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Protocol between the Police Service and the Crown Prosecution Service on dealing with Third Party Material (2023)




1.1 This Joint Protocol between the Crown Prosecution Service (CPS) and the Police draws together the existing guidance and best practice on identifying, inspecting, reviewing, and obtaining third party material. It sets out the cooperation arrangements between the Parties in respect of the investigation, the institution and the prosecution of offences in which there is third party material and the relevant duties and functions of the investigator, the disclosure officer and the prosecutor.

1.2 This protocol applies in respect of requests for third party material relating to victims, witnesses, and suspects.

1.3 In order to meet the aims and objectives of this protocol, the signatories to this protocol commit to the mandatory use of the NPCC form attached when requesting third party material in relation to which a person or persons may have an expectation of privacy.

Aims and objectives

2.1 The objectives of this protocol are:

  • To reflect national Police policy in identifying and seeking access to relevant third-party material as early as possible in the investigation.
  • To provide a streamlined and standardised process in contacting third parties and specifying any condition sought on the treatment, storage, or return of the material; and
  • To achieve improved and consistent performance in inspecting third party material and determining whether any or all of the material should be retained, recorded and, in due course, disclosed to the defendant.

Identifying third party material

3.1 Duties of disclosure under the Criminal Procedure and Investigations Act 1996 (CPIA) and the Code of Practice issued pursuant to CPIA are imposed upon two categories of persons only: the investigator and the prosecutor. All other categories of persons are to be treated as third parties, rather than as belonging to the prosecution team.

3.2 Third parties frequently encountered in a criminal investigation will include:

  • owners of CCTV material;
  • social services departments;
  • schools;
  • medical practitioners;
  • counsellors;
  • mobile telephone providers;
  • social media companies; and
  • internet providers.

3.3 Requests for access to third party material should never occur as a matter of course and it should never be assumed that because of the nature of an offence that is being investigated that particular types of material will need to be accessed. Whether personal records should be requested or not will depend on the circumstances of the individual case.

3.4 The CPIA Code of Practice requires the investigator to follow all reasonable lines of enquiry, whether these point towards or away from the suspect. The Attorney General’s Guidelines on Disclosure 2022 make clear that third party material should only be requested in an individual case if it has been identified as relevant to an issue in the case.

3.5 There will be cases where no investigation of third-party material is necessary at all, and others where detailed scrutiny is needed. There must be a properly identifiable foundation for the inquiry, not mere conjecture, or speculation. There is also a need to balance the probative value of the material with the intrusion of obtaining it. Requests must always be proportionate, whilst recognising the absolute right to a fair trial.

3.6 A third party has no obligation under the CPIA to reveal material to the investigator or to the prosecutor, nor is there any duty on the third party to retain material which may be relevant to the investigation. In some circumstances, the third party may not be aware of the investigation or prosecution.

3.7 If the investigator or the disclosure officer believes that a third party holds material relevant to an issue in the case, that person or body should be told of the investigation and alerted to the need to preserve relevant material.

3.8 The third party should be contacted and requested to confirm the existence of any material they hold. A written record of any decision to access third party material must be made in compliance with CPIA and the Attorney General’s Guidelines on Disclosure 2022.

3.9 In instances where there would be an expectation of privacy surrounding the third-party material, the following national template documents should be used:

  • Interim NPCC TPM Request Form
  • Interim NPCC TPM Request Form - FAQs for Individuals
  • Interim NPCC TPM Request Form - FAQs for Officers

Completion of these forms is not required for instances where there is no expectation of privacy attached to the material, for example CCTV requests for public areas where persons are notified that CCTV is being recorded.

3.7 A record must be kept of all material sought from third parties and the status of the inspection of such material. The Investigation Management Document should be used for this purpose.

3.8 The NPCC TPM Request Form is likely to meet the test for relevance and fall to be scheduled as relevant unused material. The disclosure officers should consider whether any of the contents are sensitive or consist in part of personal data not relevant to the case. In making this decision, the handling instructions section of the NPCC TPM Request Form should be carefully considered. The investigator should discuss with the third party whether there are any sensitivities attached to the material that might influence whether it is used as evidence, or otherwise disclosed to the defence, or whether there may be public interest reasons that justify withholding disclosure. The third party's view must be passed to the prosecutor.

3.9 Prosecutors are reminded of the need to provide guidance and support to police in identifying third party material. The prosecutor should consider whether it is appropriate to advise the police to seek access to further material as part of their duties to explore all reasonable lines of enquiry, whether these point towards or away from the suspect. Where possible, there should be early engagement with the defence in identifying lines of enquiry to be pursued and any third-party material relevant to an issue in the case.

View of the subject of the material and of the third party

4.1 The lawful basis for obtaining the records is the legal duty an investigator has under CPIA and the Code of Practice issued pursuant to it to pursue all reasonable lines of enquiry, whether these point towards or away from a suspect, and may extend to material in the hands of a third party.

4.2 Once in possession of records, police will process the personal material in accordance with Part 3 Law Enforcement Processing of the Data Protection Act 2018 which allows for processing of personal material when it is necessary for a law enforcement purpose.

4.3 When seeking views on such a request, the Police will make clear to the complainant or witness the relevant parameters of the material being sought, the reasons for the request and how this is strictly necessary and proportionate, and the use to which the records may be put, making it clear that they may be disclosed to the defence. The response by the complainant or witness should be recorded on the TPM Request Form and passed to the prosecutor using the Investigation Management Document and/or the MG6 schedules.

4.4 Where the third party in question refuses to allow inspection of the material or requires the prosecution to obtain an order before handing over copies, this must be communicated via the Investigation Management Document and the prosecutor will consider whether it is appropriate to obtain a witness summons using section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 or section 97 of the Magistrates’ Court Act 1980. Part 28 of the Criminal Procedure Rules and paragraphs 3.5 and 3.6 of the Code of Practice should be followed.

4.5 A separate protocol will address the exchange of information and material between criminal and family agencies and jurisdictions.

Reviewing third party material

5.1 Where it is apparent to an investigator that a third party has material that may be relevant to an issue in a case, all reasonable steps should be taken to identify and consider such material. There will be occasions where the third party permits inspection of such material but will not allow the police to retain copies. In those circumstances the Investigation Management Document should be used. The officer should describe all of the relevant material which has been inspected. Where upon inspection material is not considered to be relevant because it is incapable of having any bearing on the issues in the case, a brief explanation should be noted on the IMD.

5.2 Where the third party allows the police to take possession of the relevant material, it must be appropriately described by the disclosure officer on the schedule of unused material.

5.3 A charging decision should only be sought when all outstanding reasonable lines of inquiry have been pursued, unless the further evidence or material is unlikely to affect the decision (whether in favour of or against a prosecution). It is important that the prosecutor is made aware at the point of charge, what reasonable lines of enquiry have and have not been undertaken in relation to the case. Where third parties have been identified as potentially holding relevant material it should be made clear why this is unlikely to affect the decision. This information should be included on the Investigation Management Document. Where officers have identified third party material but have made the decision that this is unlikely to contain relevant material, they should explain their reasoning on the IMD. This is in order that the prosecutor may fully explain the parameters of reasonable lines of enquiry conducted by the police and set that out in a Disclosure Management Document, to assist all parties to the criminal proceedings.

Further guidance in respect of third-party material can be found in:

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