Investigations and major incidents

When the CPIA provisions came into effect

1. The statutory scheme for disclosure of unused material under the CPIA applies to all “investigations” which begin after 1st April 1997. This scheme is amended by the CJA 2003 and the revised scheme should be applied to all investigations which commence on or after 4th April 2005
   

   An “investigation”

2. S23 CPIA provides that an investigation is “an investigation conducted with a view to it being ascertained:
   • whether a person should be charged with an offence, or
   • whether a person charged with an offence is guilty of it.”
3. Inspectors undertake many routine inspections. Such an inspection could develop into an investigation under the CPIA, for example if an inspector considers that the circumstances may warrant the investigation of a potential offence that could lead to a prosecution. It is therefore best practice to have CPIA considerations in mind at an early stage.
4. Additionally, information collected to support notices should be treated as if the information had been obtained under an investigation. This is because legal proceedings may develop if there is a failure to comply with the notice. In such a situation the information obtained at the time of the visit will be relevant in establishing the service of the notice and meeting disclosure obligations.
   

   Duty to retain “relevant material”

5. The Home Office Code imposes a duty to retain material that the investigator obtains in the course of the investigation, as well as material that is generated by the investigation, providing it may be relevant to the investigation. “it appears to the investigator, officer in charge or disclosure officer that it has some bearing on any offence under investigation or person being investigated, or on the surrounding circumstances of the case, unless it is incapable of having any impact on the case”^[1]
6. Relevance of material – the test for relevance must be considered from both the perspective of the prosecution and the defence. This is because the Home Office Code requires the investigator to pursue all reasonable lines of inquiry.
7. All material obtained in the course of an investigation will need to be considered in order to assess its relevance to the investigation. This includes material from specialist inspectors and experts. It also includes direct evidence as well as material created by an investigator that indicates the approach that has been adopted in relation to the investigation. You should consider searching archive material across HSE where there may be disclosable material held.
8. This material will then require consideration as to how it affects the case, including whether it may support a possible defence.
9. If you are unsure whether or not material is relevant you should obtain advice through your line management chain. If there is continuing doubt you should contact your legal liaison point setting out why you believe the material is incapable of having an impact on the case.
   

   Recording of information

10. If material that may be relevant consists of information which is not yet recorded in any form, the officer in charge of the investigation must ensure that it is recorded in a durable and retrievable form (whether in writing, on video or audio tape, or on computer disc) ^[2].
11. It should normally be recorded at the time it is obtained or as soon as practicable after that time. This does not require an investigator to take a statement from a potential witness where it would not otherwise be taken.
12. Careful recording of material that may be relevant will ensure that material is available for disclosure if it meets the disclosure tests. In practice this will mean that:
    • telephone notifications of accidents, complaints, etc should be recorded;
    • draft statements (if they differ significantly from the final version) and comments on them should be recorded; and
    • care will be required over the recording of information in inspectors’ notebooks.
13. The Home Office Code specifically mentions the need to record “negative information” that may be relevant to an investigation^[3]. An example is where an inspector finds in the course of an inspection that one machine is defective, but all the other similar machines are found to have nothing wrong with them. This “negative information” must be recorded, as it is potentially relevant to a prosecution, particularly the sentencing process.
    

    Retention of material ^[4]

14. The duty to retain material that may be relevant applies to:
    • material obtained by the investigator in the course of the investigation; and
    • material that is “generated” in the course of the investigation, for example interview records.
15. HSE Guidance includes a list of categories of material that must be retained, where the material may be relevant:
    • accident reports and notebooks;
    • records from telephone messages containing descriptions of an alleged offence;
    • final versions of witness statements;
    • draft versions of witness statements where their content differs from the final version. (As a matter of caution it is advisable that all draft statements are retained);
    • exhibits mentioned in a witness statement (unless in exceptional circumstances these have been returned to their owner on the understanding that they will be produced in court if required;)
    • interview records (written/audio/video tapes of interviews with actual/potential witnesses or suspects);
    • communications between inspectors and experts (including requests to clarify a draft report, remove ambiguities, or to cover additional material)
    • reports of work carried out by experts (including draft reports);
    • schedules of scientific material prepared for the purposes of criminal proceedings;
    • any material casting doubt on the reliability of a witness; any material obtained in the course of an investigation, including documents, computerised records, information from data recorders, photographs or videos;
    • any other material that may fall within the test for primary prosecution disclosure under the CPIA /CJA 2003.
16. If material that may be relevant is not retained, prosecution evidence may be weakened by defence allegations relating to non-disclosure of material. The defence may even seek to have the prosecution struck out on the ground of abuse of process and may rely on the “fair trial” provisions contained in Article 6 of the ECHR.
    

    Period of retention^[5]

17. All material that may be relevant must be retained until a decision is taken whether to prosecute a person for an offence.
18. If a prosecution is commenced, all material that may be relevant must be retained until:
    • the accused is acquitted; or
    • the accused is convicted; or
    • the prosecutor decides not to proceed with the case.
19. If a prosecution results in a conviction, all material that may be relevant must be retained:
    • for six months from the date of conviction, if the court imposes a non-custodial sentence; or
    • for six months or until a convicted person is released from custody, whichever is longer, if the court imposes a custodial sentence; or
    • until an appeal against conviction is determined, if longer than six months or any custodial period.
20. Material need not be retained if it was seized and is to be returned to its owner. (However it may be necessary to get an undertaking from the owner that the property will be retained during the retention period).
    

    Storage facilities

21. Material that may be relevant should be clearly labelled using HSE evidence bags, labels or tags, as appropriate (see OM 2001/128). Material should then be stored in designated secure storage facilities. All material relating to a particular case should, so far as possible, be kept in one place so that the disclosure officer can review the material as a whole.
22. After conviction inspectors may consider handing back material or equipment, providing the person concerned agrees in writing to retain it for the retention period.

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Footnotes

1. Home Office Code of Practice para 2.1
2. Home Office Code para 4.1
3. Home Office Code para 4.3
4. Home Office Code paras 4.1– 4.5
5. Home Office Code para 5.6 – 5.10 OC 168/4 Appendix 1 paras 4.6 – 4.10