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Exhibits

Principle

An exhibit is a document or other thing shown to a witness and referred to by the witness in evidence. At common law it is within the power of, and is the duty of, constables to retain for use in court things which may be evidence of crime, and which have come into possession of constables without wrong on their part (R v Lushington ex p Otto [1984] 1 QB 420).

Under the Code of Practice issued under part 2 of the Criminal Procedure and Investigations Act 1996, any police officer investigating alleged crimes has a duty to record and retain material which may be relevant to the investigation.

As a general rule, the courts entrust the prosecution with the exhibits pending trial and after committal. The prosecution duty is: 

  • to take all proper care to preserve the exhibits safe from loss or damage; 
  • to co-operate with the defence in order to allow them reasonable access to the exhibits for the purpose of inspection and examination; 
  • to produce the exhibits at trial (R v Stipendiary Magistrate at Lambeth and another, ex p McComb [1983] 1 All ER 321).

The term "prosecution" generally means the Crown Prosecution Service and the police.

The police will retain all original exhibits unless it is absolutely essential for the Crown Prosecution Service to accept them.

See also Sending Indictable Cases to the Crown Court and Committal Proceedings, elsewhere in this guidance. 

Guidance

General Guidance: Prior to Production in Court

Sections 21 and 22 Police and Criminal Evidence Act 1984 (PACE) deal with police powers to retain exhibits and provide copies and photographs to the defence (Archbold 15-114/118). Note the restrictions on retention of exhibits where a photograph or copy would be sufficient (section 22(4) PACE).

Secondary evidence in the form of photographs of exhibits can be admissible in evidence. If it becomes necessary to dispose of exhibits, e.g. because they are deteriorating, it is wise to give notice to the defence of the intention to photograph and destroy the exhibit (R v Uxbridge Justices ex p Sofaer and Another 85 Cr. App. R 367).

General Guidance: After Production In Court

Once an exhibit is produced in court, or treated as being produced in accordance with section 5B(5) Magistrates Courts Act 1980 (Archbold 10-16), the court has a responsibility to preserve or retain it. Normally the court entrusts the exhibits to the prosecution, usually the police.

The court can impose restrictions on the prosecution. Where it imposes no restrictions, it is for the prosecution to deal with the exhibits in whatever way appears best for the purposes of justice. If the prosecution has doubts as to how to deal with an exhibit it may, but is not obliged to, apply to the court for directions (R v Stipendiary Magistrates at Lambeth and Another, ex p McComb 1983) All ER 321).

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Copying Documentary Exhibits - General

Where documentary exhibits form part of the prosecution case, you should serve copies on the defence before the trial or as part of the committal papers. In cases sent to the Crown Court under section 51 of the Crime and Disorder Act 1998 copies of the exhibits should be included in the papers served in support of the case.

Where the documents are of such poor quality that adequate photocopies cannot be made you should contact the defence and invite them to inspect the originals.

You must supply copies of documentary exhibits that form part of the prosecution case, even where there is an extremely large quantity of papers. However, you should try to keep the volume of papers to a realistic minimum in order to present the case as clearly as possible. Documents you decide not to use may well be unused material. See to Disclosure of Unused Material, elsewhere in this guidance. 

Different considerations may apply in relation to computer evidence. 

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Defence Requests To Inspect Exhibits

If the defence request facilities to inspect exhibits their request should normally be granted unless you have grounds for suspecting some improper motive.

If the exhibits are held by the police you should ask the defence to make arrangements with the police direct. You should tell the police to expect an approach.

If the exhibits are retained at a forensic science laboratory you should write to the defence asking them to contact the laboratory direct. You should write the laboratory also. You should ask the defence to produce your letter to the laboratory to gain access to the exhibits.

Where the exhibits are retained by someone else (e.g. the owner of stolen goods) arrangements for defence access must be made in writing. You should contact the owner, via the police, and then write to the owner, confirming that the defence should be allowed access on production of a letter. You should write to the defence, granting them access, on production of the letter. You should give details of a CPS contact point so that the owner can make contact to confirm that the defence letter is genuine.

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Defence Request to take Possession of Exhibits Magistrates Courts

Where the defence asks to be allowed to take exhibits away for examination, you should question whether it is really necessary for the defence to physically take the items away. Could their examination be done at the place where the exhibits are currently held?

Where it is essential for the defence to take the items away, you should not authorise release of the relevant items until the defence sign a written undertaking (drafted by the prosecution) not to part with possession of the exhibits except to a named expert and to return them on or before a specified date in exactly the same condition that they are currently in.

If tests on the exhibits would necessarily involve causing damage to the items you should find out from the defence what will be involved. You may need to seek an amended undertaking; to cause no more damage than necessary to perform the tests. Be as specific as possible. You may be able to obtain advice from your local forensic science laboratory. Unless the expected damage is very slight, you will need to obtain the consent of the owner.

Defence Request to take Possession of Exhibits - Crown Court

In Crown Court cases you should ask the court to consider the defence request to take exhibits away. You should invite the court to impose conditions similar to those mentioned above in magistrate's court cases.

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Blood-Stained Exhibits - Health Risks

Medical advice suggests that there are health risks attached to handling exhibits which are blood-stained or otherwise contaminated with body fluids. Such exhibits should be left in the original polythene bags in which they are sealed. If it is absolutely essential to handle the exhibit, clear polythene disposable gloves should be used.

Firearms Exhibits

CPS staff should not handle firearms (real or imitation), or ammunition. This must be left to the police both inside and outside court. Under no circumstances should firearms or ammunition be stored in CPS offices.

Weapons Exhibits

Again, handling these exhibits should be left to the police.

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Drugs Exhibits

The storage and transmission of drugs is a matter for the police. Under no circumstances should drugs be stored in CPS offices.

Counterfeit Notes - Cancelled or Endorsed "Counterfeit"

The police are required to cancel counterfeit notes coming into their possession unless this has already been done, e.g. by the Bank where the counterfeit was detected. This is done by writing or stamping the word "counterfeit" along its length (not diagonally) on both the front and back.

There is a risk that cancelled notes will not be allowed to be shown to the jury. The defence could object that the printing of a word such as "counterfeit" across the note is highly prejudical on the basis that: 

  • a jury could unconsciously give it undue weight without proper regard to the oral evidence, or to the proper observations of a note with their own eyes had it not been so marked; 
  • even where the defence admit the notes are counterfeit, the jury might be prejudiced when considering the question of knowledge.

If the defence object to the printing of the word "counterfeit" across the note, it can be explained that: 

  • counterfeit notes are continually improving in quality; 
  • modern techniques mean that it is possible for high quality facsimiles to be produced for minimum effort or expense; 
  • the risk of such notes passing undetected is greater; 
  • there is a greater risk that such notes could find their way back into circulation. This has happened!

The Bank of England accept the evidential risk but believe it is worth taking the risk to ensure counterfeit notes do not get back into circulation. With the greater sophistication in the production of counterfeit notes, it is becoming more likely that reliance will have to be placed upon the oral testimony of experts.

If a case is lost because the notes have been marked, Strategy and Policy Directorate should be informed in order that the Bank and the relevant Government department may be advised and the procedure reviewed.

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Preservation of the Original Condition of the Notes

For the purposes of section 28 Forgery and Counterfeiting Act 1981 (Archold 25-244) it is essential, if counterfeit notes are used in proceedings, that evidence is provided of the condition of the notes at the time of passing or seizure.

Except to the extent that they are marked "counterfeit", counterfeit notes should not be marked or defaced in any way which might change the appearance of the note from the form in which it was passed or tendered.

The advice that counterfeit notes should not be marked applies particularly where consideration is given to the use of fingerprint tests which may leave a permanent stain e.g. ninhydrin or physical developer.

If a test for fingerprints is thought to be necessary, the police will have to submit the notes for tests through the national central office at New Scotland Yard, indicating which notes they have it in mind to examine for fingerprints.

Where there are a number of notes from an offence or series of offences which are identical in appearance and it is essential that all are examined for fingerprints, one will be retained in its original condition and a statement made by the Bank's expert that all the notes, which were examined for fingerprints, were of the same appearance as the one retained in its original condition.

Where there are bundles of notes and the top and bottom notes of each bundle only are to be examined for fingerprints, as being the only ones likely to have been handled by the offender(s), the complete bundle(s) will be submitted to the Bank's expert for the provision of evidence of original identity before the fingerprint examination is carried out.

Where there is only one note from an offence, or where there are a number of notes and it is essential that all be examined for fingerprints, the police should also submit for each such note an actual sized true colour photograph of both sides of the note. To give the best possible indication of original appearance each note should be photographed beside a colour control patch, which may be required to be produced in court as an exhibit in its own right, to indicate the quality of reproduction in photographs.

For more information see Forgery and Counterfeiting, elsewhere in this guidance. 

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Obscene Publications

It may be necessary for exhibits in obscene publication cases to be received in CPS offices. These exhibits should: 

  • be secured in locked cabinets;
  • be viewed only by those who need to do so; 
  • be transmitted, eg between CPS offices, by the police; 
  • never be sent through the post since this would constitute an offence under section 85 Postal Service Act 2000

See Obscene Publications, elsewhere in this Guidance.

Where the exhibits relate to pornographic images downloaded or sent over the internet, these will not be supplied. See Indecent Photographs of Children, elsewhere in the Guidance.

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Photograph Exhibits

There is an agreement between CPS and the Association of Chief Police Officers that: 

  • the police will supply The CPS with 3 free sets of photographs; 
  • if The CPS require further sets of photographs these must be paid for by The CPS.

The caseworker should therefore ensure that the file does contain the minimum 3 free sets.

Because of the high cost of additional sets of photographs provided by the police, the CPS will make its own additional copies of photographs. There is an agreement , which has been approved by the senior judiciary, that the CPS will use colour photocopied photographs in court in place of additional sets of photographs provided: 

  • one set of original photograph prints will always be available in court, in the form of an exhibit, for use by the trial judge or to settle disagreements that may arise on copy clarity; 
  • where a particular detail on a photographic exhibit is essential to a case The CPS will provide originals (not photocopies) for the trial.

It follows that it will only be in exceptional cases, that more than the 3 free sets will be ordered from the police.

Photocopies of photographs should be of professional quality, i.e. they should be: 

  • an accurate representation of the original photograph; 
  • presented in a numbered, indexed album; 
  • secured back and front with A4 pale blue card covers with the front in house-style.

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Video Tapes

For information on handling video tapes as exhibits see Video Recorded Evidence, elsewhere in this guidance.

Audio Tapes

For information on handling audio tapes as exhibits see Tape Recorded Interviews, elsewhere in this guidance. 

Procedure

Number of Copies of Photographs

Crown Prosecutors must determine which of the photographs supplied by the police are of practical evidential value. Unnecessary photographs should be removed from the albums supplied by the police if the prosecution do not intend to rely on them as part of the prosecution case. The Crown Prosecutor must make a record on the file of the editing of photographs. Photographs which are not used as part of the prosecution case may form part of the unused material which will be served on the defence (see Disclosure of Unused Material, elsewhere in this Guidance). 

The caseworker responsible for the preparation of a case will decide how many additional photocopies of photographs are required. Where a guilty plea is anticipated, additional photocopies should only be prepared in exceptional circumstances. The reason for requesting additional photocopies must be recorded on the file by the Crown Prosecutor.

In summary cases the 3 free copies of albums of photographs from the police are usually sufficient for our purposes (defence, court and CPS). In multi-defendant cases it may be necessary to prepare photocopies of photographs.

In committal proceedings in a single defendant case 2 photocopied albums of photographs should be made, in addition to the 3 original photograph albums, for service on the defence: 

  • one photocopied album will be for the defence solicitor; 
  • one photocopied album will be for the defendant; 
  • one original photograph album should be attached to the bundle for service on the court; 
  • one original album will go to CPS counsel; one original album will be retained on the file, ultimately for use by witnesses in court.

A similar approach should be adopted in cases sent for trial under section 51 of the Crime and Disorder Act 1998.

Where a set of photographs have been sent to the defence solicitor as part of the advance information package, there is no need to serve a set at committal provided that the album of photographs is identical. The defence should be informed that we deem the photographs to have been served for committal purposes and this must be endorsed on the file.

In a multi-defendant case there will be one extra photocopied album of photographs for each additional defendant and one extra photocopied album of photographs for each additional defence solicitor.

In the Crown Court, when a case is listed for plea and/or pre-trial review, the advocate appearing for the prosecution should, when considering pre-trial directions, be asked to confirm the content of the album of photographs.

Only when a clear indication has been received that a trial will proceed, e.g. after pre-trial review, should a further 7 photocopies of the album of photographs be made; 6 for the jury and the 7th copy for CPS use in court. In some areas it has been possible to agree a lesser number of copies for the jury, e.g. because of the arrangement for jury seating.

Where photographs are referred to in statements that are to be served by way of notice of additional evidence photocopied albums will need to be prepared for service on the defence as in committal proceedings. Original albums will be sent to the court and prosecuting counsel with a notice of additional evidence. This must be endorsed on the file.

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Ordering Additional Photographs From The Police

In exceptional cases, sets of photographs in excess of the 3 free sets may be required. The Crown Prosecutor will endorse the file with the number of sets of photographs required and reasons for requiring photographs as opposed to photocopies of photographs.

Unless the police are willing to supply extra sets of photographs free of charge, the Area making the request will be liable for the additional costs incurred. As the need for photographs, as opposed to photocopies, is likely to arise very infrequently, Areas will need to negotiate payment on a case by case basis.

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Useful information

R v Lushington ex p Otto [1984] 1QB 420

R v Stipendiary Magistrate at Lambeth and Anr ex p McComb [1983] 1 All ER 321

Sending Indictable Cases to the Crown Court and Committal Proceedings

R v Uxbridge Justices ex p Sofaer and Another 85 CR App R 367

Disclosure of Unused Material

Forgery and Counterfeiting, elsewhere in this Guidance

Obscene Publications (Section 12), elsewhere in this Guidance

Guidance on Indecent Photographs of Children

Video Recorded Evidence, elsewhere in this Guidance

Tape Recorded Interviews, elsewhere in this Guidance

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