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Chapter 35: International Disclosure Issues

Introduction/background

35.1. Requests for assistance from abroad are underpinned by principles of reciprocity and mutual respect among foreign legal systems. When dealing with foreign agencies it is important to bear these principles in mind. Abuses or perceived abuses cause damage beyond the confines of individual cases and can potentially adversely affect future requests for assistance. Experience has shown that opening up a constructive dialogue with requested parties will often overcome many of the difficulties thrown up by divergent practice and procedure - including those relating to the disclosure of unused material.

35.2. The principles governing the approach to be taken to unused material located abroad or obtained from abroad are the same as apply to material located in or obtained in the United Kingdom.

35.3. There are two interrelated bases upon which it may be necessary to request unused material from abroad:

  • where the investigator is discharging his duty to pursue all reasonable lines of enquiry under paragraph 3.5 of the Code of Practice, and
  • where the investigator, disclosure officer or prosecutor suspects that a third party abroad has material or information that might be disclosable if it were in the possession of the prosecution under paragraph 51 of the Attorney General's Guidelines.

35.4. Particular considerations apply to disclosure in cases involving extradition or surrender following the use of a European Arrest Warrant.

35.5. The obligation to obtain and disclose unused material causes a number of problems in the context of cases with an international element:

  • very often the requested state in which the unused material is located will not have a disclosure regime and no concept of unused material. Consequently, the authorities of that state may not understand why material is requested and may consider compliance with a request to be unnecessary
  • requests for material demonstrating the legality of police or judicial actions overseas may be misinterpreted as casting doubt on the propriety of foreign practice
  • certain material, such as that obtained on an investigator-to-investigator basis, may have been provided on condition that it is not used in judicial proceedings
  • following extradition proceedings, fugitives may be surrendered to the UK without any record of the decision to extradite, in particular the offences in respect of which they are returned.

35.6. This guidance deals with:

  • context
  • obtaining material from overseas
  • treatment of a letter of request as unused material
  • dealing with material in a foreign language
  • appropriate action where there is difficulty in obtaining material overseas
  • disclosure considerations in joint investigation teams
  • disclosure considerations in extradition cases
  • disclosure considerations surrounding liaison magistrates and liaison officers
  • Eurojust and its disclosure responsibilities and,
  • foreign claims for public interest immunity.

The Code - reasonable lines of inquiry

35.7. Under paragraph 3.5 of the Code of Practice the investigator should, in conducting an investigation, pursue all reasonable lines of inquiry, whether these point towards or away from the suspect. What is reasonable in each case will depend on the particular circumstances.

The Attorney General's Guidelines

35.8. By virtue of paragraph 36 of the Guidelines, the prosecutor should advise the investigator if, in their view, reasonable and relevant lines of further enquiry should be pursued.

35.9. As part of this process, investigators, disclosure officers and prosecutors should apply their minds to material that may be held by Government Departments, other Crown bodies, material held by other agencies and third parties. Where it appears to the investigator, disclosure officer or prosecutor that a Government department or other Crown body has material that may be relevant to an issue in the case, reasonable steps should be taken to identify and consider it.

35.10. The Guidelines expect a higher degree of co-operation in this respect from Government bodies and other such agencies than from independent bodies.

35.11. In situations where the investigator or prosecutor are aware or suspect that a (non government department) third party holds potentially disclosable material, Guidelines 51-54 must be followed. Guideline 51 stipulates that appropriate steps should be taken by the prosecution to obtain material or information meeting the disclosure test. Where access is denied, Guideline 52 says: '.the matter should not be left.' In essence, the prosecutor must show that reasonable steps have been taken to achieve revelation. If it is necessary and reasonable to do so, the prosecutor may seek production of the material by summonsing the third party under section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 but only if the material in question would satisfy the test under s2, in that it would be 'likely to be material evidence', i.e. immediately admissible as evidence in the proceedings.

Application to a foreign third party

35.12. The Guidelines' expectations that government bodies will give a higher degree of co-operation cannot apply to foreign government bodies. Foreign government bodies should therefore be treated as third parties under Guidelines 51-54, if applicable.

35.13. The summons procedure cannot apply to third parties outside the UK because Section 3(5) of the Crime (International Co-operation) Act 2003 (CICA) provides that any process served on a person outside the UK cannot impose any obligation upon the recipient to comply.

The decision in R v Alibhai

35.14. In R v Akbal Alibhai and others [2004] EWCA Crim 681, the Court of Appeal held that when applying the CPIA 1996 and Guidelines to foreign third party material, the prosecutor enjoyed a 'margin of consideration' as to what steps were appropriate. The accused's appeal was based upon the failure of Microsoft, the FBI and M (a participating witness and informant) to disclose material in their possession. The accused contended that this failure to disclose meant that the trial had been unfair or that the trial court should have excluded M's evidence. The Court rejected the assertion that the FBI and Microsoft had become so intimately involved with the UK investigator (the NCS) that they should have been regarded as 'prosecutors' within the meaning of the CPIA 1996.

35.15. The Court went on to consider the steps that should have been taken in order to discharge the prosecution's obligations to take steps to obtain relevant material.

35.16. The Court emphasised that the trigger for the provisions of Guideline 51 was a suspicion on the part of the investigator, disclosure officer or prosecutor that a third party had material or information that might be disclosable if in the possession of the prosecution. The Court referred to the decision in R v H [2004] UKHL 3 '. if material does not weaken the prosecution case or strengthen that of the accused there is no requirement to disclose it'.

35.17. It should be noted that the 2005 Guidelines replaces 'suspicion' with 'belief'.

35.18. The Court concluded that once the prosecution was satisfied that the disclosure test was met, the prosecution was not under an absolute duty to secure the disclosure of the material or information. The prosecution enjoys a 'margin of consideration' as to what steps will be appropriate in a particular case.

35.19. The Court did not rule out the possibility that in an extreme case it might be so unfair for a prosecution to proceed in the absence of material which a third party declines to produce that it would be proper to stay proceedings, regardless of whether the prosecution had complied with the Guidelines.

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Obtaining material from overseas: Generally

35.20. Material may be requested either in the normal course of investigations to discharge the investigator's duty to pursue reasonable lines of enquiry or in order to discharge the duty to take steps to obtain disclosable material where it is suspected that this is held by a third party abroad.

The means by which material may be obtained

35.21. There are two means by which material overseas may be sought:

  • investigator-to-investigator request via Interpol or by other means or,
  • Letter of Request issued by a court or designated prosecutor.

35.22. Which of these methods is chosen will depend upon the country in which the material is held. Certain countries (notably the USA) prefer that investigator-to-investigator routes be used unless a coercive power or intrusive measure is sought. Conversely certain European states will provide material on an investigator-to-investigator basis only on the condition that such material is not used during judicial proceedings. In such a situation a letter of request should be used to obtain material.

35.23. A letter of request may be issued under section 7 of CICA 2003 in order to obtain unused material from abroad.

35.24. When requesting assistance from abroad investigators and prosecutors should take reasonable steps (in suitably clear and diplomatic terms) to secure all relevant material that might be obtained or generated abroad in the course of those enquiries.

35.25. In the absence of prima facie grounds to consider that there has been an irregularity in the obtaining of evidence overseas, there is no obligation on the Crown to investigate the circumstances in which the evidence was obtained, see R v Hardy [2003] 1 Cr. App. R. 30, CA.

35.26. Provided local law is followed when the evidence is gathered in the requested state, material obtained abroad is admissible in England and Wales subject to the rules concerning hearsay and considerations of relevance and fairness.

35.27. Clumsy requests to the executing state requesting that it demonstrate the lawfulness of the methods used to obtain the requested material should not be made. There is a very real risk that such a request would be misinterpreted by the overseas authority concerned as implying that the methods used were unlawful.

Disclosure of letters of request

35.28. Letters of request should be scheduled as unused material at the earliest opportunity. This will normally be immediately after transmission of the request. Where there is a fear that disclosure of the existence of the letter of request might lead to interference with the gathering of evidence abroad, it will normally be appropriate to schedule it on the MG6D with a redacted version on the MG6C until it is executed.

35.29. In view of the nature of their contents, a letter of request will not usually satisfy the disclosure test. However, if the principle of speciality under section 9(2) of the CICA that limits the use to which material obtained can be put, is not respected and /or there is a material departure from the requirements of sections 7 and 8 of the CICA, the defence legitimately may be able to raise an abuse argument or seek to exclude evidence under section 78 of the Police and Criminal Evidence Act 1984, then the prosecutor should carefully consider disclosure.

Language

35.30. All relevant documents in foreign languages obtained overseas should be translated into English in order that the CPIA 1996's obligations can be complied with.

35.31. Situations will arise when the investigator and the prosecutor are confronted with voluminous amounts of material obtained abroad that is not in English. Very often it may not be clear how much, if any, of the material is relevant. In such circumstances it is important to take reasonable steps to identify and translate relevant material. Methods of identifying such material might include:

  • depending on the nature of the material and who it was obtained from, asking the provider for assistance in identifying potentially relevant items, which could then be translated
  • involving the liaison magistrate to identify relevant documents
  • using IT to search documents by keyword.

Difficulty in obtaining unused material abroad

35.32. Following on from paragraph 35.3 above, reasonable lines of enquiry and appropriate steps will vary depending on the circumstances of each case. Where difficulties arise in obtaining material from abroad it is advisable to make contact with the executing judicial authority (perhaps an investigator, judge or prosecutor), the Ministry of Justice or other appropriate body in the requested state for assistance, either directly or via a liaison officer, a liaison magistrate, the European Judicial Network, Interpol or Eurojust.

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Joint Investigation Teams (JITs)

35.33. JITs are an innovative response by the European Union to achieve greater clarity, consistency, speed and efficiency where cross-jurisdictional investigations are conducted. As yet the practice and procedure concerning the operation of a JIT (including disclosure) is untried and untested in UK courts.

35.34. Not all EU Member States have the necessary enabling legislation in place to allow them to participate in a JIT.

35.35. Provisions enabling UK participation in a JIT are implemented by s.103 and 104 of the Police Reform Act 2002.

35.36. Guidance on the formation of a JIT is contained in Home Office Circular 53/2002.

35.37. A JIT must carry out its operations fully in accordance with the law of the Member State it is operating in. So prosecutions in England and Wales that arise out of a JIT must comply with the CPIA 1996 and the UK (JIT) Team Leader will need to give consideration to this issue during planning for and the execution of JIT activity. Inevitably this will demand knowledge of the disclosure regime in England and Wales by JIT members (not necessarily UK officers) during the investigation phase and careful management of the prosecution process to ensure compliance.

35.38. Where UK personnel are seconded to a JIT operating outside the UK, consideration should be given to UK officers assuming the role of disclosure officer if there is any likelihood that any part of the case(s) may be heard in this jurisdiction. Equally, seconded officers will need to be alive to potential disclosure issues if there are parallel or linked cases to be heard here.

35.39. Seconded members may share information with other members of the JIT that is available to the seconding competent authorities if it is relevant to the investigation. However, information sharing must be in accordance with the law of the seconded member's own Member State and be within the limits of his or her own competence. Information that would not normally have come into the possession of the competent authorities of Member States - had it not been for the JIT - may only be used as follows:

  • for the purposes for which the team was set up
  • subject to the prior consent of the competent authorities of the Member State where the information became available, for detecting, investigating and prosecuting other offences. Such consent may be withheld only in circumstances where such use would prejudice criminal investigations in the Member State concerned or where the Member State could refuse mutual legal assistance
  • for preventing an immediate and serious threat to public safety, and subject to prior consent if subsequently a criminal investigation is commenced
  • for the purposes agreed between the competent authorities setting up the team, and
  • in the case of a witness statement, the expectation would be that the consent of the witness should be obtained before the information is used for purposes other than those for which the statement was provided, subject to considerations concerning immediate and serious threats to public security.

35.40. A JIT operating in the UK with a view to proceedings in the UK or where such proceedings are reasonably contemplated should handle unused material in the same way as any other UK investigation. After Alibhai, a margin of consideration will apply to foreign material that does not actually come into the possession or control of the JIT, in the same way that it might apply to a UK investigation that is not a JIT.

35.41. UK officers participating in a JIT operating outside the UK should take reasonable steps to preserve unused material if there is any realistic prospect of proceedings in the UK. If material is not preserved and then UK proceedings follow, a margin of consideration may also apply to what steps might reasonably be taken by UK officers working within a foreign JIT and might perhaps also apply to the extent to which UK proceedings were contemplated.

Disclosure in import extradition cases

35.42. For the purposes of this document the term "Import Extradition" refers to the making of requests to foreign countries to secure the return of persons wanted for prosecution in England and Wales.

35.43. A number of disclosure issues may arise during the extradition process. For the sake of completeness four main issues arise although not all necessarily involve unused material in the conventional sense.

35.44. These are as follows:

  • formal disclosure of unused material
  • the duty of candour
  • disclosure of the extradition papers and material generated by the extradition process, and
  • the provision of further particulars to assist the parties dealing with the extradition case in the foreign jurisdiction following the accused's arrest and initiation of extradition proceedings.

35.45. As a general rule there should be no disclosure, unless and until the accused has been arrested and extradition proceedings against him/her initiated. To do otherwise risks tipping off the accused that his extradition may be sought.

Formal disclosure

35.46. In the context of import extradition formal statutory disclosure duties will arise only where the accused has left the jurisdiction after charge and before conviction.

35.47. The statutory duty of disclosure will not arise where the accused has absconded before charge or after conviction.

35.48. Even if there is no statutory duty to make disclosure, prosecutors should still consider whether some form of early disclosure is appropriate. Early disclosure is referred to at chapter 2 (paragraph 2.5 and following) of this manual.

35.49. Early disclosure will often benefit the prosecution as well as the defence by obviating fruitless lines of enquiry. It may also mean that the proceedings following the accused's extradition can progress more quickly.

35.50. Disclosure should usually only be made to the accused's UK legal representatives. Foreign lawyers acting for the accused in the extradition proceedings will not normally be qualified to understand or participate in this process.

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The duty of candour

35.51. Prosecutors must bear in mind that the description of the conduct contained in an extradition request will usually be the only information upon which the extradition proceedings (including decisions on such matters as the question of bail) will be based.

35.52. It is therefore of the utmost importance that the description of the conduct alleged is framed with the greatest care; it is an essential protection to the person whose extradition is sought.

35.53. Whether or not evidence in support of the request is required to be submitted under the extradition scheme in question, the prosecution case must always be put accurately and fairly.

35.54 If there is a variance between the case as outlined in the extradition request and that which is subsequently put in court following the accused's extradition, there is a risk that the proceedings may be stayed on the grounds of abuse of process.

35.55. In order to comply with their duty of candour, prosecutors should if possible seek to review unused material before a request for extradition is submitted, or as soon as possible thereafter.

35.56. Once extradition has been requested, the prosecutor should continue to review the prospects of securing a conviction. This is important in all cases, but particularly where there is a significant delay between the extradition request being made and extradition. Where information comes to light after the request has been made that significantly alters the basis of the prosecution case, this should be disclosed to the foreign authorities handling the extradition request. If the further information is such as to weaken the prosecution case to the point where there is no longer a realistic prospect of conviction, this should be disclosed to the relevant authorities in the territory to which the request is addressed and the request withdrawn as matter of urgency. If appropriate, the accused's legal representatives in the UK and any victims/witnesses associated with the case should also be notified too.

35.57. Unused material that comes to light after extradition has been requested should be reviewed as a matter of urgency and consideration given as to whether it is appropriate to maintain/withdraw the request.

Disclosure of extradition papers/material generated by the extradition process

35.58. Before extradition proceedings can be commenced, the accused must be located. This process will inevitably generate material which may, on very rare occasions, amount to relevant prosecution material. It is therefore essential that copies of all such material are passed to the disclosure officer for consideration as to whether it is relevant and should be scheduled.

35.59. In urgent cases, a request for the accused's provisional arrest pending the submission of the full extradition documentation can be submitted through NCA or Interpol. As with locate/trace material this may on very rare occasions amount to relevant unused material. It is therefore essential that copies of all such material is passed to the disclosure officer for consideration as to whether it is relevant and should be scheduled.

35.60. Extradition is formally requested either by means of a European Arrest Warrant (EAW), or, in the case of countries not operating the EAW scheme, a diplomatic note (the formal request for extradition) supported by a bundle of documentation complying with the requirements of the country concerned (the 'extradition bundle').

35.61. It is likely that the EAW or extradition bundle will be disclosed to the fugitive in the course of the extradition proceedings.

35.62. At the conclusion of the extradition proceedings, if extradition is granted, an extradition order will be made. This will usually be either in the form of a court order and/or judgment or a ministerial order, depending on the extradition scheme concerned. This will normally set out the basis upon which extradition is granted.

35.63. Once the order for extradition has become final, arrangements will be made for the collection of the accused by UK officers.

35.64. Practices vary between countries as to whether, at the same time as the fugitive is handed over into the custody of UK escort officers:

  • the EAW/extradition bundle
  • a copy of the order for extradition
  • a copy of any relevant judgment

are also handed over.

35.65. It will normally be necessary to schedule these documents as unused material because together they will show the basis upon which the foreign jurisdiction has agreed to the accused's extradition. Subject to the exceptions set out in sections 146, 150 and 151 of the Extradition Act 2003, the accused may only be prosecuted for those matters in respect of which he has been extradited.

35.66. To ensure that this happens, the UK escort officers should be instructed to obtain the documents in 35.63 when they collect the fugitive.

35.67. Upon return to the UK, the escort officers should immediately forward the documents in 35.63 above to the disclosure officer for inclusion in the unused material schedules.

35.68. The prosecutor and the disclosure officer should satisfy themselves that this has happened.

35.69. If, for any reason the documents mentioned in 35.63 are not returned with the accused, the escort officers should immediately inform the prosecutor. The prosecutor should then immediately contact the relevant authorities in the extraditing country and request them to forward them to him/her as a matter of urgency. When received, the documents should be forwarded to the disclosure officer for inclusion in the unused material schedules.

35.70. The prosecutor will also need to consider whether there is any variance between the case outlined in the extradition request and the actual Crown case is such that the defence may be able to raise an abuse argument.

35.71. Depending upon the agency responsible for the prosecution, it may be that the prosecution and the preparation of the extradition are handled by different lawyers. If this is the case, it is important that the extradition lawyer liaises closely with the prosecuting lawyer and disclosure officer to ensure that any potentially disclosable material generated during the extradition process is considered by the disclosure officer and, if appropriate, scheduled accordingly.

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Further particulars

35.72. Once an extradition request has been submitted, the authorities in the foreign territory concerned may ask for further details ('further particulars') about the case.

35.73. This may be because the request itself does not comply with the foreign territory's extradition legislation or because the defence raise arguments in the course of the extradition proceedings that cannot be answered by reference to the extradition request itself.

35.74. Where the authorities in the requested territory make a request for further particulars, such requests should be dealt with as a matter of urgency. If the requesting state has set a deadline for a response every effort should be made to meet the deadline. If this is not possible a full explanation setting out the reasons why the deadline cannot be met should be sent.

35.75. It is essential that the foreign authorities conducting the extradition in the foreign state on behalf of a UK prosecution agency are consulted and copied in to any material disclosed to the defence.

Liaison Magistrates and Liaison Officers

35.76. UK Liaison Magistrates and Liaison Officers may become aware of or generate potentially disclosable unused material. UK Liaison Magistrates and Liaison Officers cannot be regarded as 3rd parties but as either investigators or prosecutors with a duty to preserve potentially disclosable unused material. If the material remains in the hands of the foreign 3rd party the approach to be taken will be the same as for material arising out of mutual legal assistance.

Eurojust

35.77. Eurojust is a permanent organisation of judges and prosecutors, one from each of the 25 Member States of the EU, who support the activities of their competent national authorities in investigating and prosecuting serious cross-border criminal cases. It does so by co-ordinating the activities of the national authorities responsible for a particular case and facilitating the collection of evidence under EU and other international mutual legal assistance arrangements.

35.78. Eurojust is a body with legal personality, which means it is able to conclude formal agreements with other organisations and third States. It has the power to ask competent national authorities to initiate investigations and prosecutions.

35.79. The Eurojust Decision provides for conditions under which Eurojust may exchange information (including personal data) with Member States' competent national authorities, with EU bodies, international organisations and the competent national authorities of third countries. It may also store and process data, including personal data.

35.80. In order to fulfil its obligations Eurojust regularly convenes strategic meetings to examine particular criminal justice issues, for example, specific types of offending such as human trafficking or terrorism. In addition it conducts co-ordination meetings in respect of individual cases.

35.81. Eurojust may, in the course of performing these casework co-ordination meetings, create relevant and disclosable material in cases to be heard in England and Wales.

35.82. Applications for information held by Eurojust by UK investigating and prosecuting authorities would, in the first instance, need to be made to the UK National Member. Applications may also be made by any other 'competent authority'. Whether the investigator of prosecutor deem it necessary to do will depend on the circumstances of each a case applying the principles set out in chapter 34 at paragraphs 34.6 - 34.18, and chapter 4 of this manual.

35.83. Where it is not thought appropriate or reasonable to obtain Eurojust material, the accused may attempt to do so. An accused can apply to Eurojust for access to personal information. Article 19 of the Eurojust Decision, as well as its rules on data protection, establish this right but also set out various exceptions to it. An individual's request, in writing, can be submitted either directly to Eurojust or via the relevant authorities in a Member State of his/her choosing.

35.84. Any EU citizen and any natural or legal person residing in a EU Member State has a right to request access to documents held by Eurojust according to Article 39 of the Eurojust Decision. Eurojust also adopted on 13 July 2004 its own rules regarding public access to its documents. No justification for an application is necessary. Applications should be addressed to the Head of Legal Service of Eurojust. Access can be refused where disclosure would 'undermine the protection of the public interest, in particular the fulfilment of Eurojust's tasks in reinforcing the fight against serious crime and national investigations and prosecutions in which Eurojust assists'. Where access is denied an appeal can be addressed to the Administrative Director of Eurojust.

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Foreign claims for public interest immunity

35.85. In Alibhai the Court acknowledged that the public interest included not exposing a confidential foreign informant just as much as it applied to a UK informant.

35.86. Trial courts have been receptive to public interest immunity arguments put on the basis that it would not be in the public interest to jeopardise future co-operation from foreign states/bodies by disclosing material against the wishes of those states/bodies. It may therefore be appropriate to apply for PII on this basis in respect of material that has been provided by an overseas authority on the condition that it is not disclosed to the defence or in court proceedings.

35.87. Where there are reasonable grounds to believe that potentially disclosable material is held by an intelligence agency in another country the Head of London Division, CPS Organised Crime Division, Ludgate Hill should be notified for guidance to be given.

35.88. Section 16 of the CPIA 1996 would permit a foreign third party to be heard on a PII claim although the primary duty of disclosure rests with the prosecutor and ideally the prosecutor should bring PII claims. It should only be in exceptional cases that a foreign third party feels the need to be heard in such a claim.

Disclosure to overseas authorities

35.89. Competent foreign judicial authorities make requests (by letter of request or commission rogatoire) for mutual legal assistance in the form of the gathering and transmission of evidence. Sometimes these authorities may request the sending of evidence (including material that may be being handled as unused material) that has already been gathered in the course of an investigation.

35.90. In respect of evidence situated in England and Wales, requests will be generally be received by the UK Central Authority at the Home Office and passed for execution to the Interpol liaison officer of the police force for the area within which the evidence is situated. Some forces, such as the Metropolitan Police, use specialist teams to do this work. Where the evidence or unused material has already been gathered in a domestic investigation the request for assistance may be passed for execution to the investigating officers.

35.91. Whilst Crown Prosecutors have the same powers as a judge or a Justice of the Peace to make a request for mutual legal assistance, the CPS has no formal involvement in the execution of incoming requests. In the majority of cases, prosecutors are not therefore generally involved in this work. Force legal advisors will give any advice to police that may be required.

35.92. There are however circumstances in which the CPS may become involved in a request for assistance from abroad:

  • occasionally the CPS may receive an informal request for assistance from a foreign investigator or prosecutor, either directly or via the police. This will probably occur when there are foreign proceedings running in parallel to UK proceedings, especially where the foreign authority and the CPS have already had direct contact, for example in order to negotiate issues of jurisdiction or where the material sought is in the hands of the CPS
  • if the police receive a request for assistance in the form of material gathered in an investigation in respect of which criminal proceedings in the UK are contemplated or have been commenced, the police should consult the CPS before sending any material to the foreign authority
  • where the material sought was obtained by a Letter of Request made by a Court or a Crown Prosecutor, those executing the request should seek the guidance of the CPS, as by law it will usually not be possible for this material to be transmitted to a third party without the consent of the authority that originally provided the material.

35.93. As a general rule the same considerations apply to the supply of material to a foreign authority in response to a request for assistance as apply to any other request for the provision of material to a third party.

35.94. The primary consideration for the prosecutor in dealing with such a request will usually be the risk that UK criminal proceedings might be jeopardised, the clearest example being unused material that has been withheld from the defence following a PII application. Prosecutors should also give careful thought to the interests of third parties in conjunction with the police.

35.95. No assumptions should be made as to how any material may be treated by foreign authorities. If the material is sensitive it should never be supplied where there is any uncertainty as to how the material may be handled by the foreign authorities. In some cases it may be appropriate to seek written assurances before material is released.

35.96. Prosecutors may seek guidance from specialists in CPS Headquarters before taking any action in relation to a foreign request for assistance. Guidance may be advisable where execution of the request is to be refused or delayed.

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