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Chapter 5: Relevance, Recording and Retention

5.1. The Code of Practice requires that material of any kind, including information and objects, which is obtained in the course of a criminal investigation as defined by the CPIA 1996 and which may be relevant to the investigation must be retained.

5.2. Material which may be relevant to the investigation is defined in the Code of Practice as anything that appears to an investigator, or the officer in charge of an investigation or the disclosure officer to have some bearing on any offence under investigation or any person being investigated or on the surrounding circumstances unless it is incapable of having any impact on the case.

5.3. This includes not only material coming into the possession of the investigator (such as documents seized in the course of searching premises) but also material generated by the investigator (such as interview records).

5.4. A criminal investigation is defined in the CPIA 1996 as an investigation conducted by police officers with a view to it being ascertained whether a person should be charged with an offence, or whether a person charged with an offence is guilty of it.

5.5. The Code of Practice expands this by stating that a criminal investigation includes:

  • investigations into crimes that have been committed
  • investigations whose purpose is to ascertain whether a crime has been committed, with a view to the possible institution of criminal proceedings and
  • investigations which begin in the belief that a crime may be committed. For example, a surveillance operation is part of an investigation even if it is directed to a target without there being a specific offence in mind.

5.6. This means that information and material arising out of operations conducted purely for intelligence purposes might become disclosable (subject to public interest immunity (PII) considerations). Officers involved in intelligence operations should regularly and actively consider whether the information that they have has a bearing upon any live investigations or prosecutions, and if so, act quickly to ensure it is brought to the attention of the disclosure officer and prosecutor.

5.7. If material with an evidential value has been destroyed, there is a danger that a court may stay the prosecution for abuse of process.

5.8. In discharging their obligations under the CPIA 1996, the Code of Practice, the Attorney General's Guidelines, the common law and these operational instructions, investigators should always err on the side of recording and retaining material where they have any doubt as to whether it may be relevant.

5.9. Material includes information given orally. Where relevant material is not recorded in any way, it will need to be reduced into a suitable form.

5.10. It is the responsibility of the officer in charge of the investigation to ensure that the material is recorded in a durable or retrievable form, for instance, in writing, on video or audiotape, or on computer disk.

5.11. The issue of relevance is especially important where an investigator is considering whether:

  • to throw something away, or
  • to return an item to the owner, or
  • not to record information, or
  • where not keeping material or recording information would result in the permanent loss or alteration of the material (as with reusable control room tapes, shop videos etc).

5.12. As a general rule, pure opinion or speculation, for example police officers' theories about who committed the crime, is not unused material. However, if the opinion or speculation is based on some other information or fact, not otherwise notified or apparent to the prosecutor, that information or fact might well be relevant to the investigation and should be notified to the prosecutor in accordance with these instructions.

5.13. Reports, advices and other communications between the CPS and police in themselves will usually be of an administrative nature or derivative in that they contain professional opinion based on evidential material or material already subject to revelation. They will usually have no bearing on the case and thus will not be relevant. If the content of any such document is however relevant and not recorded elsewhere then the material should be dealt with in accordance with these instructions and described on the appropriate schedule. The prosecutor must not assume that there is no basis for disclosure.

5.14. Disclosure officers, or their deputies, must inspect, view or listen to all material that is or may be relevant. Generally this will mean that such material must be examined in detail by the disclosure officer or his deputy, but occasionally the extent and manner of inspecting, viewing or listening will depend on the nature of material and its form. For example, it might be reasonable to examine digital material by using software search tools, or to establish the contents of large volumes of material by dip-sampling. If such material is not examined in detail, it must nonetheless be described on the disclosure schedules accurately and as clearly as possible. The extent and manner of its examination must also be described together with justification for such action.

5.15. Early in an enquiry it may not be possible to make a considered decision on the relevance of an item until later in the case when the facts are clearer. However, at any time the considerations that the investigator should bear in mind will include:

  • whether the information adds to the total knowledge of how the offence was committed, who may have committed it, and why
  • whether the information could support an alternative explanation, given the current understanding of events surrounding the offence
  • what the potential consequences will be if the material is not preserved.

5.16. Negative information can sometimes be as significant to an investigation as positive information. It is impossible to define precisely when negative information may be significant, as every case is different. However it will include the result of any enquiry that differs from what might have been expected, given the prevailing circumstances. Not only must material or information that points towards a fact or an individual be retained, but also that which casts doubt on the suspect's guilt, or implicates another person. Examples of negative information include:

  • a CCTV camera that did not record the crime/location/suspect in a manner which is consistent with the prosecution case. (The fact that a CCTV camera did not function or have videotape loaded will not usually be considered relevant negative information.)
  • where a number of people present at a particular location at the particular time that an offence is alleged to have taken place state they saw nothing unusual
  • where a finger-mark from a crime scene cannot be identified as belonging to a known suspect
  • any other failure to match a crime scene sample with one taken from the accused.

5.17. It is important to record promptly any information from any source, which might be considered relevant to the investigation. A record should be made at the time the information is obtained, or as soon as practicable after that time.

5.18. Sometimes it is not practicable to retain the initial record because it forms part of a larger record which is to be destroyed, for example, control room audio tapes, custody suite video tapes, traffic car videos of speeding offences, or other similar recordings. Where this is the situation, the officer in charge of the investigation should identify information that should be retained, and ensure that it is transferred accurately to a durable and retrievable form before the tapes are destroyed.

5.19. Investigators should be alert to the potential relevance and evidential value of information contained in messages that might not normally be retained; for example, running commentaries and details of a pursuit. Investigators should make a record of conversations with experts and other investigators, where the information discussed is likely to be relevant to the case and is not recorded elsewhere.

5.20. Whether in original or copy form, details of preserved messages should be listed on the schedule(s) in the normal way.

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Information recorded on computer

5.21. It is difficult to give clear-cut guidance on the approach to be adopted when dealing with information recorded on computer, owing to the wide range of investigative computer systems employed throughout the Police Service. But many computer systems (for example, Holmes2) generate material in the form of a hard copy. This should be treated in the same way as relevant material from any other source.

5.22. The investigator or disclosure officer will need to inform the prosecutor of the use of such systems, and the disclosure officer should describe any hard copies produced on the schedules. Local arrangements may need to be agreed as to the means by which the prosecutor can inspect material held on computer systems. Where material is to be disclosed to the defence under the CPIA 1996, supervised access to a terminal screen may be appropriate. Material may be supplied on a disk where this is acceptable to the accused and the disclosure officer.

5.23. Information contained in emails may be relevant unused material, particularly if the information is not recorded elsewhere. It should be recorded, retained and revealed in the same way as other relevant material. (Where however, emails are intercepted under section 5 of the Regulation of Investigatory Powers Act 2000, revelation and disclosure is specifically prohibited.)

Retention

5.24. Where material was obtained in the course of an investigation because the investigator originally considered it potentially relevant, but it has in fact no bearing on the offence, the offender or the surrounding circumstances, it need not be retained further. If it is retained, it should not be handled in accordance with the CPIA 1996. However the investigator should err on the side of caution in coming to this conclusion and seek the advice of the prosecutor as appropriate.

5.25. If during the lifetime of a case, the officer in charge of an investigation or the prosecutor becomes aware that material previously examined but not retained may have become relevant as a result of new developments, paragraph 5.3 of the Code of Practice will apply. The officer should take steps to recover the material wherever practicable, or ensure that it is preserved by the person in possession of it.

5.26. Particular categories of material that must be retained are listed in paragraphs 5.4 and 5.5 of the Code of Practice. The list is not exhaustive, and there may be other material that must be retained because it may be relevant. Examples of specific items which fall into these categories are listed in Annex A.

5.27. Whatever the source, if the material is relevant, it must be retained. Material may be photographed, video-recorded, captured digitally or otherwise retained in the form of a copy rather than the original at any time, if the original is perishable; the original was supplied to the investigator rather than generated by him and is to be returned to its owner; or the retention of a copy rather than the original is reasonable in all the circumstances.

5.28. Material seized under the provisions of PACE will be subject to the retention provisions of section 22 PACE and PACE Code B.

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