Disclosure Manual: Chapter 35 - International Disclosure Issues
International enquiries are a powerful and often crucial tool in the investigation and prosecution of offences.
In all international enquiries the prosecutor should consider international disclosure issues at the earliest stage as part of a strategy regarding material from overseas. More detailed instruction for prosecutors on the obtaining of evidence from abroad for use in a UK prosecution, including on mutual legal assistance, can be found in the 'International' pages of the CPS Operational guidance including country specific guidance.
It is important to note that the obligations under the CPIA Code to pursue all reasonable lines of inquiry applies to material overseas and that the approach to disclosure in the international context is consistent with the disclosure principles generally.
If the CPS has a Liaison Prosecutor for a specific country then the prosecutor should contact them as soon as possible to assist and provide guidance. In many countries any material provided or generated which is not provided as evidence may be given with an expectation of confidentiality by the overseas authority. Prosecutors should assess this material in accordance with the CPIA including whether this meets the test of being sensitive material. If such material falls to be disclosed prosecutors should consider the early communication of this decision to overseas authorities and its impact on them.
The disclosure obligations on the prosecutor in respect of material held overseas are considered in the the Attorney General’s Guidance on Disclosure 2022 ("International Enquiries") (see paragraphs 46 – 54). [Please note references to UK membership of the European Union and European Investigation Orders do not apply after 31st December 2020].
Third Party Material
The Attorney General’s Guidelines set out that the obligations under the CPIA Code to pursue all reasonable lines of inquiry apply to material held overseas. Where it appears that there is relevant material, the investigator or prosecutor must take reasonable steps to obtain it, either informally or by making use of the powers contained in the Crime (International Co-operation) Act 2003, any international conventions. Consideration should also be given to following the general principles and processes set out in the Joint Protocol on third party material.
There may be cases where a foreign state or court refuses to make the material available to the investigator or prosecutor. There may be other cases where the foreign state, though willing to show the material to investigators, will not allow the material to be copied or otherwise made available and the courts of the foreign state will not order its provision.
It is for these reasons that there is no absolute duty on the prosecutor to disclose relevant material held overseas by entities not subject to the jurisdiction of the courts in England and Wales. However, consideration should be given to whether some detail, such as the type of material believed to be held, can and should be provided to the defence.
The obligation on the investigator and prosecutor under the CPIA Code is to take reasonable steps. Where investigators are allowed to examine the files of a foreign state but are not allowed to take copies, take notes or list the documents held, there is no breach by the prosecution in its duty of disclosure by reason of its failure to obtain such material, provided reasonable steps have been taken to try and obtain it. Prosecutors have a margin of consideration as to what steps are appropriate in the particular case, but prosecutors must be alive to their duties and there may be some circumstances where these duties cannot be met. Whether or not a prosecutor has taken reasonable steps is for the court to determine in each case if the matter is raised.
Where it is apparent during the investigation that there may be relevant material held overseas then investigators and prosecutors should consider engaging with the defence at the pre-charge stage to ensure that all reasonable lines of inquiry are followed.
It is important that the position taken in relation to any material held overseas is clearly set out in the Disclosure Management Document (DMD) so that the court and the defence know what the position is.
The DMD must record and explain the situation and set out, insofar as permitted by the foreign state information about the material such as the nature and extent of the material held, where or by whom it is held and the basis for that belief. The DMD should explain the steps taken to obtain the material and what the results have been.
Unused material generated as part of international enquiries
Material generated in the process of carrying out overseas enquiries may itself be relevant unused material. The general principles and processes of disclosure should be applied to such material. In particular material should be retained, recorded, and reviewed.
Such material could arise through formal or informal enquiries such as: formal requests for material using International Letters of Request (“ILOR”); informal or formal police to police enquiries; the exchange of information by law enforcement on a bilateral basis or through international organisations; meetings or enquiries arranged through Eurojust, Europol or other international networks; enquiries through UK law enforcement officers based overseas; information provided through joint investigation teams; spontaneous exchange of evidence; enquiries made by a CPS Liaison Prosecutor.
The type of material that could be generated may include: ILORS and responses from overseas authorities; statements, reports and copies of exhibits not relied upon by the prosecution as evidence; conference or meeting notes; documents received from a foreign court or other body; copies of overseas court or police papers/file; formal letters in response; draft documents.
The disclosure officer should be made aware of this material and should apply the relevance test, the test for disclosure under the CPIA and consider whether the material is sensitive (or highly sensitive) and schedule accordingly. The prosecutor should satisfy themselves that all such material has been obtained and reviewed by the disclosure officer.
The guidance on sensitive material, applies equally to material obtained from overseas as it would to material from the UK. Sensitive material is any material the disclosure of which would give rise to a real risk of serious prejudice to an important public interest. This applies to both materials received from overseas and unused material generated as part of international enquiries.
The disclosure officer should identify whether material obtained from overseas is sensitive and the reason for that belief. The disclosure office should list sensitive material on the schedule of sensitive material. The disclosure officer must include a statement why the officer believes the material is sensitive. Examples of such material may include any of those listed in the CPIA Code of Practice paragraph 6.14.
- material received from the intelligence and security agencies;
- material relating to intelligence from foreign sources which reveals sensitive intelligence gathering methods;
- material given in confidence;
- material relating to the identity or activities of informants, or undercover police officers, or witnesses, or other persons supplying information to the police who may be in danger if their identities are revealed;
- material revealing the location of any premises or other place used for police surveillance, or the identity of any person allowing a police officer to use them for surveillance;
- material revealing, either directly or indirectly, techniques and methods relied upon by a police officer in the course of a criminal investigation, for example covert surveillance techniques, or other methods of detecting crime;
- material whose disclosure might facilitate the commission of other offences or hinder the prevention and detection of crime;
- material upon the strength of which search warrants were obtained;
- material containing details of persons taking part in identification procedures;
- material supplied to an investigator during a criminal investigation which has been generated by an official of a body concerned with the regulation or supervision of bodies corporate or of persons engaged in financial activities, or which has been generated by a person retained by such a body;
- material supplied to an investigator during a criminal investigation which relates to a child or young person and which has been generated by a local authority social services department, an Area Child Protection Committee or other party contacted by an investigator during the investigation; and
- material relating to the private life of a witness.
If the material satisfies the test of disclosure consideration should be given to whether material may be disclosed in a way that does not compromise the public interest in question including redaction, inspection, or admissions. The guidance in Chapter 13 applies for any applications for Public Interest Immunity or a hearing to inform the court of sensitive material under the CrimPR part 3.11
Disclosure officers should redact any sensitive information contained in material that is likely to satisfy the test for prosecution disclosure. This should include any personal, confidential information including person’s date of birth, address, email addresses and phone numbers.
The following are examples of areas in which issues of sensitivity may arise and will need to be considered: information in ILORs which may impact ongoing investigations in another country or reveal sensitive techniques or names of other persons not yet arrested or sources; notes from confidential meetings with international partners which were provided with an expectation of confidence; any material relating to Eurojust provided under their rules of confidentiality; material obtained from Joint Investigation Teams; direct communications from international prosecutors or law enforcement to Liaison Prosecutors or police counterparts; court reports released under judicial direction.
In addition, in relation to international material, Disclosure officers should be aware that overseas jurisdictions may have a different test or understanding of what may amount to ‘sensitive material’ beyond the CPIA definition. Also, material may have been provided with an explicit or implicit expectation that it is either in whole or in part confidential and non-disclosable. This may be based on any of the above listed reasons, but more importantly, it may be considered sensitive to the particular jurisdiction due to their individual domestic legal restrictions, practice, or differences in legal systems. Further information may be required from them to understand the reasons they consider the material is ‘sensitive’. The prosecutor will have to assess whether these are grounds satisfy the test for it to be considered sensitive material under the CPIA.
Disclosure of any relevant overseas material considered to be “sensitive” either in accordance with the CPIA 1996 and/or in the opinion the relevant foreign authorities, should not take place until full liaison has taken place by the disclosure officer and the prosecutor with the relevant CPS Liaison Prosecutor, law enforcement international networks or Eurojust, for assistance.
If there is a Liaison Prosecutor in the country they should be consulted by the prosecutor; alternatively in the event that there is no CPS Liaison prosecutor assigned to the country in question, the CPS International team should be contacted to provide assistance. It is good practice to prepare a joint strategy to approach such material in advance to enable a consultation in advance with overseas partners if material they consider ‘sensitive’ is likely to fall to be disclosed under the CPIA as a result of a decision of the prosecutor or the court. This may enable options to be considered which fully satisfy the duties under the CPIA whilst addressing concerns raised by international partners and maintaining international cooperation.