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Chapter 8: The Sensitive Material Schedule

Assessment of sensitivity and schedule preparation

8.1. This schedule should be used to reveal to the prosecutor the existence of unused material which the disclosure officer believes should be withheld from the defence because it is not in the public interest to disclose it. However, such material must be revealed to the prosecutor.

8.2. The disclosure officer must describe on the MG6D any material the disclosure of which he or she believes would give rise to a real risk of serious prejudice to an important public interest and the reason for that belief. This form will not be disclosed to the defence.

8.3. In those cases where there is no sensitive unused material, the disclosure officer should endorse and sign an MG6D to this effect and should submit this together with the MG6C and MG6E.

8.4. To assist the officer in considering the examples given in the Code of Practice paragraph 6.12, reference should be made to the following associated public interests:

  • the ability of the security and intelligence agencies to protect the safety of the UK
  • the willingness of foreign sources to continue to cooperate with UK security and intelligence agencies, and law enforcement agencies
  • the willingness of citizens, agencies, commercial institutions, communications service providers etc to give information to the authorities in circumstances where there may be some legitimate expectation of confidentiality (e.g. Crimestoppers material)
  • the public confidence that proper measures will be taken to protect witnesses from intimidation, harassment and being suborned
  • the safety of those who comply with their statutory obligation to report suspicious financial activity (whilst they are under a statutory obligation and therefore do not give suspicious activity reports in confidence, their safety is a consideration to be taken into account in disclosure decisions)
  • national (not individual or company) economic interests
  • the ability of the law enforcement agencies to fight crime by the use of covert human intelligence sources, undercover operations, covert surveillance etc
  • the protection of secret methods of detecting and fighting crime
  • the freedom of investigators and prosecutors to exchange views frankly about casework.

8.5. These lists are not check-lists. Other items not listed there may be sensitive and not in the public interest to disclose, but equally, items listed there may not cause any harm to the public interest if disclosed. The examples are not 'classes' of material. Each item must be considered independently before it is included in the sensitive schedule and before any claim for public interest immunity from disclosure is made.

8.6. Some items by their very nature will reveal why disclosure should be withheld. Others require more explanation. Careful attention to this element of the schedule will avoid further enquiries and consequent delay. Both the 'Description of item' and the 'Reasons for sensitivity' sections must contain sufficient information to enable the prosecutor to make an informed decision as to whether or not the material itself should be viewed. Schedules containing insufficient information will be returned by the prosecutor. If there is any doubt about the sensitivity of the material, the prosecutor should be consulted.

8.7. In order to make a proper assessment of the material which is said to be sensitive, the prosecutor will need to be fully informed of its contents or see the material or part of it. In cases where it is not possible to describe the nature of the material in sufficient detail to enable the prosecutor to determine whether or not it should be viewed, it will be for the disclosure officer to make arrangements with the prosecutor to view the material with an appropriate level of physical and personal security.

8.8. The police and the CPS must always take care to protect intelligence information and information given to the police in confidence. That will be so whether or not it is thought likely that the court will order its disclosure. If the investigator is unsure whether information was given in confidence, the position should be clarified with the person who provided the information.

8.9. When the schedule and any material are sent to the prosecutor, a protective marking should be applied to it consistent with the level of sensitivity of its contents. This will determine the manner in which the material is conveyed to, and stored by the CPS. Reference should be made to the current policy as to the detailed categorisation of different types of sensitive material as Restricted, Confidential, Secret or Top Secret. Guidance is given in the section that deals with Security of sensitive material schedules and unused material, which itself is a restricted document.

8.10. In deciding sensitivity it is important to bear in mind that the sensitivity of the schedule and the sensitivity of the information may differ. The security marking will depend on what is being submitted to the prosecutor; if the material itself is to accompany the schedule the content of the material will determine the marking. If the schedule alone is submitted the content of the schedule will determine its security marking.

8.11. Sensitive unused material and schedules relating to informants, observation posts or undercover operations will normally be treated as Confidential.

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Dealing with sensitive material that satisfies the disclosure test

8.12. The prosecutor has a duty under the CPIA 1996 to consider whether sensitive material satisfies the disclosure test.

8.13. To assist the prosecutor to decide how to deal with disclosable sensitive material, the investigator and disclosure officer(s) should provide detailed information dealing with the following issues:

  • the reasons why the material is said to be sensitive
  • the degree of sensitivity said to attach to the material, in other words, why it is considered that disclosure will create a real risk of serious prejudice to an important public interest
  • the consequences of revealing to the defence;
    • the material itself
    • the category of the materia
    • the fact that an application may be made
  • the apparent significance of the material to the issues in the trial
  • the involvement of any third parties in bringing the material to the attention of the police
  • where the material is likely to be the subject of an order for disclosure, what the police view is regarding continuance of the prosecution
  • whether it is possible to disclose the material without compromising its sensitivity.

8.14. To assist in determining the degree of sensitivity as above, consideration should be given to the fact that the public interest may be prejudiced either directly or indirectly through incremental or cumulative harm.

8.15. Examples of direct harm are:

  • exposure of secret information to enemies of the state
  • death of or injury to an intelligence source through reprisals
  • revelation of a surveillance post and consequent damage to property or harm to the occupier
  • exposure of a secret investigative technique.

8.16. Examples of incremental or cumulative harm are:

  • exposure of an intelligence source that does not lead to a risk of death or injury, or any reprisal, to that intelligence source, but which discourages others from giving information in the future because they lose faith in the system
  • revelation of a surveillance post leading to a reluctance amongst others to allow their premises to be used
  • exposure of an investigative technique that makes the criminal community more aware and therefore better able to avoid detection
  • exposure of material given in confidence, or for intelligence purposes, that may make the source of the material, or others, reluctant to cooperate in the future (e.g. CrimeStoppers material)
  • an active denial that a source was used in the instant case, leading to the inability to deny it in future cases where one was used, thereby impliedly exposing the use of a source. The Crown should neither confirm nor deny the use of a source.

8.17. The prosecutor must be satisfied that the risk is real, not fanciful. The prosecutor must be in a position to explain to the court the ground upon which it is asserted that there is a real risk of serious prejudice to an important public interest.

8.18. The examples of material that might attract public interest immunity (PII) in paragraph 6.12 of the Code of Practice do not define classes of material; they are examples only and whether the disclosure of an individual document would be likely to give rise to a real risk of serious prejudice to an important public interest must be assessed in each case. Whilst some of the examples are always likely to carry that real risk, not all will and the prosecutor must assess the risk to the public interest of the disclosure of that document in the individual case, whilst also having regard to the risk of incremental or cumulative damage to the public interest.

8.19. The prosecutor must be satisfied that the prejudice that is anticipated from disclosure of a document is a serious, not a trivial, risk. Again, as with 'real risk', this is an assessment that must be made on an individual basis, having regard to the risk of incremental or cumulative damage to the public interest.

8.20. Where material is disclosed having been edited to protect the public interest the original itself should not be marked. The defence should be informed of the action taken, although this will normally be clear from the appearance of the document itself. Application will have to be made to the court to withhold the remainder if it requires disclosure under the CPIA 1996.

8.21. It may be possible to separate non-sensitive from sensitive parts of documents and describe them on different schedules. For example if the fact of surveillance is obvious from the evidence, an authorisation under the Regulation of Investigatory Powers Act might neither be nor contain anything sensitive. It may therefore be scheduled on the MG6C. On the other hand, the application part of the document will invariably contain sensitive material and should be scheduled on the MG6D. This is a particularly useful way of dealing with RIPA authorities.

8.22. Where the prosecutor decides:

  • that sensitive material requires disclosure to the accused because it satisfies the disclosure test, and
  • in consultation with the police, that it is not possible to disclose in a way that does not compromise the public interest in question, and
  • that disclosure should be withheld on public interest grounds,

the ruling of the court must be sought or the case abandoned.

8.23. Neutral material or material damaging to the accused need not be disclosed and, unless the issue of disclosability is truly borderline, should not be brought to the attention of the court (per the House of Lords in R v H and C). This places a heavy onus on the police and prosecutors to be aware of all factors which might affect the legality of or admissibility of evidence from sensitive sources or procedures.

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Consultation

8.24. Before an application is made to the court, the prosecutor will need to consult the police. This should take place at a senior level, and a senior officer (who may be independent of the investigation) should be involved. Others may also be consulted, including the officer in charge of the investigation, and in Crown court cases, the prosecution advocate.

8.25. Consultation will include a careful examination of the circumstances of the case and the nature of the sensitive material. Rather than apply to the court, the prosecutor may be able to disclose the material in a way that does not compromise the public interest in issue. Material may, for example;

  • be edited,
  • summarised, or
  • formally admitted.

8.26. For consultation to be effective, the officer in charge of the investigation should ensure that the prosecutor is provided with the information necessary to make a proper decision on how any application is to be made. This should be in documentary form, unless the information is so sensitive that it would be inappropriate to fully describe it in writing. See the section of the guidance that deals with handling highly sensitive material.

On the basis of the information provided at the consultation, the prosecutor will decide whether an application should be made, and the form of application required.

Flowchart of sensitive material and PII applications

Flowchart of sensitive material and PII applications

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