Memorandum of Understanding between The Crown Prosecution Service, Immigration Enforcement and National Policing on Immigration Crime

• Introduction
• Interpretation
• The Code for Crown Prosecutors
• The Director’s Guidance on Charging
• Compliance with The Code and the Director’s Guidance on Charging
• Appeal and escalation process
• Escalations by CPS or IE / Police
• Responsibilities
• Enforcement policies and CPS guidance
• Quality assurance and supervision / Casework Management
• Early advice
• Assistance with the investigation: international enquiries
• Intelligence material
• Disclosure
• Disclosure Management Document
• Material required for a charging decision and prosecution
• CPS charging decision / Referral Criteria
• Resources
• Training
• Exchange of Information
• Digital Working
• Archiving and file retention and retrieval
• Ministerial and Parliamentary correspondence
• Parliamentary Questions
• Media handling
• Complaints from third parties
• Requests for information from the public
• Monitoring and Review
• Miscellaneous
• Annex A

Introduction

1.    This Memorandum of Understanding (MoU) has been agreed between the Crown Prosecution Service (CPS) and Immigration Enforcement (IE), and where relevant National Policing. It will take effect on 28 June 2022. The MoU reflects the Home Office policy on investigating immigration crime within the remit of Immigration Enforcement, with support from national policing, and CPS policy in respect of the prosecution of offences and recovery of assets. It describes the co-operation arrangements between the Parties in respect of the investigation, the institution and prosecution of offences and the recovery of assets in respect of Immigration Enforcement Casework in England and Wales.

2.    The objectives of this MoU are to:

• Provide best practice guidance and set out the respective roles and responsibilities of the CPS and IE. Where relevant the roles of National Policing in relation to investigations and prosecutions of immigration crime are reflected. 
• To ensure that Government and departmental objectives are met with regard to effective law enforcement in relation to immigration offences. This includes pursuing criminal investigation and prosecution, where appropriate, of those who are alleged to have committed immigration crime.
• To set out an agreed appeals and escalation process.
• To reflect the CPS and Home Office policy and guidance.
• To achieve a fair, consistent, and expeditious approach to the investigation and prosecution of offences subject to this MoU, ensuring the best use of public funds, whilst always acting in a manner to achieve the overriding objective that criminal cases be dealt with justly.
• To ensure that criminals do not benefit from the proceeds of immigration crime by ensuring the appropriate use of restraint and confiscation proceedings.
• To ensure effective decision-making processes, operating in accordance with the relevant legislation, and case law, Codes of Practice, Attorney General Guidelines, Criminal Procedure Rules, judicial protocols and departmental policies and procedure. This includes any jointly agreed statement of principles as to the approach to be taken to the investigation and prosecution of immigration cases.
• To ensure fair application of our international treaty obligations, namely Article 31 of the 1951 UN Convention Relating to the Status of Refugees (the Refugee Convention), and the principles of the European Convention on Human Rights, in accordance with the Human Rights Act 1998.

3.    This MoU is a guide to the agreed co-operation between the Parties. It also sets out the shared aims of the Parties in respect of the handling of Immigration Casework, namely:

• A clear understanding of the Parties’ respective roles, responsibilities and procedures;
• A framework for formal liaison and co-operation at all levels;
• A commitment to working collaboratively to investigate and prosecute immigration cases effectively and to a high standard, always operating in accordance with the relevant legislation as well as applicable case law;  
• Clear and effective communication, including full and timely exchange of information; and 
• Supporting each other to improve experience and knowledge. 

Interpretation

4.    For the purposes of this MoU, the following words and terms have the meaning given:

• Early advice means advice that is given prior to a request for a charging decision.
• Immigration Casework means cases referred to the CPS by IE (or where relevant policing) for advice on investigation, for a charging decision and for the conduct of any proceedings.

The Code for Crown Prosecutors

5.    When making decisions about whether to charge a person with a criminal offence, or whether to authorise alternative disposals, all Parties subject to this MoU must apply the principles set out in The Code for Crown Prosecutors (‘The Code’) and any relevant legal guidance or policy. 

The Director’s Guidance on Charging

6.    All investigators and prosecutors subject to this MoU must comply with the Director’s Guidance on Charging: 6th Edition (DG6) when handling individual cases, save where this MoU sets out different arrangements and whilst recognising the restrictions on immigration officers instituting criminal proceedings themselves, as referred to below.

7.    The CPS will make independent charging decisions in accordance with the Directors Guidance on Charging and the Code for Crown Prosecutors. Prosecutors will be proactive in identifying and, where possible, rectifying evidential deficiencies and in bringing to an early conclusion those cases that cannot be strengthened by further investigation or where the public interest clearly does not require a prosecution.

8.    Section 3(2)(aa) of the Prosecution of Offences Act 1985 imposes a duty on the Director of Public Prosecutions to take over the conduct of any criminal proceedings instituted by an immigration officer (as created by the Immigration Act 1971) acting in his capacity as such an officer. Immigration officers do not have powers to charge detained persons. IE relies on the police for those functions. The provisions of section 37, 37A and 37B Police and Criminal Evidence Act 1984 apply.¹ Immigration officers also do not have the power to authorise charge in any case. Therefore, all charging decisions following IE criminal investigations are made by the CPS.

9.    A charging decision includes any decision on whether to institute or terminate criminal proceedings and any decision on whether to accept guilty pleas to a lesser offence.

Compliance with The Code and the Director’s Guidance on Charging

10.    All Parties to the MoU agree that they should comply with The Code and the Charging Arrangements / DG6, as set out in this MoU. The Code, the DG6 and the charging arrangements for IE (or where relevant policing) contain guidance to ensure that:

• Investigators receive early advice to assist them in investigations within a reasonable period of time and to build the most effective prosecution case; and
• Prosecutors have all necessary material to make charging decisions expeditiously. 

11.    All Parties acknowledge that failure to comply with the provisions of either The Code or the charging guidance is likely to result in any of the following:

• An investigation being delayed or incomplete.
• A weaker prosecution case. 
• A charging decision being delayed or deferred. 
• The prosecutor being unable to make a charging decision, resulting in no further action on the case.
• A case being discontinued. 
• The prosecution being in breach of a court direction, which may imperil the progress, or the outcome, of the case.

To avoid these outcomes, the CPS agrees that it should:

• Provide timely advice to investigators, when requested. 
• Provide charging decisions within agreed timescales.
• Discharge their statutory disclosure obligations. 

IE and policing agree that they should:

• Comply with the advice of the prosecutor.
• Provide all of the material required for a charging decision as set out in this MoU. 
• Discharge their statutory disclosure obligations.
• Execute pre and post-charge action plans by the agreed date. 
• Follow advised reasonable lines of inquiry.
• Comply with requests for information. 

Appeal and escalation process

12.    Any dispute arising out of this MoU, of the failure of any Party to the agreement to adhere to the MoU which cannot be resolved locally, shall be escalated in accordance with the process described below.  

Investigator appeals against prosecution decisions

13.    Investigator of rank of Chief Immigration Officer or above may appeal against any decision made by a prosecutor, including the charges authorised, a decision to take no further action (NFA) or to discontinue proceedings, or in respect of an action plan, pre or post charge. For policing, local escalation procedures should be used. 

14.    The appeal should be made to a District Crown Prosecutor / Casework Division Unit Head. The grounds for the appeal must be recorded and explain why the decision is wrong, by reference to the specific facts of the case and, where applicable, the sufficiency of evidence under the Full Code Test or Threshold Test. 

15.    The CPS will respond expeditiously to all appeals within the agreed timescales below by conducting an independent review of the evidence and other material in accordance with The Code and recording and sharing the decision with the Chief Immigration Officer / Chief Inspector / local policing process.

16.    If the initial appeal does not resolve the issues the appeal can be escalated by an officer of rank of Superintendent / HMI to a Deputy Chief Crown Prosecutor / Deputy Head of Division. Notice of the appeal should be given to the Operations Director / Regional Director / Assistant Chief Constable with responsibility for Criminal Justice and to the Chief Crown Prosecutor for advisory purposes. 

17.    Where it is decided to abandon an appeal before it has been considered that decision will be recorded and communicated to the CPS as soon as possible.

Timescales

18.    Charges authorised / NFA:

• If the suspect is in immigration detention or custody and the intention is to detain the suspect after charge, the appeal and the CPS response must be made before the expiry of immigration detention / the PACE clock (custody time limit). 
• If the appeal is against some, but not all of the charges authorised, consideration should be given to charging the offences which are not being appealed, to stop the PACE clock. The appeal itself does not stop the PACE clock. If one or more offences are charged, the CPS should respond to the appeal regarding the other offences within agreed timescales. 

19.    Discontinuance:

• If there is time for the prosecutor to consult the police / investigator before the decision is made and for any appeal to be considered, the appeal and CPS response must be made within agreed timescales.  

20.    Action plans:

• Where the suspect is to be or has been charged, the appeal and the CPS response must be made within agreed timescales. 
• Where no decision has yet been made on charge, the appeal and CPS response must be made within agreed timescales. 

Escalations by CPS or IE / Police 

21.    Efficient case building and charging arrangements are only possible if the terms of this MOU are adhered to. 

22.    Failure by the investigator to supply the correct material and information for a charging decision, or to pursue an advised reasonable line of inquiry, within the agreed timescales, may result in the prosecutor being unable to apply The Code, leading to cases not being charged (paragraph 3.3 of The Code), or where charges have been authorised applying the threshold test in custody cases, leading to difficulties in complying with court directions and/or placing the continuation of the case in jeopardy. 

23.    Equally, failure by the prosecutor to respond in a timely manner to a request for advice or a charging decision may frustrate or undermine an investigation or prosecution.

24.    Any dispute arising out of this MOU, of the failure of any Party to the agreement to adhere to the MOU which cannot be resolved locally, shall be escalated. 

25.    First escalation: Where the Officer in the case of an investigation is concerned with either the advice received or with the management of the prosecution, or where the prosecutor has concerns about the investigation, the concerns should be escalated to the Senior Investigating Officer (SIO) or local force escalation process / Chief Immigration Officer or the prosecutor’s manager as appropriate, who should contact each other to resolve the issue. 

26.    Second escalation: If further escalation is required, the matter may be referred to the HMI / Superintendent / or the appropriate Deputy Head of Division or Deputy Chief Crown Prosecutor for resolution at that level. 

27.    Third escalation: If the matter remains unresolved, it may be referred to an Assistant Director / Chief Superintendent or above or to the appropriate Head of Division or Chief Crown Prosecutor, for resolution at that level. 

28.    Any escalations shall be dealt with expeditiously.

Responsibilities

29.    For the purposes of this MoU, the general responsibilities of each Party are outlined below. Further specific roles and responsibilities are set out in Annex A.

IE and, where relevant, the police are responsible for:

• The enforcement policy in respect of breaches of immigration controls including the disruption of organised immigration crime groups.
• The adoption of cases for criminal investigation.
• The collection of admissible evidence and the recording, retention and revelation to the prosecutor of relevant unused material including the continuing duty to review the material throughout the life of a case and to report changes to the CPS.
• Where material is held by another agency, taking the lead in liaising with that agency, in order to identify, secure and reveal to the prosecutor relevant material.
• The timely submission of the (digital) case file to the CPS.
• The quality of immigration investigations.
• Ensuring file quality submitted in accordance with the National File Standard.
• Identifying cases where administrative removal would be more appropriate than prosecution.
• Ensuring the CPS is kept updated and informed about the outcome of any application for asylum or the status of a victim of trafficking.

The CPS is responsible for:

• The provision of appropriate advice in relation to immigration criminal investigations and any proceedings instituted in respect of such investigations, but the CPS has no powers of investigation and no power to direct investigations.
• Making independent charging decisions in accordance with the Code for Crown Prosecutors and in a timely fashion in respect of all cases referred to the CPS.
• Fairly and robustly conducting prosecutions and linked proceedings in accordance with the Code for Crown Prosecutors and the DPP’s Statement of Ethical Principles for the Public Prosecutor.
• The completion, in appropriate cases, of a Prosecution Strategy Document and the quality of CPS casework.

Enforcement policies and CPS guidance

30.    IE / police will inform the CPS of any enforcement policy, or changes to that policy, relevant to the investigation or prosecution of offences subject to this MoU. 

31.    The CPS will issue guidance on the approach to the prosecution of offences subject to this MoU.

32.    The CPS guidance will have regard to any relevant enforcement policy of IE / police, particularly in relation to the public interest in instituting criminal proceedings. 

Quality assurance and supervision / Casework Management 

33.    Immigration casework will be handled by prosecutors based in CPS Areas, Complex Casework Units (CCUs) and the CPS Serious Economic, Organised Crime and International Directorate (SEOCID) in accordance with CPS case referral criteria.

34.    IE / police will notify the CPS of all major investigations, which are in its view likely to require early advice. 

35.    IE / police will inform the CPS of any intended operational activity that may result in the arrest of a number of suspects potentially requiring the consideration of an immediate charging decision.

36.    Investigators will put in place a robust quality assurance and supervision process to ensure that all case papers, unused material, and other relevant information are properly quality assured before submission to the CPS. This will include the request for early advice, the request for a charging decision and the submission of disclosure schedules and material.

Early advice 

37.    Early advice from the prosecutor to the investigator is a fundamental part of the investigation process in many cases. The aim of early advice is to assist the investigation within a reasonable period of time and to build an effective but proportionate prosecution case. Early advice may also identify weak cases that require no further action. 

38.    It is therefore expected that in all cases advice and action plans will be complied with promptly by the investigator. 

39.    Early advice is strongly recommended by the DG6 in respect of the following case types, which are subject to this MoU: 

• Where the case is serious, sensitive, or complex.
• Where the case involves another death or risk of death to a passenger. 
• Where there are multiple suspects involved in the facilitation or arrangement of illegal entry.
• Where the case involves Modern Slavery and Human Trafficking, including cases involving exploitation where charges under the Modern Slavery Act 2015 are under consideration.
• Large scale human facilitation / trafficking bearing the hallmarks of organised crime, including the employment of illegal workers.
• Where an International Letter of Request is required, or where a Joint Investigation Team is being considered.
• Where the suspect(s) is a minor.
• Extensive volumes of digital data, multi-media evidence, or third-party material.
• Where the suspect(s) is wanted by Europol or Interpol.
• Organised manufacture or sale of forged or stolen documents for use in immigration crime.
• Serious and complex money laundering offences, with complex restraint and confiscation issues.
• Cases requiring multiple foreign enquiries and overseas liaison.
• Extensive or complex and sensitive disclosure issues.

40.    If early advice is provided by the CPS, this advice will be considered in deciding how to proceed. However, the decision will ultimately rest with IE / the police.

41.    If required, a consultation or meeting may be held between the CPS and the investigator to discuss specific evidential or disclosure issues. The consultation may be in writing, by telephone, digitally, or face to face.

42.    Prosecutors will record and share their advice with the SIO supported, where appropriate, by a shared action plan. 

43.    Where, following early advice and further investigation, it is determined that there is no realistic prospect of conviction on evidential grounds, the CPS should be notified of this decision. The responsibility for the decision to take no further action on evidential grounds will lie with the investigator. 

44.    In complex cases where early advice is required, consideration should be given to whether a Joint Investigative and/or Disclosure Strategy would be helpful.

Assistance with the investigation: international enquiries 

45.    In respect of all cases with any international element contact should be made with the CPS Liaison Prosecutor for the jurisdiction in question, CPS International and/or Eurojust. 

46.    Where cases have an international element and requires police or judicial co-operation from overseas, consideration should be given to whether assistance should be obtained from the International Crime Coordination Centre (ICCC).

47.    Where appropriate, further assistance may include the following:

• Non-urgent letters of request to be drafted, approved and sent directly to the relevant judicial authority in the receiving State or to the Home Office. 
• Non-urgent requests for section 62 Serious Organised Crime and Police Act 2005 (SOCPA) disclosure notices should be processed and returned to the CPS within the agreed timescales following receipt of all required material being provided to the prosecutor. 
• In complex cases where early advice is required, consideration should be given to whether a Joint Investigative and/or Disclosure Strategy would be helpful.
• Consideration should also be given to whether any foreign witnesses will be required to give evidence on behalf of the prosecution and whether a request will need to be made to the Home Office to obtain permission for a foreign witness to enter or remain in the UK to give evidence in court.&²
• Consideration needs to be given to the status of any foreign material.

Intelligence material

48.    If there is intelligence material relevant to the investigation, it is important that the prosecutor is aware of the existence and nature of the material before making a charging decision, and that any charging decision accurately reflects the intelligence case. The relevant intelligence agency must therefore provide an operational briefing to the prosecutor and provide access to relevant underlying intelligence material for review before any charging decision. The briefing must include any material that may point away from a suspect’s involvement in an offence. This includes references to suspects operating as a CHIS. Any briefing must be attended by a senior lawyer or designated specialist prosecutor.

49.    The prosecutor should identify and enter potential risks around the intelligence material onto the Highly Sensitive Disclosure Record Sheet. Where appropriate, a meeting should be held with the investigator and any intelligence agency to discuss the nature of those risks and any available mitigation.

50.    In all cases where the Secretary of State for the Home Department (SSHD) may be asked to issue a Public Interest Immunity (PII) certificate, these must be notified to the reviewing lawyer at the earliest opportunity. The matter will be dealt with in accordance with Home Office and CPS policy, by a lawyer sufficiently vetted to deal with a case of this type.

Disclosure

51.    A trained Disclosure Officer (DO) should be appointed from the outset of an investigation and, in accordance with the Code of Practice to the Criminal Procedure and Investigations Act 1996 (CPIA), they must have sufficient skills and authority, commensurate with the complexity of the investigation, to discharge their functions effectively. In more complex cases, a DO must be appointed who is separate from the SIO / Chief Immigration Officer in charge of the investigation. 

52.    The DO and the prosecutor will discharge their obligations under the CPIA, the CPIA Code of Practice, the Common Law, and the Attorney General’s Guidelines on Disclosure; and will comply with the CPS Disclosure Manual. 

53.    The DO will provide the CPS with non-sensitive and sensitive schedules of unused material and a DO Certificate, drawing the attention of the prosecutor to any material that it is considered may satisfy the test for prosecution disclosure in the Act, explaining the reasons for coming to that view. 

54.    The DO will also comply with the continuing duty to review such material throughout the life of a case, including after a defence statement has been given, or details of the issues in dispute have been clarified by the defence. The DO will report any changes to the schedules to the prosecutor and indicate whether any further material falls to be disclosed.

55.    The schedules of non-sensitive and sensitive unused material and the DO Report will be submitted at the same time as the full file submission for a charging decision. 

56.    Where access is sought to digital material containing communications evidence, investigators should have regard to the CPS guidance Disclosure – A guide to ‘reasonable lines of inquiry’ and communications evidence. Where appropriate, the prosecutor should be asked for early advice on reasonable lines of inquiry. 

57.    The prosecutor will serve on the defence an endorsed schedule of unused material and any material that meets the test for disclosure. 

58.    With regard to any unused material generated as a result of international enquiries, the DO and the prosecutor will proceed in accordance with the CPS Disclosure Manual, in particular with reference to Chapter 35. The prosecutor will liaise as appropriate with CPS International Division. 

Disclosure Management Document

59.    A Disclosure Management Document (DMD) must be completed by the prosecutor and should be served by the prosecutor on the defence and the court prior to the Pre-Trial Preparation Hearing (PTPH).  

60.    In order for the DMD to be prepared, the request for the charging decision in any case where a not guilty plea is anticipated or it is likely to be heard in the Crown Court, must set out the reasonable lines of inquiry already conducted, including those that may assist the defence or undermine the prosecution, and the results of those inquiries.

61.    The DMD should also include:

• The lines of inquiry which will not be pursued and the rationale for that decision.³
• Any reasonable lines of inquiry which remain outstanding, together with timescales for completion of those inquiries and an objective assessment of the likely impact of those inquiries on the decision to charge, taking into account the facts of the case, the available material and information and the known issues; the current status of the PACE clock and its impact on the investigation.⁴

62.    The DMD should:

• Set out the position that the prosecution takes in dealing with unused material.
• Identify what has been considered to be a reasonable line of inquiry in the case and why.
• Explain the prosecutor’s understanding of the defence case, including interview.
• Summarise the prosecution’s approach to particular aspects of disclosure, including digital material, video footage, linked investigations, third-party and foreign material. 

63.    The defence should be invited to identify any additional lines of inquiry that they consider to be reasonable, and which have not yet been undertaken. 

Material required for a charging decision and prosecution

64.    The request for a charging decision must comply with the Director’s Guidance on Charging (DG6) and:

• Be made digitally, supported by the material and information listed in the DG6, and in any form indicated in the National File Standard (NFS). Witness statements should be ordered to reflect the chronological narrative to the commission of the offence, which best “tells the story”. Exhibits should be provided in the same order as the statements to which they are linked. 
• Set out the rationale for the assessment that the Full Code Test or Threshold Test is met. 
• Provide assurance that there has been consideration of the impact of potentially disclosable material on the decision to charge, including any unexamined material, or material that could be obtained through further reasonable lines of inquiry.
• Provide information on the state of the investigation, including:
  • The reasonable lines of inquiry that have already been conducted and the results of those inquiries.
  • Any reasonable lines of inquiry which remain outstanding, together with an objective assessment of the likely impact of those inquiries on the decision to charge, taking into account the available evidence and a timescale for the completion of each inquiry; the availability, nature, scale, and potential impact of any material not yet made available to the prosecutor.

CPS charging decision / Referral Criteria

65.    The CPS will make independent charging decisions in accordance with DG6, the Code for Crown Prosecutors and supported by CPS legal policy guidance. In appropriate cases, alternative case disposal, including administrative removal may mean that a prosecution would not be in the public interest. 

66.    Consideration should also be given to the following applicable defences:

• Whether the immigration offence was committed as a necessary part of an asylum seeker’s journey to the UK and the statutory defence set out in s.31 of the Immigration and Asylum Act 1999 applies. 
• Whether any other statutory defence is available to the offence charged, which has not been met on the facts of the case (including under s.2 Asylum and Immigration (Treatment of Claimants’) Act 2004) but the wider aims of the defence apply. 
• Whether the statutory defences under s.25BA and s.25BB Immigration Act 1971 (as amended by the Nationality and Borders Act 2022) apply, to facilitation offences where there is rescue at sea or where individuals may be stowaways. 
• Whether an offender may have been forced, coerced or deceived into committing an offence who might be a victim of modern slavery and a defence under s.45 of the Modern Slavery Act 2015 might apply and where a referral to the National Referral Mechanism (NRM) might be likely, particularly in the case of a child victim.

67.    The following public interest factors would be considered relevant when making the decision to prosecute:

• A likely sentence of less than 12 months' imprisonment.
• Where no aggravating factors in favour of prosecution would apply.
• Whether, in the absence of other aggravating factors, the offender (or overstayer) might be dealt with more judiciously by removal.
• Whether the suspect may be willing to assist in the investigation or prosecution of others (in accordance with the Serious Organised Crime & Police Act 2005), and who would need to remain in the UK for this purpose.
• Any other issue arising from the Code for Crown Prosecutors. In particular, under paragraphs 4.14(b) and (d), the personal circumstances or characteristics of the suspect – for example, their age or the state of their physical or mental health, or other vulnerabilities – are factors which may mean it is less likely that a prosecution is required. This information should be provided by Immigration Enforcement CFI. However, prosecutors can also consider information from other sources including the police, other investigators, the suspect or those acting on their behalf.

68.    In addition, in cases (including indictable-only cases) where the likely sentence would be less than two years, consideration should be given to referring the case to a Crown Prosecutor for a Foreign National Offender (FNO) Conditional Caution to be authorised, with foreign offender conditions. The Code of Practice for Adult Conditional Cautions 2013 and the Director’s Guidance on Adult Conditional Cautioning 2019 must be applied. In such cases, the offender may be required to:

• Report regularly to an immigration office, reporting centre, police station or other similar place, pending removal.
• Obtain or assist authorities in obtaining a valid national travel document; or 
• Comply with removal directions and any lawful directions given to effect departure; and
• Not return to the UK within a specified period of time, normally 5 years as set out in the Immigration Rules.

69.    When considering administrative removal or a FNO Conditional Caution as an alternative to prosecution, the Prosecutor will have regard to the fact that there is a substantial cost to the public when a FNO who needs to be managed in the community or kept in immigration detention, remains in the UK.

70.    The following aggravating factors would also be relevant when considering a decision in favour of prosecution:

Section 24 illegal entry and similar offences

• The level of culpability involved in securing illegal entry (this might include other relevant offences committed alongside immigration offences). 
• Offenders who are in breach of a Deportation Order and those who are repeat offenders who have previously been removed. 
• Offenders who are in breach of a decision or Order to exclude them from the UK or to ban them from re-entry for a specified period.
• Where the suspect has previous convictions or has committed other offences in addition to the immigration offending.
• A potentially substantial confiscation order and the likelihood of timely enforcement.
• Evidence of violence / harm or risk to life to others. 
• Evidence of money flows or financial advantage / gain or benefit.
• Evidence of repeated attempts to enter the UK illegally.
• Evidence that the suspect was previously refused entry clearance or a prior application for an Electronic Travel Authorisation (ETA) to the UK.
• The offending compromised the genuine identity of another person, causing them loss, distress, or inconvenience (obtaining leave by deception / entering without leave through fraud).
• Evidence of provable involvement with an organised crime group behind the criminality.

Where a claim for asylum has been made, factors in support of prosecution may be: 

• Non-meritorious claims. 
• Additional factual elements providing the context of the offence or particular circumstances of the unlawful arrival in the UK, indicative of higher culpability or higher seriousness of the offending; and 
• Factors relating to the suspect, whether relating to the suspect’s circumstances in their country of origin or to their journey, indicative of higher culpability.

Section 25 and 25A offences

• The level of culpability involved in securing or assisting the illegal entry of individuals or asylum seekers to the UK or a member State in breach of immigration laws (this might include other offences committed alongside immigration offences). 
• The suspect’s actions caused harm to others, or placed other persons’ life, health or safety at risk (including those who rescue migrants at sea). 
• Where the only evidence of facilitation is steering the boat for a short period, for example a hand on the tiller, it may be more appropriate to charge for attempted entry. Where there is significant evidence however of organised facilitation and piloting the boat and/or arranging the journey, a charge of facilitation would be appropriate.
• Disruption to services, such as those relating to train services in the Channel Tunnel, or disruption to other shipping / vessels in the channel.
• Economic loss, which may, for example, be linked to any disruption of services. 
• The offending caused a significant investment of police or Immigration resources. 
• The different levels of culpability of migrants in boats or lorries, in particular between those who travel on RHIBs with the intention or expectation that they will be intercepted and those whose intention is to avoid immigration controls altogether through concealed entry.
• Where there is evidence that the suspect has greater involvement and a more significant role in organising the facilitation of migrants and the offence is not an isolated incident. 
• The absence of any gain (whether financial or otherwise). 

Resources

71.    IE / police shall notify the CPS as soon as possible where substantial prosecution resources are likely to be required, whether in relation to a specific case, or a series of cases as appropriate.

72.    IE / police shall consider whether there are linked cases which could lead to complex disclosure, international or other difficult legal issues or which could give rise to significant media or political interest and notify the CPS immediately any are identified.

73.    IE / police will ensure that sufficient resources are available for the effective and efficient conduct of investigations. The CPS will ensure that there are sufficient resources available for the effective and efficient prosecution of IE Casework in England and Wales. 

74.    IE / police will pay all investigation costs and the CPS will pay all prosecution costs. IE / police shall pay the costs of all translation of witness statements, transcripts of defendants’ interviews and material provided in response to an International Letter of Request where it falls to be considered by the investigators first to ascertain whether it should be served as evidence, classified as unused material or be treated as non-relevant material.

75.    All organisations will seek to use their resources as efficiently and effectively as possible. Where concerns as to the adequacy of resources deployed are raised, these will be dealt with by the prosecution and the case team in the first instance. Any problems incapable of resolution in this manner may be escalated in accordance with the governance structure set out within this MoU.

76.    The Parties recognise the importance of early and regular consultation to facilitate the efficient management of investigation and prosecution resources.

Training

77.    IE / police will ensure that its investigators are trained and have the appropriate level of experience to deal effectively with all aspects of its criminal investigatory work. This includes ensuring that all officers who are appointed as disclosure officers have received appropriate training for that role. The CPS will ensure that their prosecutors are trained and have the appropriate level of experience and expertise to deal with all aspects of immigration casework subject to this MoU.   

78.    The Parties will support each other’s training initiatives and will endeavour to undertake this training jointly whenever possible. 

Exchange of Information

79.    All exchanges of management information between the Parties will be dealt with in accordance with the law. 

80.    IE / police will provide the CPS with management information on the volumes and types of cases being investigated by it to assist the CPS with its forward planning and resourcing in accordance with Data Sharing Agreements (DSAs). 

Digital Working

81.    All Parties are committed to working digitally where they are able. IE use the Two-Way Interface (TWIF) process for electronic casefile referral to transfer files and request charging advice, following introduction of the Clue computer system. For TWIF incompatible files (such as Excel) Egress accounts for direct transfer to the CPS.

Archiving and file retention and retrieval

82.    Archiving, retention and retrieval of prosecution files will be carried out in accordance with CPS policy and procedure. 

Ministerial and Parliamentary correspondence

83.    Where one of the Parties to this MoU receives Ministerial or Parliamentary correspondence in connection with matters pertaining to the investigation and prosecution of crime and connected policies, it will consult with the other Parties to seek relevant contributions and cleared lines that relate to the work of the other Parties before a reply is sent. Contact will be via the Home Office Parliamentary Team, and the CPS Parliamentary Correspondence Unit within two working days of receipt. Generally, whilst the Home Office, IE and the CPS will deal with investigative and prosecution questions respectively, any queries in respect of immigration crime generally should be referred to both IE and the CPS.

84.    The Home Secretary and Immigration Minister’s Private Offices and the Attorney General’s Office (AGO) will be engaged as appropriate.

85.    IE will reply to Ministerial or Parliamentary correspondence within the time limits set by the Cabinet Office. 

86.    The CPS will reply to Ministerial or Parliamentary correspondence within the time limits set by the CPS in its Briefing for Parliament Guide. 

87.    If one of the Parties receives Ministerial or Parliamentary correspondence which is more appropriately handled by being transferred to one of the other Parties, they will arrange for it to be passed on within two working days of receipt. If a Party is asked to accept the transfer of correspondence, they should formally accept/decline the correspondence within two working days of the request for transfer.

Parliamentary Questions 

88.    The CPS will liaise with the Home Office and the AGO as appropriate.

89.    The Home Office, the CPS and the AGO will decide jointly whether Home Office Ministers or the Law Officers are in the best position to answer particular Parliamentary Questions where responsibility is not immediately clear. The Home Office and the CPS will draft answers or contributions to Parliamentary Questions in accordance the deadlines set by the AGO, the Home Office or the CPS as appropriate and, where necessary, after discussion with each other. 

Media handling 

90.    The communications teams within the CPS, IE and police will work together as appropriate, reflecting the organisations’ separate roles.

91.    The press offices of each Party will work together on any media communications relating to investigations, prosecutions or policies relating to the subject matter of this MoU.  

92.    Where possible, a Party will not make any public announcements or provide any lines or information to the press regarding a specific investigation or prosecution relating to this MoU, without having first consulted with the other Party / Parties.

Complaints from third parties 

93.    The CPS defines a complaint as any expression of dissatisfaction about any aspect of their service by a person who is directly involved in that service (not including defendants in on-going cases or convicted defendants). Concerns about the CPS that fall outside that definition are treated as feedback. 

94.    The CPS will handle complaints and feedback in relation to its published policy. 

95.    For the purposes of this MOU, IE / police define a complaint as a statement (whether oral, written or electronic) expressing dissatisfaction about the exercise of their functions and/or about the professional conduct of their staff including contractors. 

96.    Subject to the work of external scrutiny bodies, IE / police will handle complaints and feedback in relation to them. 

97.    Wherever, in the opinion of the Parties, a complaint or any feedback requires joint handling, they will consult the appropriate participant/s before replying. 

98.    If any Party receives a complaint or feedback intended for another Party, they will pass it to that Party within 5 working days of receipt of the complaint or feedback. If a Party is asked to accept the transfer of a complaint, they should formally accept/decline it within the timescales advised in the Cabinet Office Guide to Handling Correspondence following a request for transfer.

99.    Complaints received about the conduct of a Party in respect of relevant casework shall be dealt with by the Party against whom the complaint is made.  

100.    Where the action complained of relates to the conduct of more than one Party, the Party in receipt of the complaint should consult the other Party / Parties before replying. Where there are clear lines of demarcation, it may be appropriate for each Party to respond separately to the complaint made against it.

Requests for information from the public

101.    If any Party receives a request under the Freedom of Information Act 2000 (FOIA), or the Data Protection Act 2018 (DPA) for information they must ascertain what information they hold and respond to the applicant accordingly. If they do not hold the information and believe it may be held by another Party, they will, after first liaising, respond to the applicant within two working days informing the applicant that they do not hold the information and give the alternative Party’s appropriate contact details. Generally, whilst IE and CPS will deal with investigative and prosecution questions respectively, any queries in respect of immigration crime should be referred to IE even if the query relates to a prosecution case.

102.    For the CPS, requests for information under FOIA and Subject Access Requests (SAR) under DPA are dealt with by the Information Access Team at CPS HQ. 

Monitoring and Review 

103.    The arrangements in respect of the specific discharge of IE, National Policing and CPS duties in relation to the disclosure of unused material in criminal cases are set out in Annex A. 

104.    A Joint Immigration Casework Liaison Group (JICLiG) comprising senior representatives from IE, National Policing, NCA, CPS Immigration Lead, Home Office Legal Advisors Branch, CPS Strategy and Policy Directorate, CPS Direct, CPS Serious Economic, Organised Crime and International Directorate, CPS Proceeds of Crime Unit and representatives of CPS Complex Casework Units will monitor the MOU and provide regular interface on casework, file build, resources, file quality and training.

105.    The IE Director of Criminal & Financial Investigation (and national policing where relevant) will keep the CPS Immigration Lead fully informed about the number and weight of criminal investigations in progress and any proposed changes in policy that might have any impact on those numbers. IE will provide the JICLiG with case data as generated by CIDRE.

106.    CPS Areas will be responsible for identifying high profile/sensitive cases. The Sensitive Case list will be maintained listing cases that may involve any combination of high risk, high impact or potentially high-profile matters. It will be kept up-to-date by all Parties and shared via the JICLiG. 

107.    The JICLiG will identify appropriate cases for joint de-briefing meeting when it is believed that useful lessons can be learned about particular completed cases or types of cases. Where lessons are identified, the JICLiG will disseminate them across their organisations as appropriate. 

108.    The JICLiG will meet on a quarterly basis or as necessary to receive reports on the operation of the MOU. The Group will conduct a review of the provisions of the MOU after 6 months and at the end of its first year of operation and thereafter as agreed between the Parties. 

109.    The CPS will provide briefings on specific cases on reasonable notice, as requested by IE/ national policing. In all cases the CPS will try to meet reasonable timescales and, where briefings are required urgently, will supply the information as quickly as possible in all the circumstances.

110.    A review of this MOU will be conducted 12 months after its commencement, and thereafter annually, or as agreed between the Parties. 

Miscellaneous

111.    An up-to-date list of contact details of IE/ National Policing and the CPS under this MOU will be retained by the Parties. 

112.    This MOU may be modified by agreement in writing between the Parties.  

Signed:   

Max Hill QC, Director of Public Prosecutions
Crown Prosecution Service 
Date:  25 June 2022

Signed:   

Tony Eastaugh CBE, Director General of Immigration Enforcement
Immigration Enforcement
Date:  14 June 2022

Signed:

ACC J Pearce, NPCC lead for Organised Immigration Crime
Police 
Date:  24 June 2022

Annex A

Roles and responsibilities

IE / Police Shall:

1.1.    Decide which cases fall within criminal investigation policy and shall consider each case in relation to the investigation strategy.
1.2.    Make decisions on the scope and ambit of individual investigations, taking into account, where applicable, advice received from the CPS. 
1.3.    Ensure that all operations are compliant with the law and relevant Departmental Instructions.
1.4.    Consult with their advisory lawyers in accordance with internal guidance and where set out In this Agreement. Specifically, in relation to:

• The resolution of assertions that seized material contains items subject to LPP.
• To advise on/arrange representation at court where investigative measures are sought (i.e. production and access orders).
• Applications made to the courts for search/arrest warrants.
• Appoint an Officer in Charge (OIC) who shall be in charge of each investigation pursuant to the CPIA Code of Practice who has the appropriate skills to pursue and manage the investigation and thereafter collect evidence for the case. The OIC is responsible for pursuing all reasonable lines of enquiry and may delegate tasks to other officers.
• Appoint a Disclosure Officer (DO) who has received the appropriate training and is able to properly carry out the role. The DO shall be responsible for recording, retaining and revealing relevant material to the Prosecutor (through the DO’s report and schedules of unused material). 
• Appoint, when appropriate, a Financial Investigator (FI).
• Provide support to the CPS through the case team.
• Notify the CPS as soon as it is known that there are or may be other linked operations or cases to the one being prosecuted.
• Notify the CPS where they are contacted directly by the defence and shall convey the content of that contact.
• Notify the CPS where they are contacted directly by another agency or third-party who have an interest in the matter.

1.5.    Involve the CPS at the earliest available opportunity when:

• Consideration is to be given to the involvement of other Government Departments (e.g. Department for Work and Pensions, Her Majesty’s Revenue and Customs).
• Consideration is to be given to the adoption of any case which is likely to require the deployment of substantial prosecution resources, involves a suspect or suspects likely to attract substantial media or political interest, which is likely to give rise to novel or innovative legal issues or which is otherwise likely to prove especially contentious or difficult.

1.6.    Open relevant case management records once a decision is made to adopt a case for criminal investigation. A copy of such records shall be made available to the CPS as required for information.

1.7.    Attend, as requested by and agreed with the prosecutor, any pre-trial conferences. Those significantly involved in the case should attend as necessary (e.g. OIC, DO, FI, Accountant, Digital Forensic Officer). The CPS shall arrange and manage all case conferences. Thereafter, IE / police shall complete in a timely fashion any actions or tasks allocated and agreed in order to ensure that the case is trial ready. This shall include devising any schedules of evidence or other documents as requested by the prosecutor to ensure that the case can be presented to the jury.

1.8.    Agree with the prosecutor which members of the case team need to attend at court hearings and ensure that attendance.

1.9.    The FI shall attend all case conferences and court hearings where appropriate.

1.10.    Ensure that all relevant material, (evidence/unused) is available and accessible when relevant for court hearings.

1.11.    Provide the CPS with up-to-date antecedents from the Police National Computer (PNC) prior to the first hearing. This shall include requesting the details of any foreign convictions which are recorded against a suspect so that the court is able to take the same into account when proceeding to sentence. IE / police shall then ensure that updated antecedents are provided to the CPS prior to trial/sentencing whichever is relevant.

1.12.    In all cases where evidence remains to be collected and forwarded to the CPS, regularly update the prosecutor of their progress with regard to the same and shall forward to the CPS copies of all statements and any relevant material as soon as it is secured.

1.13.    Advise the CPS of the defendant’s fiscal situation so that an informed decision can be taken with regard to the commencement of confiscation proceedings. Where foreign enquiries are necessary, advise the CPS at the earliest opportunity.

1.14.    Inform the CPS of any contact with judicial or government contacts abroad where such enquiries were instigated before the case was referred to the CPS.

1.15.    Inform the CPS when consideration is being given to the adoption for criminal investigation of any case likely to require the deployment of substantial prosecution resources, which involves a suspect or suspects likely to attract substantial media or political interest, which is likely to give rise to novel or innovative legal issues or which is otherwise likely to prove especially contentious or difficult.

1.16.    Inform the CPS as soon as possible where there is believed to be a risk that assets may be dissipated such that consideration should be given to seeking a restraint order.

The CPS shall:

1.17.    Open a Prosecution Strategy Document (PSD) in appropriate cases as soon as a case is referred by IE / police for allocation.

1.18.    Be responsible for making all legal decisions with regard to the conduct of the case; including, but not limited to, those expressly set out in this Agreement.

1.19.    Review all of the evidence and unused material.

1.20.    Draft charges which accurately reflect the nature of the offence/s committed. The charges / indictment may change over the life of the case as further evidence / information emerges. The CPS shall formally notify the defence, the court and IE / police of any changes as soon as they are determined.

1.21.    Review all papers provided by IE / police and thereafter serve upon the defence, trial / committal bundles and thereafter a Notice/s of Further Evidence, any additional evidence as is appropriate. The CPS shall disclose to the defendant schedules of non-sensitive unused material.

1.22.    When appropriate, draft and thereafter issue any Letters of Request (LOR) that are necessary in order to obtain evidence and or exhibits from abroad and shall thereafter monitor and secure the evidence/information sought in such requests. The Case lawyer shall acknowledge LOR requests within 7 days and issue the request within 28 days. Where this is not possible, CFG shall advise IE / police of the circumstances of the delay. The CPS shall ensure LOR material received can be used for confiscation purposes when appropriate.

1.23.    Advise upon, and issue, any extradition proceedings.

1.24.    Monitor Custody Time Limits (CTL); ensuring, when it becomes necessary, that a properly drafted application to extend the CTL is before the court and an advocate is instructed to make the application to extend the time limits.

1.25.    Draft all necessary applications for service upon the court.

1.26.    Prepare and serve jury bundles on all Parties in appropriate cases.

1.27.    Manage all court directed and statutory timetables, which shall include, when necessary, seeking an extension of time from the court to ensure the same.

1.28.    Immediately notify the other Parties where it is contacted by the defendant or the defence team with regard to the offer of any assistance by the defendant to IE / police.

1.29.    Exercise any relevant powers under Part 2 of the Serious Organised Crime and Police Act 2005.

1.30.    Liaise with colleagues in CPS POC in relation to any application for a restraint order and thereafter in relation to any matters that may affect the maintenance or variation of any orders obtained.

1.31.    Apply for any confiscation order(s) or, where it is deemed more appropriate to do so, liaise with POCU to enable them to do so on behalf of CFG.

1.32.    Apply, where appropriate, for any other relevant ancillary orders against the defendant(s).

2.    Joint roles and responsibilities

IE / police and the CPS, together, shall:

2.1.    Discuss avenues of investigation to maximise evidence gathering potential, the pursuit of appropriate lines of enquiries with consideration of future prosecutions including evidence from overseas / extradition.

2.2.    Consider the need for a Joint Investigation Team (JIT) in appropriate cases.

2.3.    Assess the impact or likelihood of prosecutions to be taken outside of the UK jurisdiction.

2.4.    Work on proactively identifying legal risks to the case. These may include complex disclosure and PII issues or international enquiries, both pre and post charge.

2.5.    Monitor the case sensitivity status, alerting the other if either at any time considers the case should be the subject of sensitive reporting.

2.6.    Consider the need for early case strategy meetings, particularly in any case deemed to be of high complexity or likely to require significant investigation or prosecution resource. Where an early case strategy meeting is held, it will give consideration to the following:

• The overall strategic objective of the case, including the likely number of suspects/defendants to be prosecuted. Where there is a “twin aim” of seeking prosecution and deporting people who may be witnesses, this needs to be highlighted and discussed with the CPS at an early stage, to ensure the required evidence is available to be adduced at any subsequent trial. 
• The resources likely to be required to successfully meet that objective, including the early instruction of Counsel.
• The key milestones to be achieved to ensure the effective and efficient progress of the case.
• The degree to which the case is likely to attract significant media or political interest or otherwise be deemed to be especially sensitive.
• The likely requirement for extradition / Diffusion Warrants to be obtained and/or for Letters of Request to be sought.
• The potential for financial recovery and any consequential requirement to take pro-active steps to prevent the dissipation of assets by seeking a restraint order.
• The need for other ancillary orders, including consideration of alternatives to prosecution of suspects in respect of whom a decision is made not to prosecute.
• The need to apply for special measures or consider the use of SOCPA 2005 powers.
• The potential use of Electronic Presentation of Evidence.

2.7    Agree what direct contact between IE / police and counsel may be appropriate. Direct contact shall be limited to the clarification of issues previously discussed and shall never include contact which may incur any chargeable service. The Parties shall notify the CPS of all such contact.

2.8.    Jointly consider issues relating to disclosure, as set out in paragraph 9 below.

3.    Roles and responsibilities when seeking advice on an investigation prior to the decision to charge/institute proceedings:

3.1    The relevant Party shall provide a Case Notification Form to the CPS in cases where it is considered that pre-arrest advice is required. It should specify the advice sought and, when that advice is time critical, will specifically draw attention to that fact.

3.2    The relevant Party shall liaise regularly with the CPS until they are advised that a substantive file has been received which can be considered and shall ensure the provision of such material as the CPS request to enable the case to be considered as soon as possible.

3.3    The relevant Party shall draw the prosecutor’s attention towards any particular issues known to them which may materially affect the advice given by the prosecutor.

3.4    Where there is no specified time frame for any such advice the CPS shall provide the same within 15 working days of receipt of a substantive file.

3.5    The advice from the CPS will usually be given in writing. When advice is required urgently it can be given orally, but written confirmation of it will be provided by the CPS as soon as practicable thereafter. This can be in e-mail form.

4.    Roles and responsibilities when seeking advice on a case to be considered for a decision to charge/institute proceedings:

4.1.    The relevant Party should request charging decisions from the CPS using an MG3 form. The IE / police Call Detail Record should outline the circumstances of the suspected offences and will highlight strengths and weaknesses of the case.

4.2.    The relevant Party shall reveal to the CPS any identified weaknesses within the prosecution case/evidence and/or any potential problems identified with regard to disclosure. Thereafter, the CPS shall be kept updated with regard to any amendments to the disclosure report/schedule and any significant development with regard to disclosure.

4.3.    In dealing with requests for charging advice, submitted on the MG3, CPS prosecutors shall provide their decisions in writing, on the second part of the MG3 form. This provides IE / police with the authority to charge.  As far as possible, responses will be given within the time frame requested by officers and when suspects are in custody always within any detention period authorised under the Police and Criminal Evidence Act 1984 (PACE).

4.4.    The CPS shall make charging decisions having applied the Code for Crown Prosecutors to the facts. The CPS shall, where necessary, consult with the relevant Party with regard to Public Interest and sensitive case issues.

4.5.    Should an immediate charging decision be needed during office hours i.e. Monday to Friday nine am to five pm, calls shall be made to the CPS office geographically most likely to take forward the case after charge and in accordance with the referral criteria document.

4.6.    When the prosecutor recommends an immediate charging decision outside of office hours, i.e. between five pm to nine am, Monday to Friday or between five pm Friday to nine am Monday, the OIC will contact CPS Direct.

4.7.    The case team shall deal with the charging of the suspect and when the suspect is remanded in custody overnight / the weekend or a bank holiday period, the case team shall contact the CPS out of hours team, to ensure cover at court.

4.8.    The OIC shall ensure either their own attendance at the first hearing or the attendance of a suitably briefed deputing officer.

4.9.    The prosecutor shall draft the initial details of the prosecution case (IDPC) for the first hearing, which shall usually comprise a summary of the case and will also include a précis of all video recorded interviews.

4.10.    The OIC shall ensure that a copy/ies of the up-to-date PNC antecedents of the defendant/s and confirmation that requests have been made in respect of foreign convictions, is available at court for the first hearing.

4.11.    Where the IDPC has not been served on the defence, (i.e. usually in a custody case where the first hearing follows out of hours advice to charge the same) the prosecutor shall serve the IDPC at court. The CPS shall ensure that it is served upon the defence.

5.    Roles and responsibilities as regards bail

5.1.    To ensure that full and accurate information is presented to the court regarding bail IE / police shall provide to the CPS all relevant information regarding the suitability or otherwise of a defendant to be admitted to bail. Such information shall include a copy of the police antecedents form; details of any previous history of offending and breaching of bail; including any previous convictions from overseas; details of any history of failing to comply with bail, including details of any aggravating features. IE / police should also supply when possible, details of factors that might support admission to bail. This will enable an informed decision to be made on any objections to bail and consideration to be given as to the most effective conditions that could be imposed to ensure compliance.

5.2.    Where an application for bail (or to vary bail) is made which introduces new information not previously known to the CPS, the prosecuting advocate shall, where possible, seek an adjournment so that the verification of any facts can be made by IE / police. When dealing with breaches of bail the prosecuting advocate shall remind the court that breaches should be dealt with as soon as reasonably practicable and invite the court to consider revoking bail.

5.3.    There shall be a mutual responsibility on all Parties to notify as soon as is practicable, when they become aware of any changes to the defendant's bail situation.

5.4.    There shall be a mutual responsibility on all Parties to notify within 24 hours of the outcome of any bail hearings.

6.    Roles and Responsibilities following the decision to commence criminal proceedings

IE Criminal Investigation / police shall:

6.1.    Appoint a “Case Team” to investigate and support the CPS “Legal Team” in the prosecution of the case. The Case team shall consist of at least the following: an Officer in Charge (OIC) and Disclosure Officer (DO) who shall be supervised by a Senior Investigating Officer (SIO, who may also be the OIC).  In larger and more complex cases the teams may be larger and may include deputies to the principal officers.  In all cases, consideration shall be given to the appointment of a financial officer.

6.2.    Ensure that all staff engaged in the evidence gathering process:

• Have received training in relation to Court appearances or have awareness of Departmental instructions in relation to court appearances.
• Act in compliance with own procedure’s instructions relating to court proceedings.

6.3.    Ensure that all staff engaged in the disclosure process:

• Have sufficient skills and authority, commensurate with the complexity of the investigation, to discharge their functions effectively.
• Have received the appropriate level of Departmental training in the handling of unused material in criminal proceedings.
• Act in compliance with own procedures relating to disclosure.

The CPS shall:

6.4    Appoint a “legal team” to prosecute the case. The legal team shall consist of a case lawyer (the prosecutor), who shall have sufficient experience and expertise to prosecute the case. The prosecutor will be supported by a Case Manager (CM) who shall also be the Case Progression Officer.  In appropriate cases, and where resources permit, a second prosecutor may also be appointed.

6.5    When appropriate and necessary, nominate either Counsel from the appropriate CPS approved Advocate Panel; or a CPS advocate, ensuring in either case, as far as possible, that the advocate instructed has the appropriate skills and experience commensurate with the complexity of the case and, where relevant, the appropriate level of security clearance in order to work with the legal team in prosecuting the case.

6.6    Ensure that the advocate instructed is fully briefed on the case and has any particular matters of legal or factual sensitivity drawn to their attention as soon as practicable.

6.7    Ensure appropriate court cover at all court hearings until the end of the proceedings, including attendance by the allocated prosecutor where appropriate.

7.    Roles and responsibilities as regards provision and service of case papers

7.1.    IE / police shall ensure that the CPS has been provided with such papers, in a format agreed between the OIC and case prosecutor, as are required in order to progress the case within the relevant timetable.

7.2.    Papers should usually include as a minimum the following:

• A copy of the Charge Sheet.
• A copy of the Custody Record.
• A Case Summary.
• Witness statements.
• A summary of the video recorded interview and a copy of the actual taped record, or a full transcript of the video recorded interview/s.
• Copies of exhibits and an exhibit list.
• Any forensic evidence e.g. handwriting, accountant’s reports, fingerprints analysis etc.
• Disclosure Officer’s Report.
• Schedules of Unused material.

7.3    When the OIC submits papers to the CPS either for advice or as part of the prosecution case they shall ensure the following:

• That no original documents are included unless specifically requested.
• That all copies are on a single side of (equivalent) A4 paper and that the copies are sufficiently clear for their contents to be read and understood.
• All witness statements have been checked by the SIO.
• That where exhibits are smaller than A4, they shall be copied onto a blank A4 paper.
• That statements are presented in chronological order so that the facts of the offence are presented sequentially.
• That sensitive schedules listing unused material are included on pink / red paper.

7.4    The CPS shall ensure service of all papers upon the defence in good time and so as to ensure that they can prepare for the next court hearing.

8.    Roles and responsibilities as regards witnesses

IE / police shall:

8.1.    Warn all witnesses of possible requirement to attend at any trial and provide to the CPS their dates of availability prior to any trial date being set and, in any event, least 10 days prior to any committal or PCMH hearing date.

8.2.    Provide the CPS with up-to-date antecedents from the PNC prior to the first hearing. Updated antecedents should be provided to the CPS prior to trial/sentencing, whichever is relevant. Any foreign convictions should also be obtained.

8.3.    Identify those witnesses who may require special measures in accordance with the Youth Justice and Criminal Evidence Act 1999.  IE / police and the CPS shall give due consideration to use of special measures (e.g. screens etc.) at trial and shall organise the provision of the same with the court when necessary. The need for interpreters should also be considered.

8.4.   Facilitate the appearance and subsequent treatment of witnesses (departmental / non-departmental and sensitive).

8.5.    Ensure all witnesses have access to their witness statements.

8.6.    Inform witnesses of the outcome of proceedings.

8.7.    Ensure foreign witnesses can give evidence from overseas via video link in accordance with Home Office guidance.⁵

The CPS shall:

8.8    Ensure that the victim or witness is able to give their ‘best evidence’ at court. This will include, exceptionally, making any application to protect the identity of the victim or witness or prevent inappropriate reporting in the media in cases where such applications are considered necessary.

8.9    Make relevant applications to the court for special measures, including witnesses to give evidence from overseas, and/or if exceptionally necessary, applications for witness anonymity.

9.    Roles and responsibilities as regards disclosure

IE / police and CPS, jointly, shall:

9.1.    Consider the approach to be taken to the management of disclosure, including:

• The likely evidential and disclosure difficulties to be encountered and the necessary strategies to be employed to overcome or mitigate those difficulties including, where appropriate, the use of any case specific protocols.
• The use of a Disclosure Management Document in all complex cases.
• The approach to be taken towards the handling of any sensitive material (including possible applications for public interest immunity).
• The approach to be taken where the relevant Party owes a duty of care to any individual.
• The likelihood of possible joint operations with other investigating agencies and prosecution authorities.

IE / police shall:

9.2.    Appoint a DO in each case who has received appropriate training for the role.

9.3.    Formulate a disclosure plan in each case in line with Home Office guidance.

9.4.    Comply with the Code of Practice, issued under section 23 of the CPIA 1996 (the Code of   Practice); in particular:

• Record and retain relevant material obtained or generated by all those involved during the course of the investigation.
• Ensure that all reasonable lines of enquiry are pursued, irrespective of whether the resultant evidence is more likely to assist the prosecution or the accused.
• Create schedules of relevant unused material retained during the investigation and submit them to the prosecutor together with certain categories of material.

9.5.    Identify and ensure that all relevant case material held by IE / police and other agencies involved is revealed to the prosecutor on the MG6 forms.

9.6.    Maintain a Log of Events in each case.

9.7.    Include reference on the unused material schedule where witnesses have undertaken Home Office Interviews and describe the relevant material arising.

9.8.    Ensure that disclosure schedules are up-to-date and unused material is stored in accordance with CPIA. The DO shall complete a DO’s report in all cases.

9.9.    Regularly update the prosecutor on the status of their disclosure plan, the schedules of unused material and the DO’s reports.

9.10.    Ensure that prior to trial the prosecutor has been provided with details of any adverse findings made in respect of any witnesses which shall, as far as possible, include details of any previous criminal convictions and any outstanding proceedings of either a criminal or disciplinary nature.

9.11.    Advise the CPS on any additions/amendments to the disclosure report/schedule.

9.12.    Attend any PII Hearings and shall supply all relevant paperwork for the same.

9.13.    At the conclusion of the case, ensure that disclosure schedules are up-to-date and unused material is stored in accordance with CPIA and IE / police records management policy.

The CPS shall:

9.14.  Check and thereafter disclose all schedules of unused material prepared by the DO.

9.15.  Check all listed items on the schedules to ensure the following: Clarity and accuracy of description, sufficiency of information in the description to ensure that the relevance, nature and content of the material can be understood. Where the prosecutor is unclear with regard to any of the aforementioned matters, the prosecutor shall discuss them with the DO until satisfied that the schedule is CPIA compliant.

9.16.  Deal with the initial disclosure of unused material not later than 5 working days after committal or transfer, save when not in possession of schedules.

9.17.  Disclose with the agreed schedules, when appropriate, any material that falls to be disclosed to the defence, either on the face of the schedule or by way of additional accompanying copy documents.

9.18.  Following initial disclosure, pro-actively work to secure from the defence a copy of any defence statement, including when necessary having the case listed for mention to obtain a court direction for service.

9.19.  When a defence statement is served, ensure that a copy is immediately forwarded to the DO. The DO shall ensure compliance with regard to the continuing duty to review material under CPIA and shall report the outcome of the same to the prosecutor to facilitate on-going disclosure.

9.20.  The CPS shall challenge inadequate defence statements including when necessary having the case listed for mention to obtain a court direction causing material improvement.

9.21.  The CPS shall notify the relevant Party immediately where any general request is received from the defence which requires action.

9.22.  Review the reports on the witnesses which detail any adverse findings recorded against them and, where required to do so, disclose the same to the defence, having first notified the witness of their intended course of action.

9.23.  Advise in respect of, and prepare court papers for, any PII applications to be made, either ex parte or on notice.

9.24.  Consider the approach to be taken to the management of disclosure, including:

• The use of a Disclosure Management Document in all complex cases.
• The approach to be taken towards the handling of any sensitive material (including possible applications for public interest immunity).
• The approach to be taken where there is a duty of care owed to any individual.
• The likelihood of possible joint operations with other investigating agencies and prosecution authorities.

10.   Roles and responsibilities as regards sentence

10.1.    The CPS shall ensure that for the purpose of any sentence hearing it presents all relevant facts to the court in accordance with the Attorney General's Guidelines on The Role of the Prosecutor at Sentence hearings.

10.2.    Where a defendant offers to plead guilty to one or more of the counts on the indictment preferred, the CPS shall consider such pleas offered in light of the Attorney General’s Guidelines on the Acceptance of Guilty Pleas and shall discuss the same with IE / police prior to any decision. Specific joint consideration (to include the FI) shall be given to the effect of pleas offered on any linked confiscation process or ancillary orders.

10.3.    The CPS may require assistance from IE / police in securing and collecting any relevant material to support the sentence process including any material secured pursuant to the Serious Organised Crime and Police Act or details of any relevant foreign Convictions.

10.4    Where the defendant’s sentence is considered to be unduly lenient and is suitable for referral to the AGO, the CPS shall provide a full report to the ULS Team in accordance with the Unduly Lenient Sentences guidance.

11.    Roles and responsibilities as regards confiscation

IE / police shall:

11.1.    Carry out, through the FI, all enquiries necessary under the Proceeds of Crime Act 2002 and/or other applicable legislation to ensure that cases can be prepared for confiscation hearings.

11.2.    Provide all relevant information requested by the CPS necessary to ensure the gathering of information and evidence held abroad, in respect of which the CPS wish to issue a Letter of Request, for the purposes of confiscation.

11.3.    Prepare the section 16 prosecutor’s statement in accordance with the timetable set by the court. This will be provided to the CPS.

11.4.    Ensure that the FI attends all case conferences and confiscation hearings as agreed with the prosecutor.

 The CPS shall:

11.5.    Carry out all case preparation as is necessitated under the Proceeds of Crime Act or other applicable legislation in ensuring cases are ready for confiscation hearings.

11.6.    Upon receipt of the section 16 statement, check and thereafter serve the statement upon the defence.

11.7.    Where any delay is due to non-compliance with the timetable by the defence, the CPS shall write to request the outstanding documents/material be provided. If the defence does not comply with the request or fail to provide good reasons as to why it is not possible to comply, the CPS shall have the matter listed in order to seek the assistance of the court. The CPS shall ask the court to fix a clear timetable with significant dates clearly stated; any failure by the defence to comply shall be listed for a Mention. The CPS shall ensure submissions are framed so as to limit the effect of late third-party or matrimonial claims.

12.    Roles and responsibilities as regards warrants

12.1.    IE / police shall aim to review, on an annual basis, all UK Arrest Warrants obtained during an investigation for both fiscal and non-fiscal cases to ensure the case papers remain in order to meet requisite evidential standards.

12.2.    Should IE / police or CPS consider there are grounds for a warrant to be withdrawn, the CPS shall review the case and where appropriate, make application to the court within 60 days.

12.3.    CPS and IE / police will keep each other appraised of the progress with the application, in particular to confirm when the warrant was withdrawn.

12.4.    IE / police and the CPS shall appraise each other as soon as practicable, of any decision made by a court or Other Government Department which affects an extradition.

12.5.    IE / police and CPS shall provide each other with such papers as are required to progress warrant amendments, extradition proceedings or cessation of proceedings as soon as is practicable.

12.6.    IE / police shall update the PNC with all changes of circumstances regarding warrants.

13.    Roles and responsibilities as regards appeals

13.1.    The CPS shall notify IE / police of all appeals against conviction, noting in particular those cases where witnesses may be required to give evidence.

13.2.    The CPS shall contact IE / police to obtain witness availability for any appeal hearing at which witnesses are required to attend.

13.3.    Where the CPS considers that any sentence passed in a case to which the relevant provisions of the Criminal Justice Act 1988 apply is “unduly lenient”, a conference shall be convened to discuss the same and consideration shall be given as to whether the case should be referred to the Attorney General.

14.    Roles and responsibilities at the end of proceedings

14.1.    The Parties to this agreement shall always consider whether to hold a “lessons learnt” or case debriefing conference to enable matters of best practice or methods used in dealing with novel and complex issues to be disseminated between all organisations for the benefit of future investigations and prosecutions. Those significantly involved in the case should attend (e.g. OIC, DO, FI, Accountant, and Digital Forensic Officer, counsel). Such conferences may relate to cases from other agencies.

14.2.    Such conferences will always be held in relation to any case that has been treated as a Very High Cost case. There shall also be a presumption in favour of holding such a conference in any other instance where the case was stayed as an abuse of process or by other order of the judge or there was any judicial criticism of any of the Parties or any individual employee or there was a wasted costs order made against the prosecution.

14.3.    No Party shall accept any material that has been provided to the jury when collecting papers at the conclusion of a Crown Court Case.

14.4.    IE / police shall facilitate the updating of PNC at the conclusion of the trial.

14.5.    The CPS shall ensure that all relevant departmental records are updated.

14.6    The CPS shall ensure that all outstanding paperwork is completed and retained in accordance with the departmental document retention policy.