Disclosure Manual: Chapter 18 - Revelation and Disclosure of Police Misconduct

Material containing details of misconduct or criminal proceedings against police officers, or police staff, who are involved in an investigation might be disclosable under the CPIA (as amended by Part 5 of the Criminal Justice Act 2003). Misconduct, in this context, covers a wide range of behaviour, from minor discreditable conduct when off duty to being dishonest or untruthful which, in an operational context, carries a default sanction of dismissal.

Some findings by their nature will be incapable of having an impact on the investigation in a future case. However, where a misconduct finding relates to an officer's honesty or integrity, this should always be revealed as it is capable of affecting credibility.

It is important to note that the test for disclosure is the same as for all other material.

Statutory framework

The Police (Conduct) Regulations 2020 referred to in this chapter as "the regulations") came in to force on the 1 February 2020 and establish a statutory framework for the police misconduct regime. They relate only to misconduct matters and do not change an officer's duty to reveal and disclose criminal convictions and cautions. Misconduct proceedings which were started before this date will continue to be dealt with under the previous regime (the Police (Conduct) Regulations 2012 as amended).

Roles and responsibilities

Police Professional Standards Departments (PSDs) have final responsibility for the value judgment on whether information relating to the misconduct of police officers should be revealed to the prosecutor. This decision must be made on a case by case basis and guidance may be sought from the prosecutor if required.

In addition to managing and reviewing their own obligations to reveal, PSDs will provide advice to officers on their obligations to reveal. At the conclusion of misconduct proceedings, PSDs will assist in determining whether information should be revealed, for how long and the nature of proceedings in which the obligation exists.

Responsibility to reveal relevant misconduct findings, or criminal convictions or cautions, rests with the police officer concerned and revelation will be carried out by the individual officer using form MG6B, unless the officer has been suspended or dismissed. The officer, assisted by the PSD, should ensure that there is a sufficient level of detail on the MG6B to enable the CPS to make an informed decision about disclosure of the information in the proceedings in question.

The duty to reveal will usually be confined to complaints or allegations that result in a criminal conviction/caution and/or relevant misconduct findings of guilt. However, there may be exceptional occasions where the interests of justice require PSDs to reveal other relevant material: for instance, when it might affect the credibility of an officer where that credibility is or might be in issue.

Police officers making statements should inform the prosecutor, using form MG6B, of the existence of:

• criminal convictions for recordable offences, whether spent or otherwise;
• criminal cautions for recordable offences; and
• penalty notices for disorder for recordable offences.

There is no need to include this material on the schedule of unused material, although a brief reference to any criminal conviction or caution should be made on form MG6C if it meets the "relevance" test.

The prosecutor should inform the officer as soon as reasonably practicable, following receipt and review of the MG6B, whether the information will be disclosed or withheld. The decision to disclose or withhold information must be made or approved by a CPS Unit Head or equivalent. The decision and details must be recorded on the Disclosure Record Sheet.

Consultation before disclosure

The CPS should not disclose to the defence details of pending misconduct matters or matters such as information short of a misconduct finding, without consulting the force PSD head or his or her nominee. That consultation should be undertaken by a CPS Unit Head. Where a misconduct investigation is being supervised, managed, or independently investigated by the Independent Office for Police Conduct, the IOPC supervising member should also be consulted.

Officers under investigation

Information about officers suspended, but who have not been charged with a criminal offence or had the matter referred to misconduct proceedings, should be revealed to the prosecutor by the head of PSD. This applies to both criminal and misconduct matters.

Where an officer has been notified of allegations made against them, but is not suspended from duties, he/she is not required to reveal to the CPS the details of the allegations. However, the head of the PSD must consider, in liaison with the CPS unit head, whether the interests of justice require the revelation of that information and provide the prosecutor with the information if required.

Local arrangements should ensure that all prosecutions in which an affected officer is involved are identified and revealed to the prosecutor.

If an officer making a statement has been notified that they are under investigation in misconduct proceedings which are capable of having an impact on the particular case in which the officer is a witness, he/she should inform the prosecutor.

There may be circumstances where reliable adverse information comes to light about a police officer who has provided a statement or formed part of the investigation team, but at the same time, there is an on-going investigation against him or her. In such cases the police should reveal details to the prosecutor should the available information indicate that the adverse information is prima facie true.

Both the CPS and police will need to consider the nature of the information and any updating of it. There will usually be three possible courses of action:

• disclose the information known about the officer to the defence in order that the instant prosecution is not prejudiced. This will usually mean discarding the officer as a witness. Obviously, such disclosure might prejudice the ongoing (covert) investigation into the officer;
• abandon the instant prosecution in order to protect the ongoing covert investigation into the officer, or:
• delay disclosure, as far as possible without causing unfairness to the accused, to allow the on-going investigation into the officer to complete its covert phase.

Unit Heads should consult the CCP or Head of Central Casework Division where there is any doubt as to the correct course of action.

Criminal proceedings that have not been completed

Police officers making statements should inform the prosecutor, using form MG6B, of details of all criminal recordable offences with which they have been charged, or reported for summons, but in which proceedings have not been completed.

Credible allegations

Very occasionally, there may be exceptional circumstances in which an allegation is made against an officer by a credible witness (for instance, a resident informant) in circumstances in which a prosecution of that allegation cannot take place because of a lack of corroboration or supporting evidence. In such a case, the issues of revelation and disclosure need to be particularly carefully addressed. It may be that the account of the witness, although not formally adjudicated, is so credible that it should be revealed.

Adverse judicial findings

There is a duty to reveal and disclose adverse judicial findings. An adverse judicial finding is a finding by a court, expressly or by inevitable inference that a police witness has knowingly, whether on oath or otherwise, misled the court. This includes, in civil cases, answers from a civil jury. A validated adverse judicial finding is a serious judgment on the integrity of an officer, with consequences for the officer's future deployment and career.

The decision to confirm whether or not the judge's comments amount to an adverse judicial finding is one for the CPS. The CCP/head of the CPS Complex Case Unit/head of the Central Casework Division, or a person(s) nominated by the CCP or HQ Director with the necessary knowledge and expertise must be consulted by the officer's PSD on receipt of reports of comments which might amount to an adverse judicial finding. The CPS may take into account any representations made by the head of the force's PSD (and this may include any representations or explanations made by the relevant officer) and any advice should be given in writing. If there is any doubt in the meaning of the comments from a court, then it is unlikely that the comments would amount to an adverse finding although all decisions need to be considered in light of the disclosure test.

If the CPS decides that the comments do amount to an adverse judicial finding, forces will need to manage the consequences including consideration of a criminal investigation or misconduct proceedings, future deployment of the officer, the wording of form MG6B, and any further review of the finding.

There is no mechanism for rescinding an adverse judicial finding, but if a subsequent enquiry is held and it reveals information that exonerates the officer or casts doubt on the finding, this should be reflected in the wording of the MG6B and the prosecutor will decide whether to disclose the information.

Change of circumstances

It is essential that the prosecutor can, so far as it is possible, be confident that the information provided on the MG6B is up to date as the CPIA imposes a continuing duty on the prosecutor to disclose material that satisfies the disclosure test. Individual police officers must inform the prosecutor of any changes of circumstances regarding their misconduct and/or criminal records but the prosecutor must check the up to date position in relation to any officer prior to trial.

Where, during the lifetime of a case in which the officer is a witness, he or she becomes subject to a misconduct outcome or is charged, cautioned or convicted of a criminal recordable offence, advice should be sought from the PSD.

The prosecutor should be notified of any change in circumstances that makes the previous notification of a misconduct matter no longer appropriate i.e. a successful appeal. The officer concerned should inform the prosecutor on an updated MG6B or form MG6. If the prosecutor forms the view that the misconduct information would not meet the disclosure test taking account of the nature of the officer's evidence and what is known of the defence or likely defence, details of the misconduct finding should not be disclosed but must be kept under review and reconsidered in the light of any defence statement.

Confidentiality

Information revealed to the CPS under this procedure should be dealt with in accordance with Chapter 24. MG6B forms should normally be treated as 'Official Sensitive'.