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Disclosure of Material to Third Parties

Introduction

The CPS is sometimes asked to supply to third parties copies of documents held in prosecution files. The request might be made for the purpose of prosecuting or defending a private prosecution; for civil proceedings; for proceedings involving interested third parties such as local authorities in child care cases, NOMS, Criminal Injuries Compensation Authority; or miscellaneous requests for the purpose of local crime prevention initiatives etc.

This chapter aims to outline:

  • general principles governing the disclosure of material to third parties;
  • the application of these general principles to specific types of material commonly held by the CPS;
  • the application of these general principles to the most common types of request made to the CPS.

The guidance in this chapter is not to be confused with:

  • Questions of disclosure of material to defendants in criminal proceedings, and after conviction; or applications by defendants to use unused material protected by Section 17 and 18 of the Criminal Procedure and Investigations Act 1996. Refer to The Disclosure Manual elsewhere in this guidance.
  • Disclosure of information to members of the public (see CPS Briefing Guide to Parliament and legal guidance chapter on Data Protection and Freedom of Information).
  • Guidance about public interest immunity and its effect on disclosure decisions is not addressed in any detail in this section, except to indicate when it may arise and to outline the procedure for claiming PII in civil proceedings.

Role of the CPS in dealing with requests, and liaison with the police

The statutory role of the Crown Prosecution Service is to advise the police in certain circumstances, and to conduct criminal prosecutions. The police provide evidence and information to enable the CPS to carry out these statutory functions.

In principle the material we receive to enable us to carry out our statutory functions should be treated by the CPS as having been supplied to us only for those purposes, whether it has been provided by the police or by another source, for example, the accused. For this reason, as well as the need to protect the legitimate interests of individuals, it is necessary to take care when considering requests for disclosure of prosecution material to a third party.

Requests for the disclosure of material might be made to the police or the CPS. The ownership of witness statements has not been judicially resolved. Statements are made to the police, but often the originals are supplied to the CPS and, in committals, tendered to the Magistrates' Court and then forwarded to the Crown Court. At any given time the statement can be in the possession of one of a number of agencies in the criminal justice system and many requests could legitimately be made to the police, the CPS or even the Crown Court.

There is no reason why the Service should not deal with requests made to the CPS, notwithstanding considerations as to ownership or possession, as in most cases the party will be seeking a copy. It is already common practice within the CPS to deal with these requests.

But it follows from the principle set out above that the CPS may legitimately regard the police, at least in some instances as the more appropriate authority to take decisions about onward disclosure. They are the originators of the material and the primary law enforcement authority. The CPS can and should of course advise the police of relevant considerations and safeguards. Examples of requests that ought to be made or directed to the police are indicated in this section.

Where the CPS deals with the request or is asked to advise, it is important to liaise with the police. Disclosure should not take place before the police have been consulted. The same considerations apply where a decision not to prosecute or to discontinue proceedings has been made.

The CPS should always advise and/or deal with requests made while criminal proceedings are being pursued. This is to avoid prejudicing any trial and/or continuing investigation. Where the CPS is merely advising on proceedings, or proceedings have concluded, requests can often be directed to the police. Other examples of requests that the CPS would expect to deal with and/or advise on include requests from private prosecutors, other prosecuting authorities, cases in which the CPS is or may be a party to any prospective proceedings, cases of complexity, for example, those involving linked proceedings in the civil and criminal courts such as may occur in child abuse cases.

Post Conviction Disclosure

The statutory duty of disclosure under the Criminal Procedure and Investigations Act (CPIA) 1996 ceases once a prosecution has been concluded (save for circumstances where we become aware of material which might render a conviction unsafe), see Section 7A CPIA 1996 and paragraph 72 of the Attorney General's Guidelines on Disclosure.

The above principle was reaffirmed by the Administrative Court in the case of Nunn v The Chief Constable of the Suffolk Constabulary [2012] EWHC 1186 and then later in R (Nunn) (Appellant) v Chief Constable of Suffolk Constabulary and another (Respondent) [2014] UKSC 37.

As stated in the previous section, whilst in principle there is no reason why the CPS should not deal with requests for post conviction disclosure of prosecution case papers, where requests are made by defence solicitors who did not act for a defendant during previous criminal proceedings, such requests should be directed firstly to the original defence solicitors/legal representatives or to the police. This position is the same in relation to requests from interested third parties i.e. their requests should be directed to the police.

Where the CPS is merely advising on proceedings, or proceedings have concluded, requests can often be directed to the police. Other examples of requests that the CPS would expect to deal with and/or advise on include requests from private prosecutors, other prosecuting authorities, cases in which the CPS is or may be a party to any prospective proceedings, cases of complexity, for example, those involving linked proceedings in the civil and criminal courts such as may occur in child abuse cases.

Prosecutors must consider each request on a case by case basis and decide whether or not they are able to deal with the request or if they feel it should be dealt with by the police. For actions if the decision is made to complete non-statutory disclosure see the next section - General Principles.

In R (Nunn) (Appellant) v Chief Constable of Suffolk Constabulary and another (Respondent) [2014] UKSC 37, the duty of post conviction disclosure was stated as any material coming to light that might cast doubt on the safety of the conviction should be disclosed.

In summary, the approach set out in Nunn was as follows. The common law duty of disclosure exists in addition to the statutory duty of trial disclosure created by the Criminal Procedure and Investigations Act 1996. The basis of the common law duty is fairness, and what fairness requires varies depending on the stage reached by the proceedings. There is no basis for the submission that the full 'trial' duty of disclosure and investigation continues indefinitely: this would be contrary to the public interest in finality and to the need for finite police resources to be appropriately applied. The extent of the common law duty post-appeal is correctly stated in the Attorney- General's guidelines: any material coming to light that might cast doubt on the safety of the conviction should be disclosed. However, the Criminal Cases Review Commission can, in appropriate cases, make enquiry to see whether a reasonable prospect of a conviction being quashed can be demonstrated, which includes a power to direct new scientific tests and similar. Moreover, the police and prosecutors can choose to accede to representations for further enquiry made on behalf of convicted persons, and should exercise sensible judgment in relation to such representations.  

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Guidance

General Principles

When dealing with requests for the disclosure of material in the possession of the CPS, the following general principles need to be taken into account. There are special considerations which may arise because of the particular status of the third party, or because of the special nature of the proceedings. These considerations are referred to later in this section.

Nature of request and person making request

Information may only be supplied to a person with a genuine interest in the proceedings or contemplated proceedings in question. The various types of proceedings are considered later on, but examples include persons who are bona fide engaged in or contemplating civil proceedings or solicitors or insurance companies acting on their behalf. Requests must also be scrutinised to ensure that the requested material is relevant to the proceedings and that the party concerned is not conducting a "fishing" exercise.

Consent of the Maker

People who make statements to the police do so in the anticipation that their statements are likely only to be used in criminal proceedings. Furthermore, since the Magistrates' Courts (Witnesses Addresses) Rules 1990, which came into force on 2.4.90, most witnesses will have made statements in the belief that their addresses will not be disclosed without their consent. We consider that it would be wrong to use the statement for any other purpose without consulting the maker.

In practice, obtaining consent may present difficulties. The onus for obtaining consent is on the third party seeking disclosure, but since the introduction of the Witness Address Rules, the address of the maker will not appear on the statements and should not be provided without consultation. When requests are received it is suggested that the matter be approached on the following lines:

  • the police should be asked to contact the witness and explain that a bona fide request has been made for a copy of the statement;
  • the witness should be asked whether there is any objection to his or her name being given to a third party so that the third party can communicate direct. It should be pointed out that if the witness has no objection, perhaps they could indicate then and there whether any objection would be made to the statement being disclosed by the CPS;
  • in cases where the witness has no such objection, disclosure can be made;
  • in circumstances where the witness has no objection to the address being provided but wishes for the third party to communicate direct with them on the question of release of the statement, then the address can be notified to the third party;
  • if consent to the disclosure of the address is refused, the officer should try to obtain in writing the reasons for the refusal. The witness should be warned that the CPS will have to give careful consideration to whether the interests of justice require us nevertheless to make disclosure (for example in urgent care proceedings), see later in this section;
  • if the Crown Prosecutor decides to overrule the wishes of the witness the statement will be provided, and the witness should be notified and informed of the reasons. In circumstances of great urgency where the interests of justice demand that the statement should be provided notwithstanding any objections that the witness may have, the reasons should always be noted on the file. If time permits, the party seeking disclosure should be advised to seek an order of the court before the wishes of the witness are overridden;
  • if a witness cannot be traced, the Crown Prosecutor will exercise discretion about the disclosure of the statement;
  • if, for some reason, it is not appropriate for the police to contact the witness, then the third party should be invited to send a letter for the witness to the CPS, who can then forward that letter on, with advice to the witness, setting out the points covered earlier in this paragraph.

These steps are only suggested guidelines which will cover most situations, but the Service must ensure that wherever possible the witness is consulted before a decision to disclose an address and/or statement is made. There is nothing to preclude the CPS communicating direct with the witness in appropriate circumstances.

These considerations do not apply where a witness requests a copy of his or her own statement. This can be supplied on request except when criminal proceedings are pending. Refer to the Witnesses Statements and Memory Refreshing guidance.

If disclosure is made in a case that is still "live" before the Crown Court, there should be no disclosure without informing the Chief Clerk at the Crown Court. But see the following paragraph.

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Completion of Proceedings

It will not be usual to disclose material until the proceedings have been completed. This is to ensure that the criminal trial process and any continuing police enquiries are not prejudiced. There is no need to delay disclosure until normal methods of appeal are exhausted. The comments of Lord Reid in (Conway v Rimmer (1968) I All ER 874) at page 889 are relevant:

"... it would generally be wrong to require disclosure in a civil case of anything which might be material in a pending prosecution, but after a verdict has been given, or it has been decided to take no proceedings, there is not the same need for secrecy."

Public interest immunity considerations

Sometimes the request from the third party for material they claim is relevant to the conduct of their case, may attract public interest immunity considerations. Claiming PII in civil proceedings is addressed at the end of this section.

Impartiality of the CPS

It is important that the CPS is totally impartial when considering questions of disclosure. If disclosure is made without an order of the court, other parties involved in the proceedings should be provided with the same documents or information.

Undertaking of confidentiality from the third party

It must be made clear to the party requesting the material that disclosure is made solely for the purpose of the proceedings in question, and that the material should not be disclosed to any other person. An undertaking of confidentiality by the third party will not always readily be given. However, there is an implied undertaking in civil proceedings by the party on whom documents are served that they will not be used for a collateral or ulterior purpose. The decision in (Home Office v Harman (1982) 1 All ER 532) is of assistance in this regard.

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Orders of the Court

Following consideration of the bona fides of the requesting person, relevance, consent of the maker, conclusion of criminal proceedings and public interest concerns, it is proper to disclose the material without the necessity for a court order.

Where it is known that the maker of the statement will not consent to its disclosure, the court should normally be asked to determine whether the disclosure sought is necessary for the proper conduct of the proceedings in question, especially as the party against whom the disclosure is sought, namely the CPS, is not a party to those proceedings. Where there is a need for urgency, or where it is obvious that the court will order disclosure, the CPS may override the wishes of the maker of the statement.

Liaison with the police is important. While many police forces defer to the CPS on all questions of disclosure, some will insist on the production of a court order on public policy grounds before disclosing certain documents. It is important that the CPS and police are agreed on the course to be adopted in such situations. The individual circumstances of a case will determine whose view prevails.

Where the production of records of interview, tape summaries etc. are requested, the interviewee would probably refuse consent to any later disclosure. It is best to insist that a court order be sought.

In most cases the appropriate court order will be a subpoena duces tecum issued by the court in which the proceedings have commenced. For the production of documents at proceedings other than trials, an order equivalent to a subpoena duces tecum may be issued. In criminal cases at the Crown Court, the production of documents is enforced by a witness summons.

Once a witness summons or subpoena has been issued, it may be appropriate to provide a copy of the document to avoid the need to attend the hearing to produce it. In most instances such a course cannot be disapproved. But it is important to bear in mind that where the maker has a strong objection to disclosure, he or she may wish to make representations at the hearing or even apply to have the court order set aside. In such a case, disclosing a copy before the hearing itself should be resisted.

The presumption of innocence and the rights of the accused

Suspects who are prosecuted are entitled to have their guilt or innocence established with all the safeguards of a criminal trial, including the rules of evidence. Those who are not prosecuted, or who are acquitted, are entitled to the presumption of innocence. The presumption of innocence can only be undermined if the CPS or police were to release evidence enabling individuals to trawl through it to determine why the person was suspected in the first place. This is an important constitutional principle closely linked with the Service's independence of decision making.

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Applying the General Principles to types of Material Commonly Held by the CPS

Witness Statements

Most requests from third parties will be for the disclosure of statements. Subject to the principles set out above, these are disclosable. Be aware that the contents of a statement may be sensitive (for example, statements dealing with informants) and if so should not be disclosed. Depositions and transcripts of the evidence of witnesses can be handled in the same way as statements made to the police. Strictly speaking, depositions are the property of the court and it would be sensible to confirm with the Chief Clerk of the Crown Court or magistrates court has no objection to the disclosure.

Where a witness has made a statement relating to the business affairs of his or her employer, the consent of the employer should be sought as well as that of the actual maker of the statement (unless the employer is the defendant when such consent will be inappropriate). This is particularly important when the statement contains confidential information which is not normally in the public domain and which has been given to the police specifically for the purpose of a criminal investigation.

Statements Made by a Defendant

Records of taped interviews, contemporaneous written records of interview, summaries of taped interviews and statements under caution are in a different position from statements made by witnesses. It is inappropriate to seek consent for disclosure from the defendant or his legal representative. The police will usually insist on a court order being served on them before agreeing to the release, on the ground of public policy. In these circumstances the third party should be informed that a court order is required.

Exhibits

Consent to the disclosure of a statement normally implies consent to the disclosure of exhibits referred to in the statement. If information contained in the exhibit itself is sensitive, it may be necessary to obtain the specific consent of the witness to disclose the exhibit. Where records or summaries of taped interviews are available it will be unnecessary to disclose a copy of the tape itself. However, if disclosure of such a copy is sought it can be provided upon receipt of a court order.

Material Seized by the Police

Material seized by the police in connection with the investigation of crime (usually under the provisions of the Police and Criminal Evidence Act 1984) must not be disclosed to a third party unless the owner has consented to the disclosure or a subpoena has been served on the relevant police officer. This type of situation received close examination in (Marcel and Others v The Commissioner of Police for the Metropolis (1992) AER 72) Even where a subpoena has been served the police should not disclose seized documents in advance of the court attendance unless they:

  • have given the true owner notice of the service of the subpoena; and
  • have expressed a wish to produce the seized material in advance of the attendance at court; and
  • have given the true owner a reasonable opportunity to object.

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Communication Between CPS and Police Public Interest Immunity or Legal Professional Privilege

Generally Generally speaking, an MG3 and other communications between the CPS and Police should not be disclosed to the defence or a third party, either routinely or upon request. Such documents will be protected on public interest grounds, and public interest immunity should be claimed. A compelling factor in favour of non disclosure will be the importance of encouraging freedom of communication between police forces and the CPS without the fear that communications will at some later stage be subjected to inspection, analysis and detailed investigation.

This also applies to Police reports. Although these are documents generated by the police, the CPS may still have an interest in disclosure decisions.

For further guidance on public interest immunity, reference should be made to the Disclosure Manual within the legal guidance section.

Legal Professional Privilege (LPP) arises out of the confidential relationship that exists between a lawyer in private practice and a client. This relationship allows for the non-disclosure of information or documents that would reveal what has been said or written between a lawyer and his/her client. It can only arise in a "relevant legal context". The rationale which underlies the privilege was explained by Lord Taylor C.J. in R v Derby Magistrates' Court, Ex parte B [1996] 1 AC 487.

There is a good argument for saying that completed MG3s are covered by LPP and this, if it applies, is absolute. It does not involve the balancing exercise required when public interest immunity is being claimed.  The MG3 is in substance a request by the police for legal advice on whether there is sufficient evidence to charge a suspect.

A similar situation, which would be covered by LPP, would arise in the case of a private prosecutor. The fact that the police do not pay a retainer to the CPS in the same way that a private client would to his solicitor does not affect the nature of the advice that is sought or given.

Accordingly, prosecutors should not ordinarily disclose MG3s on LPP grounds unless there has been a court order requiring this.

Disclosure obligations or principles of information sharing can be met by providing extracts from police reports, MG3s or DCV letters rather than disclosing the entire MG3 document.

This course of action is the preferred approach when information about charging decisions is requested by third parties or defendants and/or their legal representatives.

Although LPP will normally apply, in any particular case it may be that there is something in the MG3 that is relevant, and which can and should be disclosed, for reasons unconnected with legal professional privilege.  For example, in a civil claim for malicious prosecution, it may be relevant to know what evidence the police sent to the CPS that resulted in the charge being brought.

Internal Correspondence and Counsel's Advice

Internal memoranda, conference notes, advice from Counsel and other internal documents may attract public interest immunity or legal professional privilege.

Antecedents and Previous Convictions

Requests for the disclosure of antecedents and previous convictions to third parties (as opposed to defendants and their legal advisers) should always be referred to the police. Information in the possession of the CPS should not be disclosed because it may be inaccurate or incomplete or subject to restrictions on disclosure contained in the Rehabilitation of Offenders Act 1974 or the Data Protection Act 1998.

Other Miscellaneous Documents

Because of the number and variety of documents handled by the CPS it is impossible to provide a comprehensive list. Requests for the disclosure of material not specifically covered in this section should be considered in the light of the general principles set out above.

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Special Considerations

Child Care Proceedings

Care proceedings are often started before criminal proceedings are complete because of the urgent need to protect the safety and welfare of the child. The Children Act 1989, which came into force on 14 October 1991, reinforced the principle that the welfare of the child is the paramount consideration. Delaying care proceedings is likely to prejudice a child's welfare.

The Family Proceedings Court (Children Act 1989) Rules 1991 provide tight timescales for dealing with care and emergency protection orders. Rule 17 places an obligation on a party to the proceedings to file and serve on other parties the statements and documents on which the party intends to rely.

The CPS is not a party to care proceedings, but requests will be made by local authorities for material which is relevant to the hearing. The CPS recognises that local authorities which institute care proceedings are under a statutory duty to investigate the child's background and provide the court with information that will help the court reach its decision. This duty extends to investigating all the circumstances relevant to the proceedings, and material in the possession of the CPS may be of considerable importance to the local authority which may not be able to proceed properly without it.

The CPS must give every assistance to local authorities. A major difficulty, however, is that where disclosure is made to a local authority, it is obliged to make onward disclosure to the other parties to the care proceedings. It is possible that other family members and actual or potential defendants in criminal proceedings will receive this information.

In view of the sensitivities involved in requests for disclosure in care proceedings, a lawyer of at least level E should be consulted. In each case an assessment must be made of how much information is required to meet the local authority's needs. The question of disclosure must always be considered in the light of the child's welfare. Even in cases where there is a perceived risk to the success of criminal proceedings it may be necessary in the interests of the child for disclosure to be made.

Requests for disclosure prior to CPS involvement with the case or where advice has been sought but no charges brought should be dealt with by the police. If advice from the CPS is sought, advice may be given on the lines set out below.

Because of the overriding interest in the welfare of the child it will not be possible to delay disclosure until the criminal proceedings are complete but in cases where there is a danger that disclosure will prejudice police inquiries it is important to hold a conference with the police and local authority to discuss what can safely be disclosed to serve the purposes of the local authority, without hindering the police investigation.

Wherever possible, attempts should still be made to obtain the consent of the maker of any statement to its disclosure in connection with the care proceedings. If consent is not forthcoming, disclosure should be made and the witness should be advised by the police of that fact and the reasons for it. (For the future it is to be hoped that police forces will consider dealing with the disclosure aspect of care proceedings when the statement is obtained so the need for obtaining consent later will be obviated).

If there is agreement between the police and CPS about what can be disclosed without prejudicing the criminal proceedings, there will be no need to insist upon an order of the court. In the absence of agreement, or in circumstances where the local authority requests material which the CPS considers should not be disclosed, the local authority must be informed that an order of the family proceedings court will be essential. Some documents such as police and other confidential reports may attract PII.

Under Section 41 of the Children Act 1989, the court must appoint a guardian ad litem unless satisfied that it is not necessary to do so to safeguard the child's interests. The guardian ad litem's role is to protect the welfare of the child independently of the interests of the child's parents or the local authority.

Guardians ad litem are under a duty to investigate all the circumstances relevant to the proceedings. Section 42 of the Children Act 1989 gives them the right to examine all local authority records about the child. But you will on occasion receive requests for material directly from guardians ad litem or their solicitors. In the past, to maintain clear disclosure channels, the CPS has disclosed material requested by guardians ad litem to the local authority instead, relying on the legal responsibility of the authority under Section 42. This has led to difficulties with some guardians, who have pointed to their independent role and the delay that this can cause. Given the small number of cases in which guardians will wish to obtain material over and above that asked for by the local authority, it seems sensible to take a pragmatic approach. If there is a likelihood of duplicate or multiple applications from different sources, disclosing to the local authority may still be the best option; but if not, it seems unnecessary to prevent direct disclosure. However, consistently with the principle of impartiality, you should give consideration to whether to notify the local authority.

Wardship Proceedings

The Practice Directions of 1.1.87 ((1988) 1 All ER 223) and 18.7.88 ((1988) 2 All ER 1015) set out the procedures to be followed to obtain leave for the police to interview a child who is a ward of court. See also (Re: R re G (minors) [1990] 2 All ER 633), (Re K and Ors (minors) [1988] 1 All ER 214) in relation to calling wards as witnesses.

No evidence or documents in the wardship proceedings or information about wardship proceedings should be disclosed in the criminal proceedings without the prior leave of the wardship court. For the principles to be applied in deciding what material concerning a ward of court should be disclosed to the police or another party see (Re H (a minor) [1985] 3 All ER), (Re S [1987] 3 All ER 1076) and (In re M (minors) [1990] 1 All ER 205).

Just as care must be taken by the police when obtaining statements in wardship cases, great care must also be exercised by the police when any question of onward disclosure of the material arises. The safest course may be to seek leave from the wardship court.

Civil Proceedings

The general principles relating to disclosure which are set out above are particularly relevant to civil proceedings. People who have made statements for the purposes of criminal proceedings must be given an opportunity to refuse consent for their statements to be disclosed in civil proceedings, and nothing should be disclosed which would prejudice the criminal proceedings.

Civil Proceedings concerning personal injury or death

By the Supreme Court Act 1981 a potential plaintiff in an action in respect of personal injuries or death (Section 33(2)) or an actual plaintiff in such a case (Section 34) may apply for the disclosure of any document "relevant to an issue arising or likely to arise out of the claim".

Requests for the supply of witness statements in criminal proceedings where Section 33 to 35 of the Supreme Court Act applies should be complied with applying the general principles in this section unless there is reason to believe that disclosure would be injurious to the public interest.

Interviews with CPS Staff

Requests are often received from parties to civil litigation (and private prosecutors) to interview CPS staff about aspects of the prosecution process. These should be referred to the Chief Crown Prosecutor or Deputy Chief Crown Prosecutor or the officer designated to deal with such requests.

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Road Traffic Collisions

Police/Prosecution Disclosure in Road Traffic Collisions (RTCs)

Guidance has been given to Chief Police Officers by the Home Office about how to deal with requests for information in road collisions or similar incidents. In addition, during the course of his judgment in Marcel & Others v the Commissioner of Police of the Metropolis (1991) 1 All ER 845, Dillon LJ specifically approved the current practice of the police in supplying information and witness statements to interested parties where there is a possibility of civil litigation after a road collision, in particular, the supply of names and addresses of parties involved in the collision whom an injured person could well otherwise have difficulty tracing. It is expected that the police will inform any witnesses that their statement may be used in any possible criminal or civil procedure.

National practice in how requests are directed to police and or CPS for disclosure of information to those involved in civil litigation has varied across the country. This has led to an inconsistency of approach and more importantly significant delays in civil litigators being able to access police documents.

The remedies that can be sought through civil litigation have profound importance to the wellbeing of victims and their families. It is therefore important that civil litigators are provided with the information that they require in order to allow them to assess the merits of the civil claim, issue court proceedings and seek interim payments of final damages, as soon as possible. The ability to obtain interim payments is important in:

  1. Providing early financial assistance where, for example, a collision has resulted in death or serious injury to the family breadwinner. The financial plight of families who are the victims of homicide, including the bereaved victims of road traffic collisions, has been something which the Victims Commissioner has taken an active interest in.
  2. Enabling injured people to pay for rehabilitation and or therapy in order to aid their recovery.

Balancing the rehabilitation needs and financial difficulties of a person injured in an RTC or, where there is a fatality, the needs of the deceased's dependants, whilst maintaining the viability and integrity of a potential criminal prosecution are not mutually exclusive. This guidance seeks to update and clarify the process of how the police and or CPS should treat disclosure of police material to those involved in civil claims arising out of RTCs.

RTCs where an Inquest/Criminal Prosecution is envisaged or pending

The police will deal with requests for disclosure of information by those conducting civil litigation. With the safeguards set out below, such requests for disclosure should generally be actioned as soon as possible. In cases that are contested the police will ensure that they have the agreement of the CPS to disclose any documents. The police will be responsible for forwarding the document to the civil litigator. If there is any dispute between the CPS and the police then the matter may be referred to more senior representatives in both organisations to resolve. The way forward should be agreed by an Inspector and a level D lawyer who are not linked to the case.

The information to be disclosed normally consists of the date and time of the collision; names and addresses of those involved; description and ownership of vehicles involved; the names of insurers in cases involving personal injury; copies of certain statements; name of defendant in any forthcoming criminal proceedings and the date and place of hearing. However each case is unique and will be considered on a case by case basis.

Both the police and the CPS may be requested to disclose further material to those conducting civil proceedings, which would include a level of information in excess of the limited information anticipated by police guidance. This may include the witness statements and the analytical report produced by the Collision Investigator in a collision case involving injury or death.

This guidance sets out how the disclosure of material on the police file should be made to the civil litigators.

In all cases, the Police Collision Report, the Forensic Collision Investigators Report together with accompanying photographs, plans, CCTV footage and note book entries of reporting officers should be disclosed upon request. These may be edited before disclosure if necessary.

In the majority of cases the police witness statements should also be disclosed providing permission has been given from the witness to disclose their statement. Bearing in mind the importance of the civil claim to the injured person and or dependants of the deceased, the police should encourage witnesses to assist in the civil claim where possible.

In rare cases it is accepted that disclosure of the police witness statements may prejudice the criminal prosecution. In those cases, the police and the CPS must consider whether the police statement(s) can be disclosed or whether conditions need to be attached to disclosure (such as the timing of such disclosure). Whilst doing so, the reviewing lawyer must give consideration as to how any such conditions may affect the prosecutions obligations in respect of " unused material". Regard should also be had to the fact that if the civil litigator breaches imposed conditions they may face disciplinary proceedings by their professional body.

If, after considering whether appropriate conditions can be attached to disclosure of police statements, the conclusion is that there is no workable solution and that significant risks would still remain, the police/CPS can refuse to disclose all or some of the police statements in the case. Again, it is repeated that this should only apply in rare circumstances.

Time frames
  1. Basic disclosure of information (i.e. the date and time of the collision; names and addresses of those involved; description and ownership of vehicles involved; the names of insurers in cases involving personal injury; copies of certain statements; name of defendant in any forthcoming criminal proceedings and the date and place of hearing) should be dealt with immediately and no later than 4 weeks after the accident incident.
  2. Requests for disclosure of other documents (i.e. the Police Collision Report, the Forensic Collision Investigators Report together with accompanying photographs, plans, CCTV footage and note book entries of reporting officers) should be dealt with within 4 months and no later than 6 months of the collision/incident.
  3. Requests for disclosure of police witness statements as noted in paragraph 2.6 above should be dealt with within 6 months and no later than 9 months of the collision/incident.
  4. If witness statements are held back due to substantial concern that disclosure may prejudice the criminal trial, those statements should be released to the civil litigator requesting disclosure within 4 weeks of the verdict being returned. Delays should not take place for sentencing. The outcome of any criminal proceedings should also be disclosed to interested parties immediately on request.

It is to be noted that criminal proceedings do not include those cases which are decided to be suitable for disposal by way of education under the provisions of the National Driver Offender Retraining Scheme (NDORS). It is only at the point when an NDORS course is not completed or is withdrawn that criminal proceedings may be pending. In those cases where an NDORS course has been completed, it is appropriate to advise that no criminal proceedings will take place, and make no reference to any diversion to an NDORS course. However, this does not preclude the police forwarding any relevant information to civil litigators as detailed above. The responsibility to consider disclosure is for the Police unless the matter becomes contested due to the lack of compliance.

RTCs where no prosecution is envisaged

If no prosecution is envisaged, or the RTC collision has been one for which the police have kept responsibility, the police should have regard to the comments made above and ensure that complete disclosure is made as quickly as possible so as to minimise financial hardship and health issues. The responsibility lies with the police to consider and disclose. However, the guidance above needs to be applied for consistency.

In particular, basic information should be disclosed immediately and no later than 4 weeks after the accident incident

The Police Collision Report, the Forensic Collision Investigators Report together with accompanying photographs, plans, CCTV footage and note book entries of reporting officers and police witness statements should be disclosed preferably within 4 months and no later than 6 months of the collision incident.

General Provisions

In all cases where disclosure is made (before or after the criminal prosecution), every effort should be made to ensure that the Police Collision Report, the Forensic Collision Investigators Report together with accompanying photographs, plans, CCTV footage and note book entries of reporting officers and or police witness's statements are disclosed together, not on a piecemeal basis.

The lead investigating officer should ensure that all documents are included in the disclosure process or, if documents are to be withheld that there are valid reasons for doing so e.g. witness statements as mentioned above.

Information should be supplied on request to persons bona fide engaged in or contemplating civil proceedings, or their solicitors, and also insurance companies, trade unions or friendly societies acting on behalf of a potential party to a civil claim.

Where there has been a loss of life or life changing injury there is an expectation that chief officers will grant an interview with reporting officers prior to the commencement/issue of civil proceedings (it should be noted that police evidence helps the civil litigators to assess the merits of a case)

Reports by medical practitioners should not be disclosed, but the name and address of a practitioner who has examined a party should be supplied.

Reports by vehicle examiners contain information of importance to civil proceedings and copies should normally be provided.

Copies of reports by forensic scientists should be supplied.

Private Prosecutions

Refer to Private Prosecutions, elsewhere in the Legal Guidance.

Discipline and Complaints

Confidentiality in the investigation of police complaints is safeguarded by Section 98 of the Police and Criminal Evidence Act 1984, Regulation 6 of the Police (Discipline) Regulations 1985 and section 4 of the Official Secrets Act 1989.

Applications are sometimes received from police officers investigating complaints requiring access to CPS files. The importance of the proper investigation of complaints against the police means that every possible assistance should be given to the investigating officer. Because of the provisions which preserve the confidentiality of information coming into the possession of investigating officers and the Police Complaints Authority, there is no need to seek the prior consent of witnesses or to require court orders before material is disclosed.

There may, however, be material on the file which should still be considered in case it needs to be withheld, such as internal memoranda and advice from Counsel. Requests from investigating officers for access to CPS files should be referred to the Chief Crown Prosecutor or a person nominated by him or her for that purpose, so that each request can receive prompt attention and advice.

Schemes Involving NOMS

Requests are sometimes received from the NOMs for disclosure of material in the possession of the CPS. Areas will no doubt have their own informal arrangements with the NOMs for the exchange of information which is essential for each Service to function properly e.g. the prosecution of breach proceedings.

Disclosure of information for the preparation of pre sentence reports, required by Section 3 of the Criminal Justice Act 1991, is dealt with under a Service Level Agreement.

Police reports to the CPS have an important part to play in Bail Information Schemes and also in Public Interest Case Assessment projects. Where such a report is disclosed to the NOMs it forms a useful starting point to enable the NOMs to conduct enquiries and gather information which may form the basis for a recommendation to the CPS as to whether it is necessary to oppose bail.

Disclosure to the NOMs for the purpose of bail schemes can be distinguished as the NOMs would not disclose the report to any third party (including defendants); and bail information is now an integral part of the prosecution process. Reports can therefore be disclosed on the strict and express understanding that they are kept absolutely confidential.

Investors Compensation Scheme

Investors Compensation Scheme Limited exists under the aegis of the Financial Services Authority (FSA) formerly the Securities and investment Board), which was created by the Financial Services Act 1986. Its principle task is to provide compensation to private investors who have lost money due to the fraud or failure of investment firms authorised under the 1986 Act. Such firms will either be directly or indirectly regulated by the FSA or will be a member of one of the self regulating organisations. For an investor to claim compensation, the firm concerned must have been declared to be in default for the purpose of the Financial Services (Compensation of Investors) Rules 1994.

The first task of Investors Compensation Scheme Limited is to identify and verify each claim and their professional accountants will check claims submitted by individual investors against the information which those investors have given the police in conjunction with other relevant information.

Requests may therefore be received by Areas seeking disclosure of relevant material before the criminal proceedings are complete. It may be claimed that as fraud trials take a considerable time to be heard and an investor may have lost all his or her life savings there is a need to act quickly.

Provided the makers consent to the release of their statements and there is no risk of prejudice to the trial, we consider that the request can be treated as an exception to the general principle of waiting until the criminal proceedings are complete. There will need to be discussion with the officer in the case and for ICS Limited to provide an undertaking to prevent further unauthorised disclosure.

It will not be possible, however, to disclose bank statements or other material which may have been seized by the police under the Police and Criminal Evidence Act 1984. Similarly there are considerations of public policy which militate against voluntary statements of defendants and records of interview being communicated to a third party before criminal proceedings are complete so they should not be disclosed.

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Criminal Injuries Compensation Authority

The new scheme administered by the Authority was set up under the Criminal Injuries Compensation Act 1995. The CICA replaced the Criminal Injuries Compensation Board, though the Board remains in being to finalise applications that commenced before the CICA scheme came into force. The purpose of the schemes is to pay compensation to persons who have sustained a criminal injury. In determining whether an award is payable, and the amount, it is open to the CICA and CICB to take into account - among other things - the conduct of the applicant before, during or after the event that gives rise to the claim, and to his or her character and way of life.

Like the Board, the CICA may request copy documents in cases involving violence. Requests are usually to be handled by the police, and procedures have been agreed by the Home Office and Chief Officers of Police. The agreement is designed to assist and expedite the determination of claims made by victims of crime, and in some instances it makes exceptions to the general principles of disclosure to third parties adopted by the CPS set out earlier in this section.

In cases tried at the Crown Court copy statements, depositions and exhibits can be provided after the trial, subject to the consent of the appropriate Courts Administrator. Transcripts of evidence produced for the purposes of appeals to the Court of Appeal should not be supplied without the consent of the Registrar.

Irrespective of the venue of trial, Chief Officers have agreed as a normal practice to supply a copy of any statement by the applicant, plus those of other witnesses in individual cases - especially where these my be helpful,for eg, it is not clearly established that the injuries can be attributed to a crime of violence. The consent of the witness will not generally be sought, although Chief Officers have made it clear that in exceptional cases they may decline to follow the general practice.

Statements taken during an investigation under section 85 or 86 of the Police and Criminal Evidence Act 1984 (complaints against police officers) will be supplied on a confidential basis. In the event of an oral hearing, these statements will not be placed before the Board without the consent of the Chief Officer, and through him or her, the maker of the statement (Home Office Circular No. 35 of 1986).

A police report will also be provided to the CICA on a strictly confidential basis, together with information about the incident and any criminal proceedings that resulted. The report will only be seen by the CICA staff. If the decision is not accepted and the case goes to a hearing, only the report is not disclosed to the applicant, his representative or to members of the tribunal, though the reporting officer may be asked to give oral evidence about the contents and any opinions contained in it.

Requests for disclosure of material to the CICA/B should be referred to the police. If any request is made to CPS because the police have exceptionally refused to provide material, then any disclosure should only be made in accordance with the general principles set out earlier in this section. On occasion you may be asked to offer an opinion why a defendant was acquitted. Clearly, you will only be able to do so where the court itself gave reasons, or the reason is obvious and can be substantiated for example, when a vital witness (such as the person claiming compensation) did not attend to give evidence. You are not being asked to speculate about the reasons.

Regulated Professions

Requests for information may be received from organisations such as the Law Society, the Bar Council, the General Medical Council, the Solicitors' Complaints Bureau or the Stock Exchange in connection with investigations or complaints against members of the professions.

These requests will usually relate to the disclosure of details of the case in which the member of the profession appeared as an advocate or a witness, and may possibly involve a request to interview, or to receive a written account of the hearing by, a member of the CPS staff who was present. Where interviews are concerned, (see Requests for Witness Statements from CPS staff, elsewhere in the Legal Guidance) there is no objection to a summary of the facts being provided, together with a copy of the charges or indictment. If a case summary of the facts has been prepared for the Judge, this may be provided once the case is concluded.

It must be made clear that disclosure is made only for the purposes of the investigation in question. Any material provided should not be disclosed further without prior permission of the CPS, in accordance with the general principle.

In the event of a member of a profession being convicted of a criminal offence, the profession may seek further information. These requests can be referred to the police, whose responsibility it is to receive and record the conviction.

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Bodies with Statutory Powers of Investigation

Organisations with statutory powers of investigation, such as the Civil Aviation Authority or Department of Transport Air Accidents Investigation Branch may approach the CPS for information. Such requests can be dealt with in accordance with the general principles of disclosure set out earlier in this section.

The only exception is with regard to the provision of police reports. Although such reports may attract PII, this does not necessarily require absolute secrecy. PII is a principle by which documents are protected from disclosure in legal proceedings, in the wider public interest. If a body such as the CAA is exercising its statutory powers of investigation, there is a strong public interest in the police and CPS assisting.

The preferred course is for the police to provide a separate report incorporating the substance of their original report to the CPS. In this way the general CPS policy of non disclosure of police reports to third parties is maintained. If such a course is not possible, the report may be disclosed provided the police have no objection, and provided the authority confirms that the disclosure is confidential and that the report will not be disclosed further.

Official Solicitor

The Official Solicitor to the Supreme Court has varied duties which include acting as guardian ad litem to persons under disability, and intervening in contempt proceedings and applications for bail where the person is unable to act on his own behalf.

Because of the Official Solicitor's varied responsibilities in different types of proceedings it is not possible to provide specific or comprehensive guidelines in relation to disclosure, but every assistance should be given by providing relevant material.

When the court refers a matter to the Official Solicitor it will normally do so in writing and the instructions may clarify what is required. Regard must be had to the general principles of the disclosure set out earlier, and to PII considerations.

Prison Medical Officers

Prison medical officers should be supplied with relevant witness statements on request and in cases of murder as a matter of course, so that psychiatric reports can be prepared for the benefit of the court.

Following conviction, requests are sometimes received from the Prison Service in connection with their Sex Offender Treatment programme. The requests are for statements of victims and police reports. [Whilst there is no objection to the release of statements provided there is no unauthorised disclosure further, there is no reason why the statements should not be obtained from the defendant's solicitors or the defendant himself. Police reports should not be provided.]

Requests from third parties for copies of medical reports compiled by the Prison Medical Service should be directed to the court. PII will not normally attach to these reports, but they are by their nature personal and confidential and are the property of the court, which will have requested them in most instances.

Parole Board

The Parole Board advises the Home Secretary in connection with the early release or recall of prisoners and new arrangements for release were introduced by the Criminal Justice Act 1991. In the discharge of its responsibilities the Home Office Parole Unit may seek information about the facts of the case from the CPS.

The Parole Unit will always in the first instance try to obtain information from the Probation Service or the police, but in cases of urgency an approach may be made to the CPS.

If the CPS can assist, there is no objection to a summary of the facts being provided together with a copy of the charges or indictment. If a case summary of facts was prepared for the trial Judge this may be disclosed. Police reports should not be provided.

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Forensic Science

Refer to Scientific Evidence, elsewhere in the Legal Guidance.

Data Protection Act 1998

Data are defined in section 1 of the Data Protection Act as, inter alia, "Information in a form in which it can be processed by equipment operating automatically in response to instructions given for that purpose" (section 1 (1) (a) DPA). Records of convictions are a common example.

CPS registrations under the Data Protection Act 1998 are under the control of the Data Protection Controller who is the Departmental Records Officer at Headquarters. Any requests for the disclosure of data held by the Service must therefore be directed to the Departmental Records Officer. It is in fact an offence under section 5(2)(d) of the Act to disclose personal data to a person not described in the register entry.

The Act provides a number of exemptions for the disclosure of personal data. If they apply, personal data may be disclosed even though the disclosures are not covered by the register entry. The exemptions are listed below:

  • disclosures to the data subject or with consent of the subject to someone acting on his behalf;
  • disclosures to employees or agents of the CPS (if these are made to enable them to perform their duties as employees or agents);
  • disclosures made for the prevention or detection of crime, the apprehension or prosecution of offenders or the assessment or collection of any tax or duty. This applies where the fact that it could not otherwise legally be made would be likely to prejudice one of those purposes. It does not oblige the CPS to make the disclosure;
  • disclosures made to safeguard national security;
  • disclosures made for legal purposes i.e. required by statute, rule of law or an order of the court; made for the purpose of obtaining legal advice; made for the purposes of, or in the course of, legal proceedings in which the person making the disclosure is a party or a witness;
  • emergency disclosures made if required urgently for preventing injury or other damage to anyone's health.

The exemptions are not relevant to the question of whether the data should be registered, and do not inhibit the court's powers to award compensation for damage suffered by an unauthorised disclosure even though it falls within the exemptions.

Requests may be made by solicitors acting for third parties for personal information stored on a police (or other) computer, which is in the possession of the CPS. These must be scrutinised to ensure that the request is relevant to proceedings or contemplated proceedings, but disclosure should not in any event be made without consulting the source of the data, whether the police or another body.

Researchers and Authors

Refer to Requests for Research Facilities, elsewhere in the Legal Guidance.

Media

Refer to Publicity and the Criminal Justice System, elsewhere in the Legal Guidance.

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Procedure

Procedures for Claiming PII in Civil Litigation

The information set out below does not summarise or replace that guidance. It merely gives some idea of the procedures involved in responding to subpoenas and discovery orders in civil proceedings.

Disclosure and the inspection of documents in civil proceedings is now governed by Rule 31 of the Civil Procedure Rules 1998 (the 'CPR', see pages 586 - 589, and 602 - 603 of The 'White Book'). These provisions have replaced the Rules of the Supreme Court on 'Discovery'. Disclosure occurs after the close of pleadings and is mutual between the parties to an action. The parties exchange lists of relevant documents in their possession or custody relating to any matter in question between them.

A party to civil litigation may seek disclosure of documents which the CPS has in its possession, albeit that the CPS is not a party to the proceedings. Where the CPS is not a party to the proceedings it may only learn about the application when we receive a witness summons, or even - which seems to occur in family proceedings - a court order, of which we have had no prior notice. These subpoenas and orders may be drafted in very wide terms ("the CPS file") and make no reference to the issues in the case to enable relevancy to be determined.

Under Rule 31.7, a court can only make an order for disclosure of documents in a third party's possession if: (a) the documents which are sought are likely to support the case of the applicant, or likely to adversely affect the case of one of the other parties to proceedings, and (b) such an order is necessary to dispose fairly of the claim or save costs. Rule 31.19.3 allows a court to order withholding disclosure of documents on the grounds of PII. PII is defined as the public interest being injured if a document is produced. A party claiming PII needs to apply to the court and demonstrate: (a) they have a right or duty to claim PII, and (b) the grounds on which that right/duty rests. The court, when deciding if PII attaches to the document, can order that the applicant produce the document for the court to inspect and invite any person, whether a party or not to the proceedings, to make representations.

If it is possible to deal with the witness summons/order by agreement without having recourse to a PII application or argument in court, it is best to try to do so.

Where a witness summons is issued, either for disclosure of documents or oral testimony, you will need to consider applying to set the witness summons aside in circumstances:

  • where it is too imprecise to identify the required material;
  • where it amounts to a fishing expedition; or
  • where the document or information sought is covered by ; and
  • where disclosure of the PII material is not considered necessary for disposing fairly of the matter.

Typically, a witness summons will have a return date (known as a Khanna hearing, see below) for the production of the documents in question see (Khanna v Lovell White Durrant (a firm) [1994] 4 All ER 267) and also Rule 2.62(7) of the Family Proceedings Rules 1991 (production appointments). A production order should not be obtained ex parte unless the applicant has legitimate cause for anxiety that giving notice will lead the documents to be destroyed or concealed, but the CPS does receive such orders.

Rule 34.3 (4) allows a court to set aside or vary a witness summons. There is no further guidance as to the approach the courts should take, so pre-CPR rules and cases still have force. If the solicitors who have obtained the witness summons/production order are not able or willing to provide further and better particulars to satisfy you about relevancy and the need for disclosure, you can give notice of your intention to use the return date for the purpose of arguing the matter before the court. If there is no return date, then the procedure for applying to set aside/vary a witness summons is contained in Rule 34.3.5 (see page 648, The 'White Book'). Appeals against orders can be made according to the rules that apply in the particular proceedings.

At court the first step will be to decide if a claim is made out. If there is any doubt, the court may inspect the material. But before it can do so, the onus is on the party seeking disclosure to satisfy the court that the material may assist his case or damage that of his opponent. An order will only be granted if it will give substantial assistance to the court in determining the facts on which the decision in the case will depend. Although in the past the court would only have inspected documents when it had definite grounds for expecting to find material of real importance to the parties seeking disclosure, it is preferable not to take the point and to provide the court with the material for inspection.

It is for the party seeking disclosure to establish clearly that the scales fall decisively in favour of disclosure in the balancing exercise. If the applicant succeeds, the court will order full or partial disclosure. If applicant fails, even material which is clearly necessary for disposing fairly of the cause or matter will be withheld.

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