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Rape and Sexual Offences:
Chapter 15: Disclosure and Third Party Material

Contents:

See Legal Guidance on Disclosure and Child Abuse Third Party Material

General

  • The current law in relation to disclosure is set out in the Criminal Procedure and Investigations Act 1996, (CPIA) as amended by the Criminal Justice Act 2003.
  • Prosecutors must apply the disclosure test contained in the Act by disclosing to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, save to the extent that the court, on application by the prosecutor, orders it is not in the public interest to disclose it.
  • The duties imposed on the police and CPS under the Act are not simply about compiling schedules of unused material as part of preparation for court, and then applying the disclosure test. CPIA and Code of Practice CPIA, impose an obligation to pursue all reasonable lines of enquiry whether these point towards or away from the suspect. Reasonable lines of enquiry may include enquiries as to the existence of material in the hands of a third party.
  • Where unused material substantially undermines the prosecution case, assists the defence or raises a fundamental question about the prosecution, prosecutors should reassess the case in accordance with the Code for Crown Prosecutors and decide after consulting with the police whether the case should continue.
  • Prosecutors should record on the disclosure record sheet (DRS) and on the Prosecution Strategy Document (PSD) all reasons for their decisions about disclosure of medical records and/or counselling notes.

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Applying the disclosure test

The following are examples of unused material generated during the course of a rape or serious sexual offence investigation that may potentially satisfy the disclosure test and will need to be carefully considered by the prosecutor:

  • Medical records and psychiatric records, that might go to the credibility of the account of a complainant or other prosecution witness.
  • Local Authority material, for example Social Services or educational records, that might go to the credibility of the complainant or other prosecution witness.
  • Material relating to past or current Family Court proceedings.
  • Information that the complainant is pursuing a civil claim for compensation, and documentation relating to such a claim. Similarly, documentation relating to applications for compensation made to the Criminal Injuries Compensation Authority. (However the mere fact of such a claim should not be regarded as automatically undermining to the prosecution or assisting the defence.)
  • Information relating to previous complaints made by the complainant.
  • Scientific and scenes of crime findings which do not advance the prosecution case. In particular, scientific findings which indicate that the complainant has consumed alcohol or taken drugs prior to the alleged offence. (Note, however, that high consumption of alcohol/drugs might indicate that the complainant was lacking the capacity to consent in accordance with section 74 Sexual Offences Act 2003. It might therefore be evidence that the prosecutor will wish to adduce as part of the Crown's case).
  • Telephone evidence; and in particular, the content of text messages passing between the complainant and the suspect/defendant at the relevant time.
  • Previous convictions/cautions relating to the complainant or other prosecution witnesses.

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Reassessing the Prosecution

Where unused material substantially undermines the prosecution case, assists the defence or raises fundamental questions about the prosecution, prosecutors need to reassess the case in accordance with the Code for Crown Prosecutors and decide, after consulting the police, whether the prosecution should continue

Third Party Material

A third party has no obligation under CPIA to reveal material to the police or to the prosecutor. Furthermore, for example in the case of social services records, there may be a duty to claim public interest immunity (PII)

Nor is there any duty on the third party to retain material which may be relevant to the investigation and, in some circumstances, the third party may not be aware of the investigation or prosecution.

In the context of a rape/SSO investigation, third parties commonly encountered will include the following:

  • Social services departments
  • Forensic Physicians
  • Counsellors/therapists
  • Schools
  • Medical Practitioners
  • Hospitals
  • Owners of CCTV

Reasonable lines of enquiry may include enquiries as to the existence of relevant material in the possession of a third party. It is not necessary to make speculative enquiries, but frequently the existence of the material will be known or can be deduced from the circumstances. For example, where a child witness is in the care of the local authority, the social services may have relevant material e.g. material going to the credibility of the witness or records of interviews with the witness that are likely to have touched on the subject matter of the investigation.

In R v Alibhai, [2004] EWCA Crim 681, the Court of Appeal held that before taking steps to obtain third party material, it must be shown that there was not only a suspicion that the third party had relevant material but also a suspicion that the material held by the third party was likely to satisfy the disclosure test.

Furthermore, R v Alibhai states that even if there is the necessary suspicion, the prosecutor has a "margin of consideration" as to what steps to take in any particular case and was not thus under an absolute obligation to obtain material that was suspected to satisfy the disclosure test.

  • If the police believe that a third party holds material that may be relevant to the investigation, that person or body should be told of the investigation. They should be alerted to the need to preserve relevant material.
  • If material relevant to the investigation comes to the knowledge of the investigator and is then obtained from a third party, it will become unused material within the terms of CPIA. This applies particularly to relevant information conveyed verbally by the third party. Any such material should be recorded in a durable or retrievable form (for example potentially relevant information revealed in discussions at a child protection conference attended by police officers). It will have to be recorded on the appropriate disclosure schedule and revealed to the prosecutor in the usual way.
  • Where having received a request from the investigator or prosecutor the third party refuses to co-operate, the matter should not be left. If criminal proceedings have commenced, the prosecutor should consider whether to make an application for a witness summons, under section 97 of the Magistrates' Courts Act 1980 or section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965
  • Part 28 Criminal Procedure Rules 2010 sets out the procedure to be adopted in applying for a witness summons. The rules require the court to consider the rights of those to whom confidential information or documents relate before a witness can be required to give evidence about them. Rule 28.5 covers applications for witness summonses requiring the proposed witness to produce in evidence a document or thing or to give evidence about information apparently held in confidence that relates to another person. (e.g. application for summons for Local Authority to produce medical records relating to the complainant)
  • This is designed to overcome the difficulties outlined in R v Stafford Crown Court [2006] EWHC 1645. In that case the Divisional Court held that the medical records of a complainant (prosecution witness in a sexual case) were confidential between medical practitioners and patients. A patient had a right of privacy under article 8 of the ECHR. It was not sufficient for the court to delegate her representations to the person in possession of the documents, i.e. the NHS trust alone. Procedural fairness required that the complainant should have been given notice of the application and the opportunity to make representations, orally if she wished, before the witness summons order was made
  • The application for a witness summons must, where the Court directs, be served on the person to whom the confidential document relates (i.e. the patient in the case of medical records) Rule 28.5(3)(b). The Court must not issue a summons unless it is satisfied that it has been able to take adequate account of the duties and rights, including rights of confidentiality, of the proposed witness or the person to whom the documents relate (Rule 28.5(4))
  • Rule 28 has equal application in respect of applications by the defence to access such third party material by way of witness summons.
  • Alternatively, where access to the material is declined or refused by the third party before a suspect is charged and the police believe the material is likely to be relevant evidence and of substantial value, the investigator may consider making an application under Schedule 1 of the Police and Criminal Evidence Act (PACE) 1984, (Special Procedure Material).

If the prosecutor is of the view that unused material obtained from a third party falls for disclosure to the defence (because it might reasonably be considered capable of undermining the prosecution case or assisting the case for the accused), consultation with the third party should take place before disclosure is made. In determining whether to disclose the material to the defence, the prosecutor should take account of the article 8 ECHR rights of the person to whom confidential material relates. See R v Stafford Crown Court [2006] EWHC 1645. This will usually mean that the prosecutor must be satisfied that the person to whom the material relates consents to such disclosure.

There may be public interest reasons which justify withholding disclosure, in which case the prosecutor will seek PII ruling from the Court. Only material satisfying the disclosure test should be brought before the court for the purposes of seeking PII (R v H and C [2004]2 AC 134).

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Family Proceedings Material

Material held by a third party (typically in this context a Local Authority) may relate to civil proceedings in the Family Court. Rule 11 of the Family Proceedings Rules 1991, amended by the Family Proceedings (Amendment) (No. 2) Rules 2009 prevents the communication (without the consent of the Family Court) of information and documents relating to family proceedings held in private and concerning children.

Prosecutors must ensure that Rule 11 is not infringed. The sanction is contempt. Where it appears that relevant material (which should be obtained in pursuit of reasonable enquiries) relates to Family Proceedings, the prosecutor must consider making application to the Family Court to access such material and to use it in the course of the criminal proceedings.

Rule 11 is subject to exceptions:

  • The text or summary of a judgement in Family Proceedings may be disclosed by a party (typically a Local Authority) to CPS. The prosecutor can then use it to discharge his functions under any enactment. This will include disclosure to the defence, where appropriate, under CPIA
  • The Rule permits the communication of information relating to the proceedings ( whether or not contained in a document filed with the court ), not only where the court gives permission, but also where the communication is to (inter alia) 'a professional acting in furtherance of the protection of children', which is defined as including a police officer who is exercising powers under section 46 of the Children Act ( police protection ) or is serving in a child protection unit or a paedophile unit of a police force
  • The investigation and prosecution of offences against a child will be part of the protection of children; and it is permissible to disclose documents relating to proceedings in addition to information contained therein (Borough Council v A and others (Chief Constable intervening)[2007] 1 All ER 293 However, the officer receiving the communication is not permitted to make use of the document (as opposed to the information contained therein) without the permission of the Family Court (Borough Council v A and others (Chief Constable intervening), above.
  • It follows that the police may have accessed information relating to Family Proceedings under the above exception contained in Rule 11. Whilst the police are permitted to discuss such information with the prosecutor, the use of any documents containing the information is prohibited without the consent of the Family Court.

Consent to disclosure of medical records and counselling notes

Because disclosure of records will engage the Article 8 right to privacy of the victim/witness it is crucial that the police obtain appropriate consent to:

  • gain access to the records; and
  • enable disclosure, where appropriate, to take place.

Furthermore prosecutors must satisfy themselves that consent to disclosure of the medical records/counselling notes has been obtained by the police from the person to whom the notes refer.

If police enquires indicate that there may be material in the records which falls within the CPIA disclosure test, the prosecutor should request the police to secure access to such records having first obtained the witness's informed consent. Such material as falls within the test should then be disclosed to the defence with the witness's informed consent.

When obtaining consent, the victim or witness should be informed why the request is being made and what might happen to the record. The victim or witness has the right to decline consent if he or she so wishes but must also be told about the possible consequences for the case outcome.

There are three potential scenarios relating to the medical records of the victim or witness:

First scenario

The victim or witness gives informed consent allowing the police access to the medical records and service of the records as additional evidence or unused material, as appropriate. See Appendix B, table 1 for an illustration of the process.

Second scenario

The victim or witness gives qualified consent, allowing their medical/counselling history to be disclosed to the police and prosecutor but not to the defence. The prosecutor needs to carry out the usual test of relevance, deciding whether the records should form part of the prosecution case or whether they should be treated as unused material. If the record supports the prosecution case, the prosecutor should inform the victim or witness of his decision and seek consent to use the record as part of the evidence.

Where the prosecutor considers that some or all of the records meet the disclosure test and should be disclosed as unused material, the consent of the witness should once again be sought. If consent is refused the prosecutor should decide between making an application for non-disclosure on the grounds of Public Interst Immunity (PII) or not proceeding with a prosecution. In the event that a PII application is made, the witness to whom the notes refer will be entitled to have her/his views put before the court. This may be done by the prosecutor on the witness's behalf or by the witness in person or in writing, or by someone acting on her/his behalf. The court, having seen the material and heard the representations, will make a decision about the public interest. See Appendix B, table 2.

Third scenario

The victim or witness does not consent to the release of their medical records. In circumstances where there are reasonable grounds to believe that disclosable material is contained within the medical records, prosecutors will need to consider whether it is appropriate to use the witness summons procedure to gain access to these records. The victim or witness has a right to make representations to the court as to why the records should not be disclosed. In these circumstances, the prosecutor would not usually be able to represent the interests of the victim or witness at the hearing being unaware of the content of the records, and their relevance (or otherwise) to the proceedings. See Appendix B, table 3.

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Protocols for Disclosure

Some Crown Court centres have developed local protocols setting out a framework for dealing with third party material. In October 2003 a model protocol on the exchange of information in the investigation and prosecution of child abuse cases, approved by ACPO, the CPS , the Local Government Association and others, was published. In 2010 the Stern Review recommended that all local authorities adopt the protocol.

Disclosure- Miscellaneous

The disclosure regime set out in CPIA must be scrupulously followed. This means that only material satisfying the disclosure test (capable of undermining the prosecution case or assisting the case for the accused) should be disclosed to the defence. Under no circumstances should there be blanket disclosure. The disclosure of material that does not satisfy the disclosure testis a breach of the CPIA.

Where medical evidence does not appear to support the prosecution case because injuries that would be expected (from the complainant's account of the incident) are not present, prosecutors should consider obtaining further medical opinion, assessing the significance of the findings. Otherwise decisions made by lawyers and jurors may be based on incorrect assumptions. For example, in the case of child sexual abuse, it may be appropriate to ask an expert "would the hymen necessarily have been ruptured" or "would the anal injuries have in fact had ample time to heal"?

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