Criminal Investigation
CPIA Code of Practice
An investigation conducted by police officers with a view to ascertaining whether
*A person should be charged with an offence
*A person charged with an offence is guilty of it.
This includes:
*Investigations into crimes which have been committed
*Investigations whose purpose is to ascertain whether crimes have been committed with a view to the possible institution of criminal proceedings
*Investigations that begin in the belief that a crime may be committed in the future.
General responsibilities
The Chief Officer is responsible for putting arrangements in place to ensure that in every investigation the identity of both the OIC and the Disclosure Officer is recorded.
Conducting criminal investigations
The extent of the investigation should be proportionate to the seriousness of the matter.
R (on the application of Ebrahim) v Feltham Mags Court 2001
1 WLR 1293
Failure to conduct an investigation adequately may result in a miscarriage of justice. (R v Poole 2003)
Relevant Material
CPIA Code of Practice
Material of any kind - including information and objects - which is either obtained or inspected in the course of a criminal investigation, which may be relevant to the investigation.
Categories of Relevant Material
(1) STRENGTHENING
Information which implicates the suspect and strengthens the prosecution case. Material that points towards the suspect’s involvement in the offence.
(2) UNDERMINING
Information which undermines or weakens the prosecution case.
Material which raises questions as to the reliability of prosecution evidence or credibility of prosecution witnesses.
(3) ASSISTING
Information which strengthens or assists the defence case.
Material which points away from the suspect’s involvement in the offence; casts doubt on the suspect’s guild, or implicates another person.
Sensitive Material
Material which the Disclosure Officer believes would give rise to a real risk of serious prejudice to an important public interest, were it to be disclosed.
Recording of unused material
If relevant material consists of information that is not recorded in any form, the OIC must ensure that it is recorded in a DURABLE or RETRIEVABLE form.
Retention of unused material
The OIC must retain material obtained in a criminal investigation which may be relevant to the investigation. If the OIC becomes aware of material that was previously examined but not retained because it was not considered relevant, which may now be relevant to the investigation, they should wherever practicable take steps to either:
(1) Obtain the material
(2) Ensure that the material is retained for further inspection or production in court if required.
Retention of unused material
Post-Conviction
All relevant material must be retained until the latter of either:
(1) The release of the convicted person from prison or (hospital order)
(2) Six months from the date of conviction.
If an appeal against the conviction is in progress at the relevant time, then all material must be retained until the appeal is determined.
Similarly, if the Criminal Case Review Commission is considering an application at that point in time, all material which may be relevant must be retained at least until the Commission decides not to refer the case to the Court.
Duties in respect of unused material
All relevant material gathered during the course of a criminal investigation shall be both RECORDED and RETAINED.
Following the provision of advance information of the prosecution case after charge, unused material shall be continually reviewed on an ongoing basis.
Ongoing Disclosure Duty
The prosecution has a continuing duty to review all relevant unused material and disclose to the defence anything which either:
*Undermines the prosecution case
*Assists the defence case
This ongoing obligation continues until the point of either:
Conviction / acquittal / discontinuance of proceedings
Irrespective of whether the a defence case statement has been submitted.
The disclosure obligations apply to all cases other than those where the defendant has pleaded guilty at the Mags Court; following which the prosecutor is not obliged to disclose any material to the defence thereafter.
Revelation of material to the prosecutor
(1) Cases charged on FCT with anticipated NG plea:
Schedules of unused material should be supplied:
*For police charged cases - at the point of charge
*For CPS charged cases - prior to charge
(2) In all other cases the schedules should be supplied ASAP after a NG plea has been either indicated or entered.
Revelation of material to the prosecutor
When supplying schedules of unused material the disclosure officer must:
(a) Draw the prosecutor’s attention to any relevant material which may satisfy the test for disclosure
(b) Explain their reasons for coming to that view
(c) Provide a copy of the material
(d) Provide any information provided by the accused which provides an explanation for the offence for which they have been charged.
(e) Provide any material casting doubt on the reliability of either
*A confession
*Any prosecution witness
Subsequent action by disclosure officer
At the time that the schedules are prepared:
*The disclosure officer may not know exactly what material will form the case against the accused
*The prosecutor may not have given advice about the likely relevance of particular items of unused material.
Once these matters are determined, the disclosure officer must (where necessary) supply an amended schedule listing any material which may be relevant to the investigation, does not form part of the case against the accused, is not already listed on the schedule, and is not sensitive. Unless they are informed by the prosecutor in writing that the prosecutor is already aware of the material and intends to disclose it to the defence.
Advance Information
(Material to be USED in the prosecution case)
Material that the defence are entitled to have in order to decide whether to plead either guilty or not guilty.
As the legal burden of proof rests upon the prosecution
The key question is not whether the defendant committed the crime
But whether the prosecution is able to prove
The commission of the offence.
Consequently the defence are entitled to know
The strength of the case in advance information
Before they agree to plead or decide on the mode of trial.
It is in the public interest that guilty please are entered ASAP
And for this to be achieved, advance information must be provided to enable the suspect to make this decision.
(Case Law).
Advance Information in the Magistrates Court
Criminal Procedure Rules 2020
The prosecutor must supply both the court and the defendant ASAP
Or no later that the beginning of the day of the first hearing:
(1) If immediately before the first hearing the defendant was in police custody
For the offence charged:
(a) A summary of the circumstances of the offence
(b) The defendant’s criminal record (if any)
(2) In all other circumstances:
(a) A summary of the circumstances of the offence
(b) The defendant’s criminal record (if any)
(c) Any account given by the defendant in interview
(d) Any written statement or exhibit that the prosecutor has available and considers material to either the plea, allocation of case for trial, or sentence
(e) Any available statement of the effect of the offence on the victim, their family, or others
Sensitive Material - Surveillance
Case Law
R v JOHNSON established that the location of occupied residential premises used for surveillance will be sensitive material; due to the need to protect the owner or occupier of the premises (as opposed to any need for secrecy as to the location from which the surveillance was conducted).
R v BROWN established that where surveillance was conducted from an unmarked police car, information concerning the vehicle’s make / model / colour was NOT sensitive; as there were no issues with protecting occupants in these circumstances.
HIGHLY Sensitive Material
Disclosure Codes of Practice Para 6.16
In exceptional circumstances, where an investigator considers that material is so sensitive that its revelation to the prosecutor by means of an entry on the sensitive schedule is inappropriate, the existence of the material must be revealed to the prosecutor separately.
This will apply only where compromising the material would be likely to lead directly to the loss of life, or directly threaten national security.
In such circumstances, the responsibility for informing the prosecutor lies with the investigator who knows the detail of the sensitive material. The investigator should act as soon as is reasonably practicable after the file containing the prosecution case is sent to the prosecutor. The investigator must also ensure that the prosecutor is able to inspect the material so that he can assess whether it is disclosable and, if so, whether it needs to be brought before a court for a ruling on disclosure.
Previous allegations against officers involved in an investigation
(1) UNSUBSTANTIATED
It is not necessary to disclose details of unsubstantiated complaints made against an officer.
(2) PROVEN
May be disclosable material. It will be necessary to consider the nature of the disciplinary finding and its relevance to the current investigation. Dishonesty findings will normally be disclosed as they go to the credibility of the officer as a prosecution witness. Issues that have no relevance to the investigation need not be disclosed.
Failure to Comply with disclosure obligations
(1) The court has the discretion to adjourn the trial
(2) The court has the discretion to stay proceedings for an abuse of process (whether the court does do is a question of fact to be determined on a case-by-case basis).
(3) Claim for damages
(4) Conviction may be overturned
(5) The defence can hold off engaging in defence disclosure without fear of any adverse inference being generated.
Case Law
If there is, despite the omission to disclose, sufficient evidence to safely convict, then the trial should proceed. The defence should then be afforded the opportunity to persuade the court not to convict due to the failure to disclose.
BUT
If the court is satisfied that the prosecution had deliberately withheld evidence or frustrated the defence, then the court has the power to stay the proceedings.
If the failure to disclose was not deliberate the court must consider whether a fair trial was possible (despite the failure to disclose). If the answer is no, then the court WILL stay proceedings.
Defence Disclosure duty
The duty on the defence to make disclosure only arises after the prosecution has made the initial disclosure. The disclosure required by the defence is limited to material that it intends to use at trial.
Defence Case Statements
The defence statement should set out:
*Any particular defences on which the defendant intends to rely
*Particulars of the matters of fact on which the defendant intends to rely (i.e. a factual narrative of its case).
*Any point of law which the defendant wishes to raise, and any authority on which he/she intends to rely for that purpose.
*Any point as to the admissibility of evidence or an abuse of process
*Details of any alibi which the defence will involve, including the name and address of any alibi witness. *Any witnesses other than the defendant who will be called to give evidence.
