Approach to common categories of material

Notebooks

1. Inspectors should remember that notebooks containing a record of the investigation are potentially disclosable to the defence in any proceedings. They should not be regarded as “private documents”. The following points are important:
   • As a matter of good practice each notebook should bear the name of the inspector and the date that the notebook use commenced;
   • A notebook may contain material which is liable to disclosure if it potentially undermines the prosecution case or assists the defence case;
   • It must be clear what any entry within the notebook relates to, so as to assist a later disclosure decision should the investigation or inspection lead to a prosecution.
2. Therefore, it is important that:
   • notebooks contain only material which relates to inspections and investigations (including measurements, informal admissions and other factual information);
   • each note should be clearly headed and dated;
   • the status of any entry is clear and, if necessary, suitably qualified, for example to show that measurements are approximate;
   • entries are unambiguous and cannot be misrepresented. This is particularly important if an entry suggests or apportions blame. The defence may argue that there was bias in the investigation and that an inspector did not fulfil the requirement under the Criminal Procedure and Investigations Act 1996 (CPIA) to be a “finder of fact” for both the prosecution and defence; and
   • notebooks should be used and kept in such a way that it is clear that the contents have not been altered or otherwise tampered with. For example, entries must be written in a permanent ink form.

Process material

3. Process material, i.e. material that relates to the prosecution process, should be clearly identified. Normally, such material is not relevant and would therefore not need to be scheduled (although it should be retained). However, it should not be assumed that an item is not relevant simply because of its description, and it is important that each piece of material is considered individually as to whether it is potentially disclosable.

E-mails

4. All types of information about the prosecution process and the prosecution case may be contained in e-mail messages. Some of that information may be disclosable. Consequently, care should be taken as to the information that is put in e-mails.
5. In order to be able to perform the CPIA duties properly, and to enable the officer in the case, the disclosure officer and the prosecutor to fulfil their CPIA duties, an investigator must record and retain any potentially relevant material in a durable and retrievable form.
6. Any potentially relevant e-mail material must be retained on the prosecution file for consideration in the course of the disclosure process. This is normally done by printing off the e-mails concerned but could be done electronically, as long as it is in a durable form and kept on the file.

HSE computer records (e.g. COIN)

7. Records in HSE IT systems such as COIN may contain potentially relevant material, although some of what is contained in such systems is likely to be protected by legal professional privilege or public interest immunity.
8. Any computer record / report relating to a defendant should be revealed to the prosecutor so that the information contained in the reports can be considered in the context of the CPIA disclosure regime, although the material will not be disclosable unless it is relevant.

Expert and specialist evidence

9. The use of experts in HSE prosecutions is extremely common. However, it does raise specific issues in relation to the disclosure of material.
10. Material relating to the development of expert opinion is potentially disclosable and experts should keep any relevant material that they have in their possession in a suitable form for possible disclosure. The disclosure officer must ensure that this information is revealed to the prosecutor. External experts, and even experts within HSL, may hold “third party material” (see below). Whilst the CPS has issued its own guidance to expert witnesses, HSE's instructions are contained here, in the Expert evidence section and in the investigation operational procedures.

Experts' disclosure obligations

11. Once an expert has been appointed, s/he should be reminded that, as part of his/her duty to the court, s/he must assist in ensuring that the prosecution complies with its disclosure obligations. As with members of the investigating team, experts should be aware of the requirements to record, retain and reveal material in the course of preparing the report and giving expert evidence in court.

Recording and retaining

When and how to record

12. Experts must begin to record relevant information from the date that they receive instructions. The duty to record continues for the entire period they are involved.
13. Records should be in durable form. Notes should be structured in a manner that facilitates review and any updates, alterations or comments should be clear. It is important that the notes are clear and comprehensive so as to allow anybody who subsequently reviews them to have a full understanding of the position at any given time. In particular, notes should be sufficiently detailed, and expressed in such a way, that other experts in the field are able to follow the nature of the work undertaken and to identify both any assumptions made and the inferences drawn from the work.
14. Records of communications between inspectors and experts should always indicate the date, the person(s) involved and a brief description of what was said. It is important that points of agreement (or disagreement) and agreed actions are recorded.
15. The format of record used will depend on the size and complexity of the investigation, but it might be:
    • a series of notes in a notebook;
    • a note in a dedicated log book; or
    • some other form of log.

What to record and retain

16. Experts should record all work carried out, and any findings reached, in relation to the investigation and prosecution case. They should be instructed to retain everything, including physical, written and electronically captured material, until otherwise instructed and the investigator has indicated the appropriate action to take.
17. The following offers general guidance on material to be recorded and retained by an expert, but is not an exhaustive list:
    • Information relating to the chain of evidence;
    • Details of any site visits and the examination of materials;
    • Any notes used in the preparation of a report that contain primary facts not already recorded elsewhere, including any notes relating to preliminary conclusions;
    • Notes of speculative thinking, together with notes relating to preliminary conclusions and any other related notes;
    • All communications, verbal and written, with the inspector/investigating officer and any other relevant parties including e-mails and other electronic transmissions (e.g. images) sent or received. Correspondence between the expert and the inspector may be purely administrative in nature (for example, discussions regarding the payment of fees or an email asking when a report will be completed). As with similar material, this will not be relevant and need not appear on the schedules of unused material but that is for the disclosure officer to decide and the communications should nevertheless be retained;
    • Notes of meetings attended;
    • Clear notes of any witness accounts or explanations that the expert has been provided with, or any other information received; and
    • The results of all tests and not just those that support the prosecution case.

How long to retain

18. As with all other material generated in the course of an investigation, the period of time for which expert materials are required to be retained will vary from case to case and will depend on a number of factors. Factors include the nature of the offence, the stage and status of any legal proceedings, and whether the case is of special interest. It must also be remembered that the retention requirement may alter as a result of a change of circumstances during the course of the investigation.

Revealing material

What to reveal

19. The expert is required to reveal to the disclosure officer all the material s/he has recorded. It is a necessary and important part of the expert's disclosure obligations to make the prosecution team aware of all the material that is in his/her possession in relation to the investigation. This will enable the disclosure officer to make informed decisions as to what material is relevant and whether it satisfies the disclosure test.
20. The expert has no role in determining what should be disclosed to the defence and s/he should follow instructions in relation to used and unused material. The disclosure officer will schedule the relevant material and apply the disclosure test. Any disclosure to the defence should be carried out under the guidance of the prosecutor, as the use of experts can lead to difficult disclosure issues. If necessary, the assistance of the prosecutor should be sought as early as possible.
21. All expert reports, other than the final one, should be identified as drafts, making it clear that they do not represent a final report (see Draft reports). Materials which may have some bearing on the offence charged, and the surrounding circumstances of the case, including the results of all tests, must be made known to the disclosure officer who must disclose them to the defence.¹

How to reveal

22. The expert's report or statement will set out his/her opinion and the material upon which s/he relies. In addition to the report, the expert should be asked to supply a list of any material that s/he has not relied upon, for example:
    • Administrative records detailing the transfer of samples or exhibits and instructions;
    • Notes;
    • Draft reports;
    • Correspondence including e-mails;
    • Minutes of conversations;
    • Databases;
    • Test results; and
    • Material which the expert has decided to disregard.
23. This list will assist the disclosure officer in scheduling the unused material relevant to the case. The expert should remember that revelation to the prosecuting team does not necessarily mean disclosure to the defence.

Disclosure of the expert report

24. If the prosecution intends to rely on expert evidence, Part 24 of the Criminal Procedure Rules 2005² requires disclosure of that evidence and associated material irrespective of the CPIA regime. This material should, however, be retained in the course of the investigation in accordance with the CPIA disclosure requirements.
25. The Criminal Procedure Rules state that, following committal for trial from the magistrates' court or a plea of not guilty in respect of which a magistrates' court proceeds to summary trial, any party who proposes to adduce expert evidence must provide the other party (or parties) with the expert report that s/he intends to put into evidence. Consequently, a copy of any expert report that the prosecution intends to use in evidence must be provided to the defence. HSE expert reports will usually form part of the committal bundle in any event.
26. In addition to the above requirement to provide the actual report, the defence can make a request in writing for a copy of (or to inspect) “the record of any observation, test, calculation or procedure on which the experts findings or opinion are based and any document, substance or thing on which any such procedure has been carried out” (Rule 24.1(1)(ii)). It is also open to the prosecution to make such an application in respect of any defence expert. With regards to unused material, this entitlement is interpreted widely.
27. Rule 24.2 does allow expert evidence to be withheld where either the prosecution or defence has reasonable grounds for believing that the disclosure of any evidence in compliance with the requirements imposed by Rule 24.1 might lead to the intimidation, or attempted intimidation, of any person on whose evidence he intends to rely in the proceedings, or otherwise to the course of justice being interfered with. In such circumstances, s/he is not obliged to comply with the requirements of Rule 24.1 in relation to that evidence. A notice must be given to the opposing party to the effect that the evidence is being withheld and state the grounds for doing so. HSE would not expect to have to rely on these provisions as a matter of course.
28. Where an expert report is to be used as part of the prosecution case, there are many types of material that might be relied upon or created and which may or may not be unused material that is potentially disclosable. These types of material can generally be placed in the following categories:
    1. Material provided to the expert by the inspector. This will usually, but not always, be the evidence upon which the prosecution relies;
    2. Other material the expert uses in completing the report, for instance established scientific findings or other published or unpublished texts, such as research reports, articles, codes of practice and guidance;
    3. Records of any observations, tests, calculations or other procedures which are not part of the final report (any such records that are part of the final report must, of course, be produced as part of the prosecution evidence);
    4. Draft reports or summaries thereof from the expert; and
    5. All correspondence or other communications passing between the expert and the inspector, for instance instructions to the expert and notes of telephone conversations, other than those between the expert and lawyers (which are legally privileged).
29. The defence is entitled to see any material provided by the inspector to the expert (category (a) material in the above paragraph). This will usually form part of the prosecution case and will therefore be provided to the defence in any event. However, where the expert has been provided with unused material, the defence, upon written request, will be allowed to see this material. This should not cause any difficulties as this material will have been scheduled as normal as part of the disclosure process. However, inspectors should be careful not to provide sensitive or privileged material (such as the investigation and prosecution reports) to an expert, as these will then be disclosable to the defence.
30. The Criminal Procedure Rules also allow the defence to see the material listed at (b) and (c) above. This material should normally be listed within the expert report and therefore disclosure to the defence should not cause any problems. Any such material should be scheduled as normal by the disclosure officer.
31. If an expert report is obtained but is not used as part of the prosecution case, it should be treated as any other document in accordance with the CPIA requirements on disclosure, that is scheduled, considered under the disclosure test and disclosed to the defence if appropriate. Any associated documentation, such as instructions to the expert, should be treated in the same way.
32. Draft reports (category (d) above) should be considered in the same way as other draft statements and scheduled if materially different from the final version (there is no need to schedule every version of the report as it develops).

Third party material

33. Neither the CPIA nor the Home Office Code contains guidance on the disclosure of “third party material”. This is material held by other organisations which might be disclosable if it were held by the prosecution.
34. Examples of organisations that might hold third party material that could be relevant to an investigation include:
    • The Police;
    • The Crown Prosecution Service;
    • The Coroner / Coroner's Officer;
    • The Environment Agency;
    • The Inland Revenue;
    • The Charity Commission; and
    • The Benefits Agency.
35. This lack of provision for third party material in the CPIA or Home Office Code was so serious that arguably the CPIA disclosure regime could have been in breach of the Human Rights Act 1998. To ensure that the application of the CPIA disclosure regime was “European Convention on Human Rights compliant”, the Attorney General's Guidelines provide guidance on third party disclosure issues ³.
36. If it appears to an investigator, disclosure officer or prosecutor that a Government department or other Crown body has material that may be relevant to an issue in a case, reasonable steps should be taken to identify and consider such material.
37. What steps will be “reasonable” will vary from case to case. However the department or body should be informed of:
    • the nature of the prosecution case; and
    • the relevant issues in the case in respect of which the department or body might possess material.
38. The department should then be asked whether it has any such material so that the prosecution can consider it.
39. There may be cases where the investigator, disclosure officer or prosecutor suspects that material, which might be disclosable if it were in the hands of the prosecution, is held by a non-government agency or other third party, for example:
    • A local authority;
    • A hospital; or
    • A provider of forensic services.
40. In such cases, the prosecution should consider whether it is appropriate to seek access to the material or information and, if so, take steps to obtain it. It undoubtedly will be appropriate to do so if the material is likely to undermine the prosecution case or assist the defence case.⁴
41. In the event that the third party refuses access to the material, it may be possible for the prosecution to apply for a witness summons to require a representative of the third party to produce the material to the court. In such a circumstance advice should be obtained from Legal Adviser's Office before any application is made to court.
42. If potentially disclosable information comes to the knowledge of the prosecution as a result of liaison with third parties, for example in the course of informal discussions, it should be recorded in a “durable or retrievable” form, most obviously a file note, as soon as possible.
43. If third party material is found to be disclosable because it either undermines the prosecution case or assists the defence, the agency should be informed that disclosure is to take place before it is made. This will give the third party the opportunity to raise any public interest considerations which might require a court to decide whether the material should be disclosed.
44. The Police Service. In many investigations undertaken by HSE, the police may hold potentially relevant third party material. This would certainly be the case if the police, as well as HSE, had been involved in investigating the circumstances of an offence, for example in connection with a work-related death.
45. Police forces are not strictly Crown bodies as Chief police officers are independent office holders under the Crown. However, the principles outlined in the AG's Guidelines concerning third party material also apply to the police. They should therefore be approached and informed of:
    • the nature of the HSE case;
    • the relevant issues in the case in respect of which they might possess material.
46. They should then be asked whether they have any potentially disclosable material. If so, they should be asked to release it to HSE.
47. The duty on the prosecution to undertake a process of ongoing review of unused material applies throughout all stages of the trial process. This means that unused material held by third parties may become potentially relevant because it might undermine the prosecution case/assist the defence at different stages of the prosecution process.

Third party material held by HSE

48. HSE may hold third party material in a prosecution undertaken by another prosecuting agency, most obviously the Crown Prosecution Service or the Environment Agency.
49. Advice should be sought from Legal Adviser's Office if an inspector receives a request to disclose third party information to another prosecuting agency. It is important that HSE fully complies with disclosure requirements affecting such material. However, particular care will be required if HSE is itself prosecuting or considering prosecuting, relying on the same material.

Requests for disclosure under the Anti-terrorism, Crime and Security Act 2001

50. HSE may be asked by other organisations that carry out criminal investigations or prosecutions (for example, the police or the Crown Prosecution Service) to disclose information pursuant to the Anti-terrorism, Crime and Security Act 2001 (“ATCSA”). Under section 17 of that Act, an investigating authority may request information which was obtained by HSE for the purpose of assisting their criminal investigations or proceedings (whether in the United Kingdom or abroad), including whether these investigations or proceedings should be initiated or brought to an end. Section 28(7) HSWA has been amended by section 17(1) ATCSA to permit such disclosure
51. Requests for information under section 17 of the ATSCA are not limited to crimes of terrorism.
52. HSE has a discretion as to whether or not to comply with a request for disclosure of information under section 17 of ATCSA. The Act imposes an obligation on HSE as a public authority to ensure that disclosing the information would be proportionate to what the investigating authority is seeking to achieve. This will, necessarily, depend on the circumstances surrounding each individual request.
53. As a public authority, HSE must comply with the provisions of the Human Rights Act 1998. Accordingly, any disclosure under ATCSA must:
    • be for one of the purposes listed in section 17 ATCSA;
    • be necessary for one of the purposes listed in Article 8(2) of the European Convention on Human Rights; and
    • meet the test of proportionality.
54. Any disclosure must also comply with the provisions of the Data Protection Act 1998.
55. Advice must be sought from Legal Adviser's Office if an inspector receives a request from another investigating or prosecuting agency to disclose information pursuant to section 17 ATCSA. While it is important that HSE fully complies with any disclosure requirements, particular care will be required if HSE is itself prosecuting or considering prosecuting, relying on the same material.

Previous convictions of witnesses

56. Under the CPIA, a prosecutor has a duty to disclose to the defence relevant information which may assist the defence or undermine the prosecution. It may be necessary to disclose information about prosecution witnesses upon whom HSE intends to rely. Such information may include previous criminal convictions, ongoing criminal matters and formal cautions. If HSE staff are to appear as prosecution witnesses, then disclosure may also include disciplinary findings of guilt and ongoing disciplinary matters (for further guidance, see the section Witnesses and statements – Attendance of witnesses.)
57. The legal duty of disclosure will arise if there is a not guilty plea at the magistrates' court, or if the matter is committed for trial at the Crown Court. The disclosure officer will be required to obtain checks on all witnesses upon whom the prosecution will rely.⁵
58. There may be exceptional circumstances, for example if a case relies on the credibility of a particular witness, when it will be necessary to obtain the witness check at an earlier stage. This will allow any previous convictions of the witness to be taken into account when the prosecution report is being considered for approval.

Information obtained from complainants

59. It is becoming more common for information to be given to an investigator by a complainant who wishes to remain anonymous. This should be recorded in accordance with HSE's operational procedures.
60. The complainant may give details of his/her identity but require that these details are not disclosed. If this happens, a note should be made of the identity of the complainant, the information that was given, together with details of the time, place and circumstances in which the complaint was made. These details should be retained and revealed in due course to the disclosure officer and prosecutor using the sensitive material schedule.
61. If the complainant refuses to give details of his/her identity, a note of the refusal must be recorded, together with any information that was given and the time, place and circumstances in which it was provided. This information must be retained and revealed to the disclosure officer and prosecutor using the sensitive material schedule.
62. The material may be disclosable if it meets the disclosure test. However, if the prosecution does not want the information and/or identity of the informant to be disclosed, it will be necessary to apply to the courts for permission to withhold the information on the grounds of public interest immunity (a “PII application”).

Public interest immunity

63. In rare cases, material that would normally be disclosed may fall outside legal requirements for disclosure by coming within one of the categories of public interest immunity (“PII”).
64. In broad terms, it will not be in the public interest to disclose:
    • material relating to national security;
    • information that will reveal the identity of informants;
    • information that will reveal the whereabouts of observation posts;
    • information that would facilitate the commission of other offences;
    • information that would hinder the prevention, detection and investigation of crime; and
    • certain internal HSE communications, for example communications concerning allocation of resources to an investigation, press briefings or briefings for senior HSE management or a Minister.
65. In such circumstances, it will be necessary for the prosecution to make a PII application to the court to withhold material from the defence. If the defence applies to the courts for disclosure of material, the prosecution may, if appropriate, oppose the application on the ground of public interest immunity.
66. When considering whether to grant immunity, the court must carry out a balancing exercise between the different and competing interests of the prosecution and defence. There is no set test that the court applies, as each case is different and must be considered on its own facts. A court may change its decision during the course of a trial if the balance of interests changes.
67. The AG's Guidelines⁶ require that before a PII application is made, a prosecutor should aim to disclose as much material as possible, for example, by giving the defence redacted or edited copies of summaries.
68. Additionally, the Guidelines require that:
    • the court must be provided with full and accurate information;
    • the prosecution advocate must examine all material that is the subject matter of the application and make any necessary enquiries of the prosecutor and/or investigator;
    • the prosecutor (or representative) and/or the investigator should attend the application.
69. PII applications are normally held before the judge in private (“in camera”) rather than in open court. This allows the judge to direct questions to those who have most knowledge of the case. In practice, therefore, it will be necessary for the investigating officer and, if different, the disclosure officer to attend court as the judge will address most questions concerning the basis on which immunity for material is sought to them.
70. All cases involving PII must be considered by Legal Adviser's Office to ensure that a consistent approach is taken.

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Footnotes

1. R v Maguire and Others [1992] 1 QB 936
2. S.I. 2005 No. 384
3. Paras 47-54 AG's Guidelines
4. The AG's Guidelines state (para 51) that the prosecutor should take appropriate steps to obtain material or information held by a third party where he believes that the material or information might reasonably be considered capable of undermining the prosecution case or or assisting the defence. In R v Alibhai [2004] EWCA Crim 681, the Court of Appeal emphasised that the material or information has to be more than “potentially relevant”; there must be a suspicion (now described by the Guidelines as a belief) by the prosecutor that the material is damaging to the prosecution or of assistance to the defence. Furthermore, the Court held that, even in such a situation, “the prosecutor is not under an absolute obligation to secure the disclosure of the material or information. He enjoys what might be described as a ‘margin of consideration' as to what steps he regards as appropriate in the particular case.”
5. OC 168/6
6. Paras 41 and 42 AG's Guidelines