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Welcome to Retail Team
Investigator Training
Andy Morley & Danny Saunders
Senior Investigations Managers, Central
Investigations Unit
June 2023
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Investigator Training Day 7‘ June 2023 — Spire Meeting Room Chesterfield
0945-1000 Welcome, introductions and Scene Setting - Andy & Danny
1000-1200 Disclosure (including a 15 minute comfort break) - Andy
1200-1300 Lunch(Lunch provided)
1300 — 1345 Investigation Strategy - Danny
1345-1400 Comfort Break
1400-1445 Action and Decision Logs - Danny
1445-1500 Comfort Break
1500 — 1530 Continuity of Evidence — Andy
1530 — 1535 Comfort Break
1535- 1600 Launch of Investigator’s Manual - Andy & Danny
1600 — 1615 Q&A— Andy & Danny
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Disclosure in Civil and Criminal
Investigations
ES Andy Morley, Senior Investigations Manager, Central Investigations Unit
June 2023
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R v Liam Allen 2017
"Something has gone very, very wrong in the way this case was investigated and
brought to court" ............
"The CPS should be considering the matter at the very highest level........... there
is a risk not only of this happening again, but that trial process will not detect
what has gone wrong and there will be a very serious miscarriage of justice“
Judge Peter Gower
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Agenda
1.Why do we have
disclosure legislation
2.What happens when
disclosure goes wrong
3.Criminal Procedures
Investigations Act 1996
4.Civil Procedure Rules 1998
5.Break out exercise
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WAI
References for this session:
Criminal Procedure Investigations Act (CPIA) 1996 &
The CPIA Code of Practice
The Attorney General Disclosure Guidelines 2022
The Civil Procedure Rules 1998
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European Convention of Human Rights
Article 6 of the
European
Convention of
Human Rights
(ECHR)
guarantees in
member states
the right to ‘a
fair trial’.
‘Signatories to the European Convention on Human Rights 4" November 1950
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Under Article 6 of ECHR you have the right to:
1. Be presumed innocent until you are proven guilty
2. Be told as early as possible what you are accused of
3. Remain silent
4. Have enough time to prepare your case
5. Legal aid (funding) for a lawyer if you cannot afford one and this is needed for justice to be
served
6. Attend your trial
7. Access all the relevant information
8. Put forward your side of the case at trial
9. Question the main witnesses against you and call other witness, and
10. Have an interpreter, if you need one.
You have the right to:
7. Access all the relevant information
Disclosure is providing the defence with copies or access to allI
undermining the prosecution case and/or assisting the defence. Investigators,
prosecutors, defence teams and the courts all have important roles to play in ensuring
the disclosure process is done properly and promptly. crown Prosecution Service
Proper disclosure of unused material remains a crucial part of a fair trial and is essential
to avoiding miscarriages of justice. Disclosure remains one of the most important and
complex issues in the criminal justice system, and it is a priority for this Government to
encourage improvements in disclosure practice in order to ensure the disclosure regime
operates effectively, fairly and justly. The Rt. Hon. Suella Braverman QC MP -Attorney General
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What Happens when Disclosure is Poorly Managed?
M62 Coach Bombing
4 February 1974, ‘Idetonated a 25 pound bomb hidden inside
the luggage locker of a coach carrying off-duty British Soldiers and
their families. 9 Soldiers and 3 civilians killed.
1992 I “I released having served 17 years — Government
forensic scientist had deliberately withheld information from her
defence counsels which strongly indicated her innocence.
The actual perpetrator(s) were never arrested or convicted.
What Happens
when
Disclosure is
Poorly
Managed?
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21 November 1974: GRO :
charged for the bombings of 2 pubs
in central Birmingham — subsequently
convicted and sentence to life
imprisonment.
Convictions quashed in May 1991
due to lack of disclosure.
a ~ Iwere subsequently
charged with perjury and conspiracy
in connection with the investigation.
The real bombers have never been
prosecuted.
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What Happens when Disclosure is Poorly Managed?
‘charged with 6 counts of rape 6 counts of
. Sexual assault after woman claimed their relationship
was unhappy and abusive and she did not want sex.
Met only informed defence one week before trial
that complainant’s mobile phone had been
downloaded and only provided a copy of the disk the
night before the trial.
Disk contained messages that completely
undermined the prosecution case.
Resulted in the National Disclosure Improvement
Plan January 2018 issued by the CPS
AG published a review of disclosure process in
November 2018
AG Disclosure Guidelines 2022
BAG Ss Home sNews “sport 4S weather 15 iPlayer
Home I Cost of Living I War in Ukraine I Climate I UK I World I Business I Politics I Culture I Tech
England I Local News I Regions I London
Met Police apologise for GRO I
rape case errors
@ 30 January 2018
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‘Worst miscarriage of justice’: Post Office
scandal tore families apart, inquiry hears
14 February 2022, 16:02 I Updated: 14 February 2022, 16:07
By Patrick Grafton-Green
The Post Office scandal was "the worst miscarriage of justice in
recent British legal history", ruining lives and tearing families apart,
a top lawyer has said.
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“But I don’t conduct criminal investigations so
what has this got to do with me?”
Para 2.1 of the Code of Practice defines a criminal investigation as
follows:
I) Investigations into crimes that have been committed;
2) Investigations whose purpose is to ascertain whether a crime
has been committed;
3) Investigations which begin in the belief that a crime may be
committed.
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The s31 Civil Procedure Rules 1998
Meaning of disclosure
34.2 Aparty discloses a document by stating that the document exists or has existed.
Attorney General's Disclosure Guidelines
2022 Defines ‘Relevant Material’ as:
Material may be relevant to an investigation if it
appears to an investigator, or to the office in charge of
an investigation, or to the disclosure officer, that it has
some bearing on any offence under investigation or
any person being investigated, or on the surround
circumstances of the case, unless it is incapable of
having any impact on the case
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Para 2.1 of CPIA 1996 defines
‘material’ as:
Material of any kind, including information and
objects, which is obtained or inspected in the
course of an investigation and which may be
relevant to the investigation. This includes not
only material coming into the possession of the
investigator but also material generated by him.
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Syndicate Exercise
List items of ‘Relevant Material’ generated in
your investigations?
Give an example of something you might see
during an investigation that is ‘Not Relevant’.
Time allowed I5 minutes
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The Criminal Procedure and
Investigations Act (CPIA) 1996
Record all Relevant Material
Retain all Relevant Material
Reveal all Relevant Material
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Record all Relevant Material
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What Must be Recorded?
Para 4 Code of Practice
4.1- If material which may be relevant to the investigation consists of information which
is not recorded in any form, the office in charge of an investigation must ensure that it
is recorded in a durable or retrievable form (whether in writing, on video or audio
tape, or on computer disk).
4.2 -Where it is not practicable to retain the initial record of information because it
forms part of a larger record which is to be destroyed, its contents should be
transferred as a true record to a durable and more easily-stored form before that
happens.
4.3 -Negative information is often relevant to an investigation. If it may be relevant it
must be recorded. An example might be a number of people present in a particular
place at a particular time who state that they saw nothing unusual.
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(when complete)
Rv [URN I
FOR CPS USE:
* Enter_D = Disclose to defence:
item disclosable and defence may inspect
CND = Clearly not disclosable (by description)
ND = Document viewed and not disciosable
‘The Disclosure Oficer believes the folowing RELEVANT MATERIAL which does not form part ofthe prosecution case is NOT SENSITIVE. For further
detailed guidance refer tothe Disclosure Manual and Attomey General's Guidelines,
Record below MATERIAL of any kind, including information and objects, which is obtained in the
course of a criminal investigation and which may be relevant to the investigation; and
RELEVANCE fs that has some Dearing on any offence under investigation or any person being
investigated or on the surrounding circumstances of the case, unless itis incapable of having REASON FOR DECISION
any impact on the case. Do not speculate. If itis not considered relevant do not record it I canbe foundlocatd
on the schedule. Give a sufficiently detaieg DESCRIPTION of the relevant material for the
RESTRICTED (when complete)
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Relevant Sensitive Material
Sensitive material is material that, if disclosed, would
give rise to a real risk of serious prejudice to an
important public interest. Investigators must ensure
that all relevant unused sensitive material is retained,
reviewed and revealed to the prosecutor. Sensitive
material should be revealed to a prosecutor on a
separate schedule to the non-sensitive material.
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_ 2 i RESTRICTED (when complete) - Not Disclosable i i i
SCHEDULE OF RELEVANT SENSITIVE MATERIAL
Rv ts a
The Disclosure Officer believes that the following RELEVANT MATERIAL is SENSITIVE and if it were disclosed it would give rise to a real risk of serious prejudice to an
important public interest
Record below MATERIAL of any kind, including information and objects, which is obtained in the course of a criminal investigation and which may be relevant to the investigation; and
RELEVANCE is that it has some bearing on any offence under investigation or any person being investigated or on the surrounding circumstances of the case, unless itis incapable of
‘having any impact on the case. Do not speculate. If it is not considered relevant do not record it on the schedule. Give a sufficiently detailed DESCRIPTION of the relevant material
for the prosecutor to make a decision on whether or not it should be examined.
‘Check boi copy supplied fo CPS FOR CPS USE
‘The relevant material is: Reason for sensitivity ‘es? (PS decision
Name: Reviewing lawyer signature
Print name:
Date:
Signature
2oront I RESTRICTED (when complete) - Not Disclosable —— Paget oft
a oe ee ae Ane nnn
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Retain all Relevant Material
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Retention and Storing of Material
Para 5 Code of Practice
The duty to retain material includes in particular the duty to retain material falling into the following categories, where it may be
relevant to the investigation:
Crime reports (including crime report forms, relevant parts of incident report books or police officers’ notebooks);
Custody records;
Records which are derived from tapes of telephone messages (for example, 999 calls) containing descriptions of an alleged offence
or offender;
Final versions of witness statements (and draft versions where their content differs from the final version), including any exhibits
mentioned (unless these have been returned to their owner on the understanding that they will be produced in court if required);
Interview records (written records, or audio or video tapes, of interviews with actual or potential witnesses or suspects);
Communications between the police and experts such as forensic scientists, reports of work carried out by experts, and
schedules of scientific material prepared by the expert for the investigator, for the purposes of criminal proceedings;
Records of the first description of a suspect by each potential witness who purports to identify or describe the suspect, whether
or not the description differs from that of subsequent descriptions by that or other witnesses;
Any material casting doubt on the reliability of a witness
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Retain all Relevant Material - Reasonable Line of Enquiry
Reasonable Line of Inquiry
A reasonable line of inquiry is that which points either towards or away from
the suspect. What is reasonable will depend on the circumstances of the case
and consideration should be had of the prospect of obtaining relevant material,
and the perceived relevance of that material.
Record in the Decision and Act Log what lines of enquiry you have chosen and the reason why you have chosen to
follow that line of enquiry - JAPAN Statement
Record in the Decision and Act Log any lines of enquiry you have considered and decided not to pursue and the
rationale for not following the line of enquiry.
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Reveal all Relevant Material
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Disclosure Test
Material that might reasonably be considered
capable of undermining the case for the
prosecution against the accused, or of assisting
the case for the accused.
[_- RESTRICTED men comple Wot Biscloabie
DISCLOSURE OFFICER'S REPORT
Ry uw (TTT)
‘The folowing items are listed on the schedule(s) for this case and relate ta
Material which might reasonably be considered capable of undermining the case forthe prosecution agains the
‘accused, or of assisting the case for the accused
‘+ Material required to be supplied under paragraph 7.3 of te Code (see overleaf)
"Enter C of D to denote schedule MGBC or 6D and enter item no. from schedule
* Schedule I Ne" REASON
l
[— RESTRICTED (wen comsete nat iscosale, SMM ce
Certification in all cases :
To the best of my knowledge and belie, all material thats or may be relevant has been retained and made available
tome. thas been inspected, viewed or Iistened to and revealed to the prosecutor in accordance with the Criminal
Procedure and investigations Act 1996 as amended, Code of Practice andthe Atiomey Genera's Guidelines.
‘Signature of Disclosure Officer:
Name: Date:
‘have reviewed ai ofthe relevant material, OR I have considered the defence statement and futher reviewed al the relevant
‘material (delete as applicable) that has been retained and made avaiable o me ard there is nothing to thebestof my krowledge
‘ac bale that might reasonably be considered capable of ring the prosecution case against the accused or te
case fr the accused.
‘Signature of Disclosure Officer...
igs ea RESTRICTED (when complete) - Not Disclosable oe
CRIMINAL PROCEDURE AND INVESTIGATIONS ACT 1996 (S.23(1)) CODE OF
PRACTICE
‘velation of material tothe prosecutor
S007. states:
‘At the same time as complying wih the dutes in parsgraphs 7.1 and 7.2, the disclosure
cffcer must give the prosecutor 3 copy of any material which fals into the folowing
categories (unless such material has aleady been given tothe prosecutor as pat ofthe fle
containing the materal forte prosecuton case)
+ information provided by an accused person which indicates
‘an explanation for the offence with which he has been
charges;
+ any material castig doubt on the relabilty of a confession;
= _ any material casting doubt onthe relabity ofa prosecution
wanes;
‘any other materal which the investigator beleves may fal
within the test for prosecution disclosure in the Act
Tn aa RESTRICTED (when complete) ~ Not Disclosable eo
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Retention and Storing of Material
All material
H
F 1
Unused Material
j
Li
n
Relevant
1
Non relevant
sensitive Sensitive
material material
3 oO
Meets
disclosure test
Does not meet
disclosure test
Meets
disclosure test
Does not meet
disclosure test
Schedule of non-
sensitive material
provided to the
defence.
Material provided to
the defence or made
available for
inspection.
Schedule of non-
sensitive material
provided to the
defence.
Appears on schedule
of sensitive material
provided to the
prosecutor only.
Appears on schedule
of sensitive material
provided to the
prosecutor only.
No further action, but
keep under review.
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The s31 Civil Procedure Rules
Meaning of disclosure
31.2 Aparty discloses a document by stating that the document exists or has existed,
Standard disclosure—what documents are to be disclosed
31.6 Standard disclosure requires a party to disclose only—
(a) the documents on which he relies; and
(b) the documents which—
(i) adversely affect his own case;
(ii) adversely affect another party's case; or
(iii) support another party's case; and
(c) the documents which he is required to disclose by a relevant practice direction.
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The s31 Civil Procedure Rules 1998
315
(1) In all claims to which rule 31.5(2) does not apply —
(a) an order to give disclosure is an order to give standard disclosure unless the court directs
otherwise:
(b) the court may dispense with or limit standard disclosure; and
(c) the parties may agree in writing to dispense with or to limit standard disclosure.
(2) Unless the court otherwise orders, paragraphs (3) to (8) apply to all multi-track claims,
other than those which include a claim for personal injuries.
(3) Not less than 14 days before the first case management conference each party must file
and serve a report verified by a statement of truth, which —
(a) describes briefly what documents exist or may exist that are or may be relevant to the
matters in issue in the case;
(b) describes where and with whom those documents are or may be located.
(c) in the case of electronic documents, describes how those documents are stored;
(d) estimates the broad range of costs that could be involved in giving standard disclosure in
the case, including the costs of searching for and disclosing any electronically stored
documents; and
(e) states which of the directions under paragraphs (7) or (8) are to be sought
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Summary
1. Why do we have disclosure legislation
2. What happens when disclosure goes wrong
3. Criminal Procedures Investigations Act 1996
4. Civil Procedure Rules
5. Break out exercise
Any Questions