according to its security marking. For further guidance see chapter 24 in this manual.

Sensitive material and PII hearings

32.26. Material may be considered sensitive or highly sensitive by one agency but that view may not be shared by another agency. It is important that there is clear communication about such matters and if necessary, areas of dispute are escalated as appropriate.

32.27. The prosecutor should consider the possible need for a PII application at the earliest stage and record their views in line with chapter 13 of this manual. The views of the owner of the material, if they are a separate agency, should also be sought and the owner should be given the opportunity to make representations to the prosecutor prior to the hearing and be separately represented at, and/or attend the hearing.

32.28. Where another agency or department wishes to have its own representation at court, the prosecution advocate should assist where possible by setting out the agency's interest in the case to the judge.

32.29. All investigators and prosecutors should refer to guidance on PII applications, scheduling and CHIS issues in this manual.

Flagging

32.30. A number of law enforcement agencies adhere to a system of flagging for subjects under investigation and provide checks against their data on behalf of other law enforcement agencies. The principle of flagging is that if an investigator has an interest in an individual, through investigating an offence or commencing an investigation or proactive operation, they will register that interest by a documentary application. A flagging request document is used to register an individual, address or other unique searchable data, and the flag refers to the databases' ability to identify checks subsequently conducted on the subject.

32.31. The investigator with a flagged registered investigation is responsible for handling all the disclosure issues connected with the flagging application document and for the supporting intelligence used to justify and support registration, both initially and when the flag falls for renewal (every three months).

32.32. All disclosure issues flowing from the use of a flag must be handled in accordance with the instructions in this manual.

32.33. When a check is done, therefore, it may reveal the interest of another agency. If a check is conducted against a flagged individual in any agency, that agency will inform the flag holder that another agency has an interest. (The flag holding agency does not, under normal circumstances, notify the 'enquirer' of the other organisation's interest, however they may arbitrate or facilitate cross flow of information).

32.34. A number of law enforcement agencies protect the dissemination of the material with a disclosure caveat. This requires that the flag holding agency be informed of any subsequent prosecution after which they will then be responsible for handling any disclosure issues relating to the disseminated material.

32.35. Whilst use of the flagging system is encouraged it is not mandatory. For various reasons, a check cannot provide a conclusive record of subjects under investigation. A negative check against a flagged individual should not therefore preclude other reasonable lines of enquiry.

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Carousel disclosure

Introduction

32.36. Her Majesty's Revenue and Customs (HMRC) have developed its own 'in house' disclosure system to deal with the particular problems of size and scale in cases involving 'carousel' frauds (also know as Missing Trader Intra- Community or MTIC frauds). These cases involve a fraud on the VAT system involving trade in high value, low volume goods (usually mobile phones or computer chips) between at least three, but usually more, different companies, one of which is outside the UK. Investigators and prosecutors from outside HMRC, coming across similar or linked cases, will need to be familiar with their system. Complying with disclosure obligations in these cases has proved especially difficult and complex for a number of reasons, for example:

  • vast numbers of documents and other material are seized in the course of an investigation
  • HMRC, as the regulator and collector of VAT, holds a large quantity of material on any given VAT registered trader, irrespective of any criminal investigation, all of which needs to be considered for disclosure purposes
  • many MTIC frauds are connected, in that the companies involved all trade with each other, therefore any investigation may be linked to many others of a similar size
  • because the fraud necessarily involves overseas trade, relevant material is often held in other countries.

Defence abuse arguments

32.37. Defence teams in many MTIC prosecutions have either mounted, or indicated an intention to mount, abuse of process arguments of one of three broad types, namely:

  • application of a selective prosecution policy
  • allowing frauds to run and, in some cases, using traders as witnesses of truth when it is known or suspected that they are involved in fraud
  • turning a blind eye to the criminal activities of some traders in exchange for information about the fraudulent activities of others.

RCPO response

32.38. As a result, RCPO take the view that, in all MTIC prosecutions, all relevant material held by HMRC relating to any company in the trading chain (which could, for example, involve over 600 companies) must be considered for disclosure to see if there is any material which may support an abuse of process argument. In addition, material from any linked cases (where the defendant, or a prosecution witness, or a trading entity, in another case is the subject of an investigation) must also be considered.

32.39. HMRC have undertaken the National MTIC Information Handling Project (MIHP) which consists of a central library of all relevant material, both sensitive and non sensitive, relating to any of the 2500 VAT registered phone or chip traders. The library consists of databases collected from different branches of HMRC. It will not hold all of the evidence or unused material from any given prosecution, as unused material is also generated from the policy branch, concerning the department's general and developing approach to the investigation, and the operational branch regarding the genesis of the investigation, as well as material from abroad.

Carrying out disclosure in any MTIC prosecution

32.40. The disclosure officer has three separate sets of unused material to consider

  • all unused material generated in the course of the investigation in the usual way
  • all material in the library relating to any of the companies involved in the investigation
  • all material in any linked case.

32.41. Depending on the size of the case, this can be done in a number of ways. Usually, the disclosure officer (and his/her deputy) will review all the first category of material, although the prosecutor and junior counsel will review the sensitive material as well. The second category can be enormous in volume so the Disclosure Officer and junior counsel usually divide the task between them.

32.42. Material from linked cases is also likely to be huge in volume and it may not be feasible for the disclosure officer and the prosecution advocate to review it all. RCPO has developed a system that is considered to comply with the CPIA 1996. A summary of the case is prepared by the prosecutor or counsel and provided to disclosure officers in each of the linked cases. The disclosure officers are required to read the summary and certify whether any material satisfies the disclosure test. The case summary is also sent to the case lawyers for linked cases, who are required to certify whether they are aware of any material existing in their case, which might give rise to a potential abuse of process argument in the present case. The process is revisited when a copy of any defence statement is provided to disclosure officers and case lawyers together with the case summary, updated if necessary.

32.43. This procedure has worked well so far and has found favour with judges. It has been instrumental in overcoming some defence applications under section 8 of the CPIA 1996. Where this model is to be used, it is important to be transparent and make clear to the court and defence that the policy has been adopted by use of a Disclosure Policy Document, see chapter 29, paragraph 29.3 above.

MTIC Protocol

32.44. Investigators and prosecutors are directed to the MTIC Protocol and Guidance Notes for lawyers at RCPO for more detailed guidance.

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