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Chapter 4: Reasonable lines of enquiry and third parties

Lines of enquiry

4.1. Duties of disclosure under the CPIA 1996 are imposed upon two categories of persons only: the investigator and the prosecutor. All other categories of persons are to be treated as third parties, rather than as belonging to the prosecuting or investigating team. Third parties frequently encountered will include:

  • owners of CCTV material
  • social services departments
  • forensic experts
  • police surgeons
  • GPs and hospital authorities.

4.2. There is a duty under the Code of Practice for an investigator to pursue all reasonable lines of enquiry, whether these point towards or away from a suspect. What is reasonable will depend upon the circumstances of a particular case.

4.3. Where police and another investigating agency (such as the Immigration Service, or a foreign police force) undertake a joint investigation, material obtained within the remit of that joint investigation should be treated as prosecution material and dealt with in accordance with this manual.

4.4. Investigators, disclosure officers and prosecutors must have regard to whether relevant material may exist in relation to other linked investigations or prosecutions. Reasonable enquiries must be carried out to establish whether such material exists and, if so, whether it may be relevant to the instant prosecution.

4.5. Reasonable lines of enquiry may include enquiries as to the existence of relevant material in the possession of a third party. It is not necessary to make speculative enquiries, but frequently the existence of the material will be known or can be deduced from the circumstances. For example, where a child witness is in the care of the local authority, the social services may have relevant material relating to the allegation under investigation.

4.6. A third party has no obligation under the CPIA 1996 to reveal material to the investigator or to the prosecutor, nor is there any duty on the third party to retain material which may be relevant to the investigation. In some circumstances, the third party may not be aware of the investigation or prosecution.

4.7. If the officer in charge of the investigation, the investigator, or the disclosure officer believes that a third party holds material that may be relevant to the investigation, that person or body should be told of the investigation. They should be alerted to the need to preserve relevant material. Consideration should be given as to whether it is appropriate to seek access to the material, and if so, steps should be taken to obtain such material. It will be important to do so if the material or information is likely to satisfy the disclosure test. A letter should be sent to the third party together with the explanatory note, specimens of which can be found at Annex B and B1. (The principles and procedures relevant to dealing with third parties who may be in possession of unused material are summarised in the note).

4.8. The disclosure officer should inform the prosecutor of the identity of the third party and the nature of the material the third party is believed to possess by way of the MG6. In some circumstances it may be appropriate for the disclosure officer and the investigator to consider with the prosecutor whether the third party should be approached and further material sought or inspected.

4.9. If material relevant to the investigation comes to the knowledge of the investigator and is then obtained from a third party, it will become unused material or information within the terms of the Code of Practice. This applies particularly to relevant information conveyed verbally by the third party. Any such material should be recorded in a durable or retrievable form (for example potentially relevant information revealed in discussions at a child protection conference attended by police officers). It will have to be recorded on the appropriate schedule and revealed to the prosecutor in the usual way.

4.10. If the disclosure officer alerts the prosecutor to the possibility that a third party has material or information that has a bearing on the case or where it may be deduced from the circumstances of the case, the prosecutor should consider whether it is appropriate to advise the police to seek access to the material as part of their duties to explore all reasonable lines of enquiry.

4.11. In R v Alibhai, [2004] EWCA Crim 681, the Court of Appeal held that under the CPIA 1996 the prosecutor is only under a duty to disclose a third party's material if that material had come into the prosecutor's possession and the prosecutor was of the opinion that such material satisfied the disclosure test. Before taking steps to obtain third party material, the Court emphasised that it must be shown that there was a suspicion that the third party not only had relevant material and that the material was not merely neutral or damaging to the accused but satisfied the disclosure test.

4.12. Furthermore, R v Alibhai states that even if there is the necessary suspicion, the prosecutor has a "margin of consideration" as to what steps to take in any particular case and was not thus under an absolute obligation to obtain material that was suspected to satisfy the disclosure test.

4.13. In advising the police on whether to approach a third party, the prosecutor should consult with the disclosure officer, the investigator and if necessary with the officer in charge of the investigation. Where a local protocol for the social services material has been adopted, prosecutors should access and handle material in accordance with its terms.

4.14. Any material provided by a third party at the request of the investigator and supplied to the investigator will also be subject to the requirements of the CPIA 1996.

4.15. If relevant material held by third parties is inspected by the police but not retained, a record of its content must be made. This should then be referred to on the appropriate schedule. An example might be where an investigator examines relevant material held by a third party, but decides not to obtain it. The record of information obtained in this way should then be assessed for sensitivity and disclosure to the defence as for all other unused material.

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Obtaining access to third party material

4.16. Where having received a request from the investigator or prosecutor the third party refuses to co-operate, the prosecutor should consider whether to make an application for a witness summons. Where the prosecutor believes that there is material that satisfies the disclosure test, he or she should nevertheless only make an application where the statutory conditions are satisfied as set down in section 97 of the Magistrates' Court Act 1980 or in the Crown court, section 2 Criminal Procedure (Attendance of Witnesses) Act 1965 as amended.

4.17. Where access to the material is declined or refused by the third party and the investigator believes that it is reasonable to seek production of the material before a suspect is charged because he or she believes it is likely to be relevant evidence and of substantial value, the investigator may consider making an application under Schedule 1 of the Police and Criminal Evidence Act (PACE) 1984, (Special Procedure Material), a search warrant and/or the Bankers Books Evidence Act 1935. The investigator may seek advice of the prosecutor before such an application is made.

4.18. The statutory requirements in section 97 of the Magistrates' Court Act 1980 and section 2 Criminal Procedure (Attendance of Witnesses) Act 1965 as amended are more stringent than the disclosure test. Items sought under the summons procedure must be 'likely to be material evidence,' (which the House of Lords in R v Derby Magistrates' Court ex parte B [1995] 4 All ER 526 has construed to mean 'immediately admissible per se.') Accordingly, there should be consultation between the investigator and the prosecutor before any application to the court is made to assess whether it can properly proceed. (The transcript of R v Brushett (2001) Crim LR 471, illustrates an approach, commended by the Court of Appeal, where a pragmatic and co-operative stance was taken by social services and material revealed to the prosecution).

4.19. Before applying for the witness summons it may be appropriate to make a formal request directly to the third party (see specimen letter at Annex B1). The request should explain:

  • what material or information it is thought that the third party holds
  • the reasons why access to the material is sought
  • the known or suspected issues in the case
  • what will happen to the material if it is released
  • that views are invited from the third party on whether the material is considered sensitive
  • what will happen if the material is not released.

4.20. A suitable time should be given for a response before making the application for the witness summons.

4.21. Applications for witness summonses must be in accordance with Part 28 of the Criminal Procedure Rules.

4.22. If the prosecutor believes there is relevant material which the third party has declined to reveal, but grounds for witness summons are not made out, the prosecutor should notify the court and where appropriate the defence (unless in the case of the defence, for example, an intelligence operation could be compromised).

4.23. Where material is obtained from third parties, the investigator should discuss with them whether any sensitivities attach to the material that might influence whether it is used as evidence, or otherwise disclosed to the defence, or whether there may be public interest reasons that justify withholding disclosure. The third party's view must be passed to the prosecutor using the MG6D.

Public bodies as third parties

4.24. Where it appears to an 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 such material. Although what is reasonable will vary from case to case, prosecutors should inform the department or other body of the nature of the prosecution case and of the issues in the case in respect of which the department or body might possess relevant material, and ask whether the departments or other body has such material.

4.25. Departments in England and Wales should have identified personnel as established Enquiry Points to deal with issues concerning the disclosure of information in criminal proceedings.

4.26. Public authorities ought to recognise an obligation to respond to a request for information for the purposes of a criminal investigation or prosecution, and Government departments will always do so.

4.27. It should be remembered that investigators, disclosure officers and prosecutors cannot be regarded to be in constructive possession of material held by Government departments or Crown bodies simply by virtue of the status as Government departments or Crown bodies.

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