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Chapter 33: Access to and Handling Highly Sensitive Third Party Material

Introduction

33.1. This chapter provides guidance to investigators and prosecutors who have to deal with sensitive material generated by or in possession of security and intelligence agencies (the Agencies).

33.2. The Agencies are third parties under the CPIA 1996. They are not deemed to be 'investigators'.

33.3. Problems may arise in the following areas:

  • obtaining contact with an Agency
  • visiting Agency premises
  • accessing relevant Agency material
  • handling Agency sensitive material that requires a PII application.

33.4. Most of the solutions lie in better and clearer communication and, crucially, appreciating the cultural differences and understanding why they exist.

33.5. This guidance sets out to build upon and enhance earlier guidance and should be followed.

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Initial contact with the Agencies

33.6. Applying paragraph 3.4 of the Code of Practice, where the officer in charge of the investigation has reason to believe (not "speculate", per paragraph 3.5) that an Agency has material that is potentially relevant to an investigation, he or she should ask the disclosure officer to make contact with the Agency concerned to invite them to retain the material. The disclosure officer should then contact the prosecutor to inform him or her that the Agency may have material in its possession that may need to be inspected. The prosecutor should make contact with the Agency at the contact point to arrange to inspect the material.

33.7. Further guidance is given by the Guidelines, paragraphs 47-50.

33.8. Where the Agencies believe that they have information (including documents), which may be relevant to the investigation or prosecution of a criminal offence or to the defence, they have a general professional duty to draw this fact to the attention of the investigator or prosecutor. Furthermore, the Agencies have a duty to support the administration of justice by ensuring that investigators and prosecutors are given full and proper assistance in their search for relevant material.

33.9. The Agencies have Enquiry Points to assist in this process, whose functions are, inter alia:

  • to identify the individuals or sections best placed to respond to requests for information or material
  • to check and forward responses to requests for information or material to the originators of such requests.

33.10. Prosecutors' or investigators' requests for potentially relevant material should be directed to the Enquiry Point in the Agency concerned. This applies even where an individual within the Agency has contacted the investigator or prosecutor direct and the request for information is to follow up that approach. If it is not clear which Agency or other department is responsible for the information being sought, full details of the request should be addressed to the Enquiry Point of the Treasury Solicitor, who will assist.

33.11. Requests for information should be as precisely drawn as possible, particularly where specific documents or facts are being sought. Where available and applicable, requests for information should include:

  • the grounds for believing that the Agency or department concerned has documents or other information relevant to the investigation or prosecution or the defence
  • the broad subject matter or matters of the request
  • the particular matters or issues relevant to the request
  • the period covered by the request
  • the names of all persons (plus their nationalities and dates of birth) companies, organisations or parts of organisations relevant to the request
  • details of any geographical features or limitations of the request (many departments have different sections to deal with different regions of the UK or different parts of the world)
  • the case or point which the information being sought is intended to test and the likely lines of defence against this case or point and
  • time-limits for responding to the request.

33.12. In all cases, requests for information or documents should provide as much information as is reasonably practicable. Where there are any factors, in addition to those set out in the above list, that may help to identify potentially relevant information or to narrow down any searches for information, they should also be noted in the request. Where any details contained in the request are sensitive, the nature and degree of sensitivity should be indicated so that appropriate measures can be taken to protect the request and to limit its circulation.

33.13. Even where all the details described above are supplied, difficulties may still arise in identifying the information required. This may happen, for example, where responsibility for the matters covered by the request is spread between several different sections of the Agency department concerned. In these circumstances, the person responsible for dealing with the disclosure issue within the Agency or department will either seek further details or suggest a meeting to try to resolve the problem. However, it may be necessary for a more limited search for information to be carried out than that required by the terms of the request. In this case the parameters of the search, and the reasons why a fuller search is not practicable, should be explained in writing to the originator.

Initial police actions

33.14. Where an officer has reason to believe that an agency may possess relevant material that officer must bring this to the attention of the officer in charge of the investigation.

33.15. After consultation with the officer in charge, the disclosure officer, or an officer delegated by the officer in charge, should make contact with the relevant agency.

33.16. The officer should inform the prosecutor once contact has been made.

33.17. Wherever the third party makes contact with a prosecutor because it holds material that may be relevant to a prosecution, the officer in charge of the investigation should be informed of transactions between the third party and the prosecutor. Although there may be circumstances where it will not be appropriate to reveal to him or her the nature of the material in those transactions, best practice dictates that the officer in charge of the investigation should be fully involved wherever possible. In any event the officer in charge of the investigation will have a right to be present (or represented) during any consultation on evidential matters between the prosecutor and the third party.

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Initial CPS actions

33.18. Where a prosecutor has reason to believe that an agency may possess relevant material that lawyer should discuss the issue with a Level E lawyer.

33.19. The Level E lawyer should provide guidance for how and when the prosecutor should contact the Agency. How this is done will depend on the individual security clearance of the lawyers concerned.

33.20. The Agencies' contact details will be retained by the Level E lawyer.

33.21. The prosecutor should consider the need for security clearance before being able to access and review material held by such agencies. Such procedure should be discussed with the point of contact at the initial stages and an appropriate period of time to allow this to take place will be necessary to be built into the timetable for case preparation.

33.22. Where the timetable required does not allow for such clearance being obtained the matter should be reviewed to consider if an application for more time is appropriate of whether the case should be re-allocated to a lawyer with appropriate levels of clearance. Details of personnel who are Security Cleared can usually be obtained from the Departmental Security Officer at Rose Court, 2 Southwark Bridge. London, SE1 9HS.

Guidance for visiting security and intelligence agency premises

33.23. If investigators, prosecutors or advocates have to inspect documents in the possession of the security and intelligence agencies, such inspection will normally carried out at their premises. The following provides some practical guidance on the security requirements of these agencies.

33.24. Before the first visit the investigator, prosecutor or advocate should:

  • ensure that the agency has been supplied in advance with such relevant prosecution papers (such as the case summary) as it requires in order to retrieve the appropriate documents for inspection.
  • ensure they have the correct level of security clearance. Access to agency buildings will only be granted to individuals who have been granted an appropriate level of security clearance. This can take several weeks to arrange.
  • obtain a contact telephone number so that they can be reached while in meetings, as mobile phones are not permitted on agency premises.
  • ask in advance whether a laptop or any other electronic device will be permitted on agency premises.

33.25. Investigators, prosecutors or advocates visiting agency premises should:

  • give at least twenty-four hours' notice of an intended visit
  • expect, on first visit, to be briefed on the applicable security arrangements and may be asked to sign the Official Secrets Act
  • remember that any written notes made may not be permitted to be taken off agency premises, as the notes themselves may be classified
  • give advance notice if they wish to record classified notes electronically, as it is possible to arrange for a secure laptop to be provided once this requirement is known
  • note that if they are required to provide written advice, this too might be classified. If so, arrangements will need to be made for such advice to be produced securely. It will not be permissible for this advice to be produced or stored on personal or chambers' computer systems
  • note that if any classified documents are required to be produced for court hearings, the agency will make arrangements for their transport, delivery and (if necessary) storage.

33.26. If investigators or prosecutors are ever in doubt, they should always ask.

Guidance on access to foreign intelligence agencies

33.27. There may be occasions where there are reasonable grounds to believe that material in the possession of an Intelligence Agency of another country is potentially of significant relevance to a prosecution. In the first instance all queries should be directed to the relevant Casework Director at Rose Court.

33.28. In any subsequent contact it is important that the purpose of such enquiries is made clear to the agency concerned in order to avoid disputes at a later date.

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