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CPS Public Consultations

We want to hear your views about our prosecution policy and so we conduct consultations to help inform our policy making.

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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 the Legal 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 the Legal 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 the Legal 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 the Legal Guidance.

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

Video recorded evidence is admissible in evidence in the same way as photographic or audio taped evidence is admissible.

Where the video evidence is obtained by the police and produced to the CPS, it is and it remains the responsibility of the police to ensure that the video evidence has been viewed and that any sensitive or personal information in relation to any person shown therein is edited. Personal or sensitive information includes, but is not limited to names, addresses, dates of birth and any other material that may identify any person shown therein, such as (in the case of CCTV) vehicle registration details of third part vehicles where that information is not relevant to the investigation. The police should take steps to pixilate or otherwise disguise and obscure those details prior to providing discs to the CPS. Where more than one copy of a disc is provided, each copy needs to be checked and edited prior to providing each disc to the CPS.

If the video is destroyed, the court may consider that the loss of the recording requires that the criminal proceedings should be stayed as an abuse of process, but only where the loss is such that it means that the accused will not be able to have a fair trial - see Abuse of Process.

Video recorded evidence may be used in a number of different ways:

  • As the evidence in chief of a young witness, see Children as Victims and Witnesses
  • As direct evidence of the events which are captured on the video recording either to set the scene of an incident in general terms or to show what was done by a particular offender.
  • As a means of putting a context to the evidence of witnesses in the same way as a plan or photographs of the scene would be used. In this case the video recorded evidence is likely to have been taken after the incident that is the subject of the case.
  • To assist with identification of an offender.

In terms of proving the authenticity of the video recording, the Prosecution must be able to show that the video film produced in evidence is the original video recording or an authentic copy of the original and show that it has not been tampered with. In order to do so statements must be available which produce the video evidence as an exhibit and which cover its continuity and security, unless it is agreed by the Defence that this is not an issue. If the Police retain the original video film then a statement from the person who took the film (together with continuity statements) will be sufficient to produce the video recorded evidence as an exhibit. In respect of evidence obtained from automatic video recording systems e.g. shop security video systems a statement should be obtained from the person responsible for operating the video equipment. The statement should include a description of the system used and explain how it works. If the original film is not available or is not in a playable format then the prosecution must establish that the copy produced is an authentic copy of the original recording and if the original is not available that the police do not have possession of it.

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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 the Legal 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.

Bulk destruction and representative forensic drug testing

Investigations carried out by Law Enforcement Agencies, such as NCA, HMRC and the police may result in the seizure of bulk goods, for example drugs.  The storage of the seized goods over lengthy periods of time is expensive and may lead to security and Health and Safety related concerns.

When reviewing a case involving the seizure of bulk goods, prosecutors should apply the bulk destruction policy and, where appropriate, the representative forensic testing policy (see below).

Prosecutors must ensure that potential exhibits in a trial are not destroyed if doing so will prejudice the proceedings or any subsequent appeal.

Early engagement between the prosecution and the defence is an important element of the bulk destruction policy, as is the need for a clear audit trail. Prosecutors should ensure that decisions about bulk destruction and agreements with the defence are recorded in writing, for example the defence recording their agreement on the PTPH form. If the issue cannot be resolved between the parties, it would be appropriate to seek a direction from the judge, at the PTPH or PCMH, as to the timescale in which the defence must inform the prosecution of their consent to the proposed destruction / the reasons for their refusal to consent.

Bulk destruction policy

It is not possible to define bulk for the purpose of this policy.  Prosecutors should consider the issue of bulk on an individual case basis, and in liaison with the NCA / HMRC / police colleagues.

Bulk goods (for example, drugs, excise goods, alcohol etc) and associated packaging can be destroyed post charge.  Prosecutors should make a decision as to the destruction of bulk goods following agreement from the defence or upon receipt of the defence statement.

The prosecutor must be satisfied that the case officer has:

  • Provided evidence, by way of witness statement, as to the quantity and nature of the bulk goods;
  • Provided photographs of the bulk goods and / or a video of the bulk goods in situ;
  • Confirmed that there are no issues as to continuity;
  • Confirmed that the decision about the selection of a representative sample has been recorded in a policy book / day book;
  • Provided an assurance that a representative sample has been retained by the case officer; and
  • Confirmed that the bulk goods will not be destroyed until they receive written consent from the prosecutor.

It is important that the defence are notified, at the earliest opportunity, of the prosecution's intention to destroy the goods.  The prosecutor should either (a) write to the defence; or (b) raise the issue at the PTPH / PCMH so that the issue can be made the subject of directions:

  • notifying them of the prosecutions intention to destroy the goods;
  • giving them 7 days to provide any written reasons to object; and
  • making it clear that in the event no response is received, the prosecution will move to destruction of the bulk goods.

Prosecutors should be alert to the possibility of the defendant changing his / her defence team after the prosecution has sent the letter about intention to destroy the goods.  In such circumstances, the defendant may claim that the earlier defence team has not acted appropriately with regard to the letter.  The claim may weaken the prosecution case, so prosecutors must be prepared to overcome this argument.  A full and clear audit of decisions and correspondence will be essential in order to rebut any potential challenges.

Representative Forensic Drugs Testing

In cases involving the seizure of bulk drugs, it is not necessary for the entire consignment to be the subject of full forensic analysis.  Instead, a representative sample of each type or package or concealment will be subject to forensic analysis, in line with the streamlined forensic approach.  It is appropriate for the representative sample to be 10% of each type or package or concealment.

The defence may raise the issue of representative forensic drugs testing in interview or at PTPH / PCMH or in the Defence statement.  Prosecutors should consider the issue recognising the competing interests set out in this policy.

The defence must be informed of what has been tested.  Prosecutors should be alert to challenges about the nature and quality of the representative sample.

Where a defendant is unrepresented, it would not be appropriate to apply the bulk destruction policy and representative forensic drugs testing policy.

Seizure of stolen vehicles that have had their identity altered

Police investigations may involve the seizure of stolen vehicles that have had their identity altered, a process known as 'ringing'.

The storage of seized stolen vehicles over lengthy periods of time is expensive and delays the restoration of the property to its lawful owner.

Seized stolen vehicles can be restored to their lawful owners post charge. Having consulted with the officer in the case as to whether it is appropriate, Prosecutors should make a decision as to the restoration of such vehicles as early as is possible in the proceedings.

Potential exhibits in a trial must not be restored (or destroyed) if doing so will prejudice the proceedings or any subsequent appeal.

Policy about seized stolen vehicles with altered identity

The police may seize a vehicle under section 19 Police and Criminal Evidence Act 1984 (PACE), and retain it as evidence under section 22 PACE until the conclusion of criminal proceedings. The retention of the vehicle allows the defence an opportunity to challenge the evidence of the police vehicle examiner in relation to the identification of the vehicle.

Prosecutors should raise the issue of restoration of the vehicle to its lawful owner during early engagement with the defence and at the first hearing in the magistrates' court.

All decisions about seized stolen vehicles with altered identity and agreements with the defence must be recorded in writing, for example by the defence recording their agreement to restoration on the PTPH form or in correspondence. If the issue cannot be resolved between the parties, it would be appropriate to seek a direction from the judge, at the PTPH, as to the timescale in which the defence must inform the prosecution of their consent to the restoration of the vehicle / the reasons for their refusal to consent.

Where there are admissions in interview about the theft of the vehicle and the altering of its identity and the evidential package includes photographs of the Vehicle Identification Number (VIN) and markers to which the VQ13 relates, the prosecutor should liaise with the defence as to the position in respect of restitution of the vehicle. The prosecutor should write to the defence indicating that they have 14 days to object and making clear that if they do not respond the vehicle will be restored to its lawful owner without further reference to them.

(The VQ13 is the main file record of the vehicle and is relied on to evidence the VIN or engine number of the vehicle where this forms the means by which the vehicle has been identified).

Where there are no such admissions, the prosecutor must be satisfied, prior to agreeing to restore, that:

  • The evidential package for each vehicle examination consists of the following (minimum requirements):
    • Identification MG11 from vehicle examiner (sample attached);
    • Copies of digital images documenting the examination process, (ideally the entire examination process will be video recorded also);
    • DVLA Form VQ13; and
    • Copies of exhibits from the vehicle, for example false VIN plates that have been removed from the vehicle.
  • The vehicle examiner's evidence addresses the removal of false identifying marks from the vehicle;
  • The officer in the case has confirmed that there are no issues as to continuity;
  • The officer in the case has confirmed that the seized vehicles will not be restored to the lawful owners until the officer has received written consent from the prosecutor.

It is important that the defence are notified, at the earliest opportunity, of the intention to restore the seized vehicles to the lawful owners. The prosecutor should:

  1. write to the defence:
    • Notifying them of the prosecution's intention to restore the seized vehicle to the lawful owner;
    • Giving them 28 days to provide any written reasons to object; and
    • Making it clear that in the event of no response is received, the prosecution will move to restoration of the seized vehicles.

Template letter to the defence:

'We are writing to notify you of our intention to restore [vehicle and registration number], seized on [insert date], to its lawful owner. If you consider that there is good reason for the police to retain the seized vehicle until the conclusion of criminal proceedings, please let me know in writing within 28 days of this letter, indicating your reasons. In the event that we do not hear from you, the restoration of the vehicle to its lawful owner will proceed without further notification.'

And (if the issue is not resolved in correspondence)

  1. raise the issue at the PTPH so that the issue can be made the subject of directions.

Prosecutors should be alert to the possibility of the defendant changing his / her defence team after we have sent the letter about the intention to restore the seized vehicle to its lawful owner. In such circumstances, the defendant may claim that the earlier defence team has not acted appropriately with regard to the letter. The claim may weaken the prosecution case, so prosecutors must be prepared to overcome this argument. A full and clear audit of decisions and correspondence will be essential in order to rebut any potential challenges.

Exception

Motorcycles: Stolen motorcycles with altered identities are generally completely rebuilt. The method is to obtain a legitimate bike frame (from salvage or similar), then take all of the component parts from a stolen bike and rebuild them around the legitimate frame. The method of identification of the individual components means that the evidence is more susceptible to challenge and, therefore, motorcycles will be retained unless the vehicle has been identified by retrieving an original frame number or engine number.

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Representative forensic testing of nitrous oxide canisters

In cases involving the seizure of large numbers of nitrous oxide canisters, it is not necessary for every canister to be the subject of full forensic analysis. Instead, a representative number of canisters will be subject to forensic analysis, in line with the streamlined forensic approach.

In determining the number of canisters to be analysed, it is necessary to find out how many batches there are in a case.

Where batches of nitrous oxide are located in different locations, they must be exhibited separately and a minimum of 1 item per exhibit forensically tested. This approach is the same as that applied to seizures of tablets / pharmaceuticals, as set out in the United Nation Office on Drugs and Crime (UNODC) Guidelines on Representative Drug Sampling.

If, for any reason, canisters in the same batch are of a different appearance or differently labelled, then a representative sample of each should be analysed.

The defence must be informed of what has been tested. The statement from the forensic service provider should set out the proportion of the sample of canisters examined.

The defence may take issue with the number of canisters forensically tested. Where issue is taken, the defence should explain why they are not satisfied with the representative forensic testing. If it is not possible for the prosecution and defence to agree the representative forensic testing of the canisters, a direction should be sought from the judge.

Prosecutors should alert the HQ Policy Helpdesk to any difficulties which arise as a result of the application of this policy.

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