Generally, documents and real evidence will need to be presented by witnesses in court. This means that every document or object which you wish to use in court must be produced by a witness as an exhibit.
Each exhibit must be identified by a label or other mark and sufficiently described in the statement to identify it. Identification should be made by the initials of the person who will produce the exhibit and a consecutive number. Thus, for example, the object would be marked with a label signed by AB reading:
"Exhibit AB1, referred to in the statement of [AB's name in full] dated [date]";
and the statement would include the words:
"I produce [object] marked AB1"; or
"I produce a copy of the said [document] marked AB1".
For example:
a record of taped interview should be exhibited by the inspector who conducted the PACE interview in a formal statement;
laboratory reports should be exhibited in a statement by the person who made the analysis; and
codes of practice or other official publications should be exhibited in the statement by the person who will produce them to the court, usually your expert.
Continuity and integrity of exhibits
You must ensure that all exhibits are kept safely and that there is a clear, identifiable audit trail from the moment that exhibits are seized to the moment they are presented in evidence. This is because the prosecution may have to prove that the exhibit before the court is the same exhibit that was referred to by the witness in his or her statement, or that the exhibit has not been tampered with illicitly while being retained for court proceedings. See OM 2001/128.
In establishing this chain of evidence, each person handling an exhibit must write a brief statement identifying the exhibit and its whereabouts, stating when they received it and who they received it from, and saying to whom they passed it and when.
So, for example, in respect of a sample which is seized and taken to a laboratory for testing, you need to obtain statements covering all the stages from the taking of the sample or the taking into possession of an article, through submission to the laboratory, testing etc, and to its production in court. You should obtain a statement from the officer carrying out the analysis to be able to say how the sealed sample came into the possession of that officer and how it was identified.
Documents
Where you find relevant documents in the defendant's possession,1 you should exhibit them in your statement detailing how they came to be in your possession. You should also obtain a statement from any person who gives you a document, describing the document and its context. If the person is called to prove an essential element in the case, s/he may refer to the documents when giving evidence.
Ensuring documents are in court
The procedure for ensuring that documents that you do not have (or that you only have copies of) are brought to court is dealt with in "Pre-Trial Procedure".
Company documents
If it is possible that the defendants may subsequently cast doubt on their own records, you should ask a director to confirm their validity either in a statement, if they are a witness, or in a PACE interview, if they are representing a corporate defendant.
You should obtain section 10 Criminal Justice Act 1967 admissions from the defence in respect of the documents from ICC or Companies House. (See the section on Formal Admissions). If they cannot be agreed, you will need to obtain certified copies by ringing Companies House2 or ICC (who can arrange to obtain certified copies).
Video recordings, photographs and drawings
These should be adequately identified in the statement of the inspector (or other person) who made the video, took the photograph or made the drawing.
Computer records
If a computer acts as a sophisticated form of calculator (i.e. it does not "contribute its own knowledge" to the document), the document produced will not be hearsay. It may be necessary to call evidence to describe the function and operation of the computer before the judge can decide whether the document is real evidence or hearsay3.
There is now a rebuttable presumption that computers are working properly. The defence may adduce some evidence to the contrary, and in those circumstances the prosecution would have to prove the reliability of the computer. The section on Hearsay deals with the further requirements that may have to be complied with.
Documents and hearsay evidence
In most cases, documents being produced in evidence do not offend against the hearsay rule because you are not asserting that the facts stated within them are true. For example, while a letter from HSE may show that a defendant was told that his methods were unsafe, it does not prove that he actually used such methods. So, if the purpose of producing the document is to prove what it said, rather than the truth of what it said, there is no difficulty.
Similarly, an expert witness may rely on documents which form part of the literature which relates to a process or risk; there is no need to produce the originals or to call the person who wrote the document.4
Occasionally, you will wish to prove the truth of statements contained in a document. In such cases, you will normally need to call the maker of the document to support the statements it contains. Sometimes this is not possible. If you need to prove the facts alleged in a document and cannot call the maker of the statement, there are provisions which allow the document to be admitted in evidence, and these are dealt with in the section on Exceptions to the hearsay rule.
Documents and self-incrimination
Under s 20 HSWA, you have the power to take a copy of documents required to be kept under any of the relevant statutory provisions or that are necessary for you to see for the purposes of your investigation. You should be aware that the defence may argue that, if such documents are relied upon in a prosecution, this infringes their right against self-incrimination. The basis of this argument is that, since the defendant was compelled to provide the copies, they have been compelled to incriminate themselves.5
The Court of Appeal has stated6 that there is a distinction to be drawn between the compulsory production of documents or other material which had an existence independent of the will of the suspect or accused person and statements that they have had to make under compulsion.
In other words, it is important to determine whether the material in question is evidence that a defendant has been compelled to create (e.g. a compelled statement) or evidence that was already in existence, where the effect of the compulsory power is to bring such evidence to the attention of the court (e.g. a company’s documents). Material in the first category may be protected from prosecution use by the right not to incriminate oneself. Material in the second category does not have this protection.
Previous character
Evidence of the previous safety record of the defendant may be relevant to the offence and will be relevant to the penalty. You should therefore collect any relevant evidence of previous convictions and previous enforcement action, whether formal or informal, and ensure that steps have been taken before trial to allow its use, when admissible.
Evidence of previous convictions will not usually be admissible as part of the prosecution case but may be in certain limited circumstances. For example, as 'similar fact evidence', to rebut evidence of lack of awareness of danger7 or innocent mistake.8
Where there have been letters or notices to the defendant previously, the inspector who has first-hand knowledge of these should prepare a statement describing that action. 9 Where this is not practical, then the investigating inspector should produce the documents in their statements10 stating "from HSE records I produce...".
Where the defendant has previous convictions, you should inform the defence that you will be bringing this information to the attention of the court. This allows for any representations about disputed facts to be made11. You should write to the convicting court and request a Certificate of Conviction12 and serve a `Notice of Intention to Cite Previous Convictions'13 on the defendant.
Footnotes
This statement should mention that you have taken possession of the document in the exercise of your s.20 powers.
In JB v Switzerland, May 3 2001 (ECHR), a person’s right against self-incrimination under Article 6 of the European Convention on Human Rights was infringed where they were fined for refusing to surrender financial documents to the Swiss tax authorities when required to so by law.
R v Kearns [2002] 1 WLR 2815, relying on Attorney General’s Reference (No 7 of 2000), TLR 12 April 2001. In Kearns, the court considered the effect of JB v Switzerland in reaching its decision.
R v Bond [1906] 2 KB 389 at 421.
R v Rance (1975) 62 Cr. App. R. 118: signing false certificates.
