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Disclosure Manual: Chapter 33 - Access to and Handling Highly Sensitive Third-Party Material

Refreshed: 21 October 2021|Legal Guidance

Introduction

This chapter provides guidance to investigators and prosecutors who have to deal with sensitive material generated by, or in possession of, the security and intelligence agencies (the agencies). The agencies are third parties under the CPIA. They are not deemed to be 'investigators'.

Local arrangements are in place for counter terrorism cases.

Initial contact with the agencies

Where the officer in charge of the investigation has reason to believe that an Agency has material that is potentially relevant to an investigation, he or she should ask the disclosure officer to make contact with the Agency concerned, asking them to retain the material. The disclosure officer should then contact the prosecutor to inform him or her that the Agency may have material in its possession that may need to be inspected. The prosecutor should make contact with the agency using the contact point to arrange to inspect the material.

Where the agencies believe that they have information (including documents), which may be relevant to the investigation or prosecution of a criminal offence, or to the defence, they have a general professional duty to draw this fact to the attention of the investigator or prosecutor. Furthermore, the agencies have a duty to support the administration of justice by ensuring that investigators and prosecutors are given full and proper assistance in their search for relevant material.

The agencies have enquiry points who will ensure requests for information are processed. Even where an individual within the agency has contacted the investigator or prosecutor directly, a request for information to the enquiry point should be made. If it is not clear which agency or department is responsible for the information, full details of the request should be addressed to the enquiry point of the Government Legal Department.

Requests for information should be as precisely drawn as possible, particularly where specific documents or facts are being sought. Where available and applicable, requests for information should include:

  • the reasons for believing that the agency or department has documents or other information relevant to the investigation, prosecution, or the defence;
  • the broad subject matter of the request;
  • the particular matters or issues relevant to the request;
  • the time period covered by the request;
  • the names, aliases nationalities and dates of birth of all persons;
  • the name of any companies, organisations, or any part of same;
  • details of any geographical information or limitations of the request (many departments have different sections to deal with different geographical regions);
  • the issue the information being sought is intended to test and the likely lines of defence on the issue; and
  • time-limits for responding to the request.

In all cases, requests should provide as much information as is practicable. If there is information that may be relevant or would help focus the searches to be carried out, that information should be provided. If the request contains sensitive information, the nature and degree of sensitivity should be stated to enable appropriate security measures to be taken.

Even where all the details described above are supplied, difficulties may still arise in identifying the information required. This may happen, for example, where responsibility for the information covered by the request is spread between several different departments. In these circumstances, the person responsible for dealing with the disclosure issue within the department may seek further details or suggest a meeting. It may be necessary for a more limited search for information to be carried out than that required by the terms of the request. In this case, the parameters of the search, and the reasons why a fuller search is not practicable, should be explained in writing to the person requesting the information.

There may be circumstances where it will not be appropriate to reveal to the officer in charge of the case the nature of the material the prosecution has been told about. However, the best practice is that the officer in charge of the investigation should be fully informed wherever possible. The officer in charge of the investigation has a right to be present (or represented) during any consultation on evidential matters between the prosecutor and the third party. Where the sensitivity of material leads to a request for the OIC to be excluded, the presence of another appropriately security cleared senior officer should be considered.

Initial CPS actions

Where a prosecutor has reason to believe that an agency may possess relevant material, that lawyer should discuss the issue with a prosecutor at level E or above.

The senior prosecutor should provide guidance for how and when the prosecutor should contact the agency. How this is done will depend on the individual security clearance of the lawyers concerned. The agency's contact details will be retained by the level E prosecutor.

The prosecutor should consider the need for security clearance before being able to access and review material held by such agencies. Such procedure should be discussed with the point of contact at the initial stages and an appropriate period of time to allow this to take place must be built into the timetable for case preparation.

If there is insufficient time to obtain the necessary security clearance, an application for more time may be appropriate, or a lawyer with necessary security clearance may be needed to complete the assessment of the material. Details of personnel with the appropriate clearance can usually be obtained from the Departmental Security Officer at CPS HQ.

Guidance for visiting security and intelligence agency premises

If investigators, prosecutors, or advocates have to inspect documents in the possession of the agencies, such inspection will take place at their premises.

Before the first visit, the investigator, prosecutor, or advocate should:

  • ensure that the agency has been supplied in advance with such relevant prosecution papers (such as the case summary) to enable it to retrieve the relevant material; 
  • ensure they have the correct level of security clearance, which can take several weeks to arrange; and
  • obtain a contact telephone number so that they can be reached while in meetings, as mobile phones are not permitted on agency premises.

Investigators, prosecutors, or advocates visiting agency premises should:

  • give at least twenty-four hours' notice of an intended visit;
  • expect, on first visit, to be briefed on the applicable security arrangements and may be asked to sign the Official Secrets Act;
  • remember that any written notes will not be permitted to be taken off agency premises, as the notes themselves may be classified; and
  • give advance notice if they want to make an electronic record, as a secure laptop will be required.

Should the investigator, prosecutor or advocate be required to provide written advice, this might be classified. Arrangements will need to be made for such advice to be produced securely. It is not permitted for such advice to be produced or stored on personal or chambers' computer systems. If any classified documents are required to be produced for court hearings, the agency will make arrangements for their transport, delivery, and storage.

Guidance on access to foreign intelligence agencies

There may be occasions where there are reasonable grounds to believe that material in the possession of an intelligence agency of another country is potentially of significant relevance to a prosecution. In the first instance all queries should be directed to the relevant Head of CCD.

In any subsequent contact, it is important that the purpose of such enquiries is made clear to the agency concerned in order to avoid disputes at a later date.

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