Memorandum of Understanding between Immigration Enforcement (IE) and the Crown Prosecution Service (CPS)
This Memorandum of Understanding (MOU) between Immigration Enforcement (IE) and the Crown Prosecution Service (CPS) reflects the Home Office policy on investigating immigration crime within the remit of Immigration Enforcement, and CPS policy in respect of the prosecution of offences and recovery of assets. It describes the cooperation 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.
The aim of this MOU is to ensure that Government and departmental objectives are met with regard to effective law enforcement in relation to immigration offences; pursuing through criminal investigation and prosecution, where appropriate, those who are alleged to have committed immigration crime. Additionally this MOU seeks to ensure that criminals do not benefit from the proceeds of immigration crime by ensuring the appropriate use of restraint and confiscation proceedings.
In discharging their responsibilities under this MOU, IE and the CPS will bear in mind the need to investigate and prosecute cases as efficiently, effectively and expeditiously as possible thereby ensuring the best use of public funds, whilst always acting in a manner designed to achieve the overriding objective that criminal cases be dealt with justly.
When making decisions in these cases IE and the CPS will always operate in accordance with the relevant legislation, as well as any applicable 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 IE cases.
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 IE Casework, namely:
- A clear understanding of the Parties’ respective roles, responsibilities and procedures;
- A framework for formal liaison and cooperation at all levels;
- A commitment to working collaboratively to investigate and prosecute IE cases effectively and to a high standard, always operating in accordance with the relevant legislation as well as any applicable case law;
- Effective and efficient communication, including full and timely exchange of information and
- Supporting each other to improve skills and knowledge.
The Parties to this MOU are:
- Immigration Enforcement (IE)
- The Crown Prosecution Service (CPS)
For the purpose of this MOU, IE Casework means cases referred to the CPS by IE for advice on investigation, for a charging decision and for the conduct of any proceedings.
For the purposes of this MOU,
(a) IE is 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 case papers to the CPS;
- The quality of IE investigations;
- Ensure file quality submitted in accordance with the National File Standard and
- Identifying those IE cases where administrative removal would be more appropriate than prosecution.
(b) CPS is responsible for:
- The provision of appropriate advice in relation to criminal investigations conducted by IE and any proceedings instituted in respect of such 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 by IE;
- 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.
The respective roles and responsibilities of the CPS and IE are set out in Annex A.
6. Monitoring the MOU
The arrangements in respect of the specific discharge of IE and CPS duties in relation to the disclosure of unused material in criminal cases are set out in Annex A.
A Joint Immigration Casework Liaison Group (JICLiG) comprising senior representatives from IE, CPS Immigration Lead, Home Office Legal Advisors Branch, CPS Strategy and Policy Directorate, CPS Direct, CPS Organised Crime Division, 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. A full list of members will be set out in Annex B.
The IE Director of Criminal & Financial Investigation 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.
Areas will be responsible for identifying high profile/sensitive cases and inform the JICLiG and the Secretariat will maintain a list of cases.
The JICLiG will also identify any training needs arising from lessons learned and task accordingly.
IE will provide the JICLiG with case data as generated by CIDRE
A 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 IE/CPS, and shared via the JICLiG.
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.
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.
The CPS will provide briefings on specific cases on reasonable notice, as requested by IE. In all cases the CPS will try to meet IE reasonable timescales and, where briefings are required urgently, will supply the information as quickly as possible in all the circumstances.
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. Where the Officer in the case of an investigation is concerned with either the advice received or with the management of the prosecution, the concern should be referred through the Senior Investigating Officer (SIO) to the prosecutor’s manager. If further escalation is required, the matter may be referred by an HMI to the appropriate Deputy Head of Division or Deputy Chief Crown Prosecutor. If this is not resolved, the matter may be referred by an Assistant Director or above to the appropriate Head of Division or Chief Crown Prosecutor. Similarly, where the prosecutor is concerned with any aspect of the management of the investigation, similar levels of referral will apply and the concern should be referred to the SIO. If further escalation is required the matter may be referred by a Unit Head or Team Leader to the relevant Assistant Director. Any escalations shall be dealt with expeditiously.
8. Casework Management
IE Casework will be handled by prosecutors based in CPS Areas, Complex Casework Units (CCUs) and the CPS Central Casework Divisions (CCDs) in accordance with CPS case referral criteria.
IE will notify the CPS of all major investigations, which are in its view likely to require early investigative advice.
IE 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.
9. Charging Decisions/Instituting proceedings
Section 3(2)aa of the Prosecution of Offences Act 1986 grants the Director of Public Prosecutions functions 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 [See also SI 2013 No 1542 The Police and Criminal Evidence Act 1984 (Application to immigration officers and designated customs officials in England and Wales) Order 2013]. 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.
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.
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.
Charging decisions made by the CPS following IE criminal investigations will be communicated to IE where the request for advice is submitted to the CPS by an IE officer. IE will be responsible for communicating the full decision to the police custody officer.
IE recognises that the decision to terminate criminal proceedings rests solely with the CPS. Wherever possible however, the CPS will consult with IE and the investigator in the case before such decisions are made, and will explain its decisions when charges are dropped or added or it accepts a plea to a lesser offence. The Parties will comply fully with all of their obligations under the Victims' Code and all CPS policies in respect of witnesses and victims.
When IE refers a case to the CPS for pre-charge advice all the necessary information will be provided to the CPS within a reasonable period (being at least 20 days) before the expiry of any time limit for the instigation of proceedings. In complex cases IE will consult the CPS when consideration is being given to the commencement of an investigation.
In complex cases where Early Investigative Advice is required, consideration should be given to whether a Joint Investigative and/or Disclosure Strategy would be helpful.
In complex cases (level 2 and 3) the mandatory CPS Disclosure Package will be utilised.
In all cases where the Secretary of State for the Home Department may be asked to issue a PII certificate, these must be notified to the reviewing lawyer at the earliest opportunity. The matter will be dealt with in accordance with HO and CPS policy, by a lawyer sufficiently vetted to deal with a case of this type.
In appropriate cases, administrative removal may mean that a prosecution would not be in the public interest. The following factors would be relevant when making this decision:
- A likely sentence of less than 12 months' imprisonment;
- The level of harm to and the views of the victim;
- Previous convictions of a suspect (either UK or foreign convictions);
- A potentially substantial confiscation order and the likelihood of timely enforcement;
- A suspect who may be willing to assist in the investigation or prosecution of others (in accordance with the Serious Organised Crime & Police Act 2005 (SOCPA)), who would need to remain in the UK for this purpose and
- Application of the Code for Crown Prosecutors.
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 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 2013 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.
When considering administrative removal or a conditional caution as an alternative to prosecution, the Crown Prosecutor will have regard to the fact that there is a substantial cost to the public when a foreign national offender who needs to be managed in the community or kept in immigration detention, remains in the UK.
IE shall notify the CPS as soon as possible where substantial prosecution resources are likely to be required, whether in relation to a specific case, a series of cases or otherwise.
IE 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.
IE 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.
IE will pay all investigation costs and CPS will pay all prosecution costs. IE 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.
Both 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.
The Parties recognise the importance of early and regular consultation to facilitate the efficient management of investigation and prosecution resources.
IE 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 IE casework.
The Parties will support each other’s training initiatives and will endeavour to undertake this training jointly whenever possible.
12. Exchange of Information
All exchanges of management information between the Parties will be dealt with in accordance with the law.
IE will provide the CPS with management information on the volumes and types of cases being investigated by it in order to assist the CPS with its forward planning and resourcing.
13. Digital Working
IE and CPS are both committed to working digitally where they are able. As soon as IE has the digital capability there will be discussions with the CPS to enable cases to be shared digitally.
14. Archiving and file retention and retrieval
Archiving, retention and retrieval of prosecution files will be carried out in accordance with CPS policy and procedure.
15. Ministerial or Parliamentary Correspondence
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 Party to seek relevant contributions and clear lines that relate to the work of the other Party before a reply is sent. Contact will be via the HO Parliamentary Team, and the CPS Parliamentary and Complaints Unit within two working days of receipt. Generally, whilst the HO, 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.
The Home Secretary and Immigration Minister’s Private Offices and the Attorney General’s Office will be engaged as appropriate.
IE will reply to Ministerial or Parliamentary correspondence within the time limits set by the Cabinet Office.
The CPS will reply to Ministerial or Parliamentary correspondence within the time limits set by the CPS in its Briefing for Parliament Guide.
If one of the Parties receives Ministerial or Parliamentary correspondence which is more appropriately handled by being transferred to the other Party, they will arrange for it to be passed on to the other 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.
16. Parliamentary Questions
CPS will liaise with IE and the Attorney General’s Office as appropriate.
The HO, the CPS and the Attorney General’s Office will decide jointly whether HO Ministers or the Law Officers are in the best position to answer particular Parliamentary Questions where responsibility is not immediately clear. The HO and the CPS will draft answers or contributions to Parliamentary Questions in accordance the deadlines set by the AGO, the HO or the CPS as appropriate and, where necessary, after discussion with each other.
If comment is to be made in an answer to a Parliamentary Question that touches upon the work of the other Party then the draft answer will be cleared with that Party.
17. Complaints against the IE and the CPS
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.
The CPS will handle complaints and feedback in relation to their published policy.
For the purposes of this MOU, IE defines a complaint as a statement (whether oral, written or electronic) any expressing dissatisfaction about the exercise of functions by IE and /or about the professional conduct of IE staff including contractors.
Subject to the work of external scrutiny bodies, IE will handle complaints and feedback in relation to IE.
Wherever, in the opinion of the Parties, a complaint or any feedback requires joint handling, they will consult the appropriate participant/s before replying.
If one of the Parties receives a complaint or feedback intended for the other Party, they will pass it to the other(s) within one working day. If a Party is asked to accept the transfer of a complaint, they should formally accept/decline within two working days of the request for transfer.
18. Press handling
The communications teams within the CPS and IE will work together as appropriate, reflecting the organisations’ separate roles.
19. Requests for information from the public
If either of the Parties receives a request under the Freedom of Information Act 2000 (FOIA), or the Data Protection Act 1998 (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.
For the CPS, requests for information under FOIA and Subject Access Requests (SAR) under DPA are dealt with by a central unit based at CPS HQ.
An up to date list of contact details for the relevant staff under this MOU will be retained by the Parties.
This MOU may be modified by agreement in writing between the Parties.
For Immigration Enforcement, Mandie Campbell, Director General of Immigration Enforcement (Date: 04/05/16)
For the Crown Prosecution Service, Alison Saunders, Director of Public Prosecutions (Date: 09/05/16)
ANNEX A: ROLES AND RESPONSIBILITIES
1. General roles and responsibilities
1.1. Decide which cases fall within criminal investigation policy and shall consider each case in relation to the IE 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.
1.5. 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.
1.6. 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).
1.7. Appoint, when appropriate, a Financial Investigator (FI).
1.8. Provide support to the CPS through the case team.
1.9. 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.
1.10. Notify the CPS where they are contacted directly by the defence and shall convey the content of that contact.
1.11. Notify the CPS where they are contacted directly by another agency or third party who have an interest in the matter.
1.12. Involve the CPS at the earliest available opportunity when:
- Consideration is to be given to the involvement of other Government Departments (e.g. NCA, Department for Work and Pensions).
- 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.
1.13. 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.
1.14. 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 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.
1.15. Agree with the prosecutor which members of the case team need to attend at court hearings and IE shall ensure that attendance.
1.16. The FI shall attend all case conferences and court hearings where appropriate.
1.17. Ensure that all relevant material, (evidence/unused) is available and accessible when relevant for court hearings.
1.18. 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 shall then ensure that updated antecedents are provided to the CPS prior to trial/sentencing whichever is relevant.
1.19. 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.
1.20. 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.
1.21. 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.
1.22. 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.
1.23. 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:
1.24. Open a Prosecution Strategy Document (PSD) in appropriate cases as soon as a case is referred by IE for allocation.
1.25. 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.
1.26. Review all of the evidence and unused material.
1.27. 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 of any changes as soon as they are determined.
1.28. Review all papers provided by IE 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.
1.29. 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 of the circumstances of the delay. The CPS shall ensure LOR material received can be used for confiscation purposes when appropriate.
1.30. Advise upon, and issue, any extradition proceedings.
1.31. 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.
1.32. Draft all necessary applications for service upon the court.
1.33. Prepare and serve jury bundles on all parties in appropriate cases.
1.34. Manage all court directed and statutory timetables, which shall include, when necessary, seeking an extension of time from the court to ensure the same.
1.35. Immediately notify IE where it is contacted by the defendant or the defence team with regard to the offer of any assistance by the defendant to IE.
1.36. Exercise any relevant powers under Part 2 of the Serious Organised Crime and Police Act 2005.
1.37. 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.
1.38. 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.
1.39. Apply, where appropriate, for any other relevant ancillary orders against the defendant(s).
2. Joint roles and responsibilities
IE 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 IE have 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. HO Circular 2 of 2006 should be followed.
- 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/EAWs 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 possible need for other ancillary orders, including consideration given to alternatives to prosecution in respect of any suspects in respect of whom a decision is made not to prosecute.
- The potential need to apply for special measures or consider the use of SOCPA powers.
- The potential for use of Electronic Presentation of Evidence.
2.7. Agree what direct contact between IE 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. IE 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. IE shall provide a Case Notification Form to the CPS in cases where it is considered that pre-arrest advice is required. IE shall specify the advice sought and, when that advice is time critical, will specifically draw attention to that fact.
3.2. IE 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. IE 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 shall usually be given in writing. When advice is required urgently it can be given orally, but written confirmation of it shall 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. IE shall request charging decisions from the CPS using an MG3 form. The CDR shall outline the circumstances of the suspected offences and will highlight strengths and weaknesses of the case.
4.2. IE shall reveal to the CPS any identified weaknesses within the prosecution case/evidence and or any potential problems identified with regard to disclosure. Thereafter IE shall keep the CPS 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 from IE for charging advice, submitted on the MG3, the CPS prosecutors shall provide their decisions in writing, on the second part of the MG3 form. This provides IE 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. CPS shall, where necessary, consult with IE with regard to Public Interest and sensitive case issues.
4.5. Should IE seek an immediate charging decision 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 hour’s 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 OIC shall draft the Advanced Information (AI) for the first hearing, which shall usually comprise a summary of the case and will also include a précis of all taped 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 IE have not served the AI on the defence, (i.e. usually in a custody case where the first hearing follows out of hour’s advice to charge the same) IE shall serve the AI 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 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; details of any history of failing to comply with bail, including details of any aggravating features. IE should also supply when possible, details of factors that might support admission to bail. This will enable an informed decision to be made with regard to 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. 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 both parties, each to notify the other, 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 both parties each to notify the other within 24 hours of the outcome of any bail hearings.
6. Roles and Responsibilities following the decision to commence criminal proceedings
IE Criminal Investigation 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 procedures 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:
a) Counsel from the appropriate CPS approved Advocate Panel; or
b) 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 shall ensure that the CPS have 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 taped record of interview and a copy of the actual taped record, or a full transcript of the taped record/s of interview.
- 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 A4 paper and that the copies are sufficiently clear for their contents to be read and understood.
- All IE witness statements have been checked by the SIO.
- That where exhibits are smaller than A4, they shall be copied onto a blank piece of A4 paper.
- That statements are presented in chronological order so that the facts of the offence are presented sequentially.
- That no staples or plastic wallets are included.
- 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
8.1. Warn all witnesses of possible requirement to attend at any trial and shall 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 Police National Computer (PNC) prior to the first hearing. IE shall then ensure that updated antecedents are provided to the CPS prior to trial/sentencing, whichever is relevant.
8.3. Identify those witnesses who may require special measures in accordance with the Youth Justice and Criminal Evidence Act 1999. IE and 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.
8.4. Facilitate the appearance and subsequent treatment of witnesses (departmental / non-departmental and sensitive).
8.5. Ensure all witnesses have access to witness statements.
8.6. Inform witnesses of the outcome of proceedings.
The CPS shall:
8.7. Ensure that the victim or witness is able to give the ‘best evidence’ before the 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.
9. Roles and responsibilities as regards disclosure
IE and CPS, jointly, shall:
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 IE owes a duty of care to any individual
- the likelihood of possible joint operations with other investigating agencies and prosecution authorities
9.1. Appoint a disclosure officer in each case who has received appropriate training for the role.
9.2. Formulate a disclosure plan in each case in line with Home Office guidance
9.3. 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.
9.4. Identify all material held by IE and all other relevant agencies which is relevant to the case. Ensure that this material is revealed to the prosecutor on the MG6 forms.
9.5. Maintain a Log of Events in each case.
9.6. Include reference on the unused material schedule where witnesses have undertaken HO Interviews and describe the relevant material arising.
9.7. Ensure that disclosure schedules are up to date and unused material is stored in accordance with CPIA. The DO shall complete a disclosure officer’s report in all cases.
9.8. Regularly update the prosecutor on the status of their disclosure plan, the schedules of unused material and the Disclosure Officer’s reports.
9.9. 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.
9.10. Advise the CPS on any additions/amendments to the disclosure report/schedule.
9.11. Attend any PII Hearings and shall supply all relevant paperwork for the same.
9.12. 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 records management policy.
The CPS shall:
9.13. Check and thereafter serve all schedules of unused material that the DO prepares.
9.14. With regard to the schedules, check all listed items 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.
9.15. 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.
9.16. Serve 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.
9.17. 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 try and obtain a court direction causing the service of the same.
9.18. When a defence statement is served, ensure that a copy is forwarded to the DO straight away. 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.
9.19. The CPS shall challenge inadequate defence statements including when necessary having the case listed for mention to try and obtain a court direction causing material improvement.
9.20. The CPS shall notify IE immediately where any general request is received from the defence which requires IE action.
9.21. 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.
9.22. Advise in respect of, and prepare court papers for, any PII applications that need to be made, either ex parte or on notice.
9.23. 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 IE owes a duty of care 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 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.
10.3. The CPS may require assistance from IE 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 European Convictions.
11. Roles and responsibilities as regards confiscation
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 s.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 s.16 statement from IE, 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 do 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 3rd party or matrimonial claims.
12. Roles and responsibilities as regards warrants
12.1. IE 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 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 will keep each other appraised of the progress with the application, in particular to confirm when the warrant was withdrawn.
12.4. IE 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 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 shall update the Police National Computer with all changes of circumstances regarding warrants.
13. Roles and responsibilities as regards appeals
13.1. The CPS shall notify IE 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 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. IE and the CPS shall always consider whether to hold a “lessons learnt” conference so as to enable matters of best practice or methods used in dealing with novel and complex issues to be disseminated between both 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). 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 the CPS or IE or any individual employee or there was a wasted costs order made against the prosecution.
14.3. IE shall not accept any material that has been provided to the jury when collecting papers at the conclusion of a Crown Court Case.
14.4. IE 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.