2) The CPIA 1996 Disclosure Code of Practice - Definitions

Question 1

What does the term ‘charging’ a person include?

Answer 1

Prosecution by summons or postal requisition.

Question 2

When is material ‘relevant’ to an investigation?

Answer 2

Where it appears to an investigator, the OIC, or the disclosure officer, that it has some bearing on:

• any offence under investigation,
• any person being investigated, or
• the surrounding circumstances of the case,

UNLESS…

…it is INCABLE of having any impact on the case.

Question 3

What is ‘sensitive material’?

Answer 3

Material that if disclosed, would give rise to a real risk of serious prejudice to an important public interest.

Question 4

What does disclosure to an ‘accused person’ include?

Answer 4

Disclosure to their legal representative.

Question 5

Does the term ‘police officers’ include those employed in a police force as defined by Section 3(3) of the Prosecution of Offences Act 1985 below?

“Police force” means any police force maintained by a local policing body and any other body of constables for the time being specified by order made by the Secretary of State for the purposes of this section.

Answer 5

Yes.

Question 6

Section 1 of CPIA 1996 defines the cases in which its disclosure rules would apply. Which cases are these?

Answer 6

All those OTHER THAN those in which the defendant pleads GUILTY at MAGISTRATES’ COURT.

(^^^Comes up in Online MCQs!^^^)

Question 7

Which investigations would, instead of falling under CPIA 1996, be subject to common law rules?

Answer 7

Any criminal investigations that began before the 1st of April 1997.

Question 8

What does ACPO (the Association of Chief Police Officers) say about CPIA 1996?

Answer 8

That it should be followed in ALL cases.

Question 9

What legal duties would apply in investigations that begun before the 4th of April 2005

Answer 9

The amendments to CPIA that were introduced by the Criminal Justice Act 2003.

According to Wikipedia a summary of the reforms are as follows:

“The old system was that the prosecution would provide initial disclosure to the defence (known as ‘primary disclosure’), the defence would provide a ‘defence statement’ and then the prosecution would provide ‘secondary disclosure’ in response to that defence statement. Now the prosecution are under a CONTINUOUS DUTY to disclose evidence, though the defence statement would impose a revised and stricter test (depending on the contents and detail of the defence statement).

The test for disclosure — ‘evidence which undermines the prosecution case or assists the defence case’ — remains, though the prosecutor’s own opinion of whether unused evidence meets those criteria is replaced by an OBJECTIVE TEST. However, the defence still cannot force the prosecutor to disclose such evidence until a defence statement is produced, so this change means little in practice.”

Question 10

Is it possible, under the definition of a ‘criminal investigation’ in CPIA for an investigation to begin into an offence before it has been committed?

Answer 10

Yes.

R v Uxbridge Magistrates’ Court, ex parte Patel [2000]

An investigation could begin before an offence was committed, for example in a surveillance case, or where a series of offences are committed, some before and some after an investigation has begun.

This would be a question of FACT in any given case.

Question 11

1) Who would CPIA apply to, other than the police, and why?

2) Who would it NOT apply to and why?

Answer 11

1) NCA, HMRC, and DWP investigators, because they are under a DUTY to ascertain whether criminal offences have been committed.
2) LAs and schools, because their PRIMARY RESPONSIBILITY does NOT relate to criminal offences.

Question 12

Are Disclosure Officers always police officers?

Answer 12

No - they can be a police officer or a civilian.

Question 13

If a Disclosure Officer is not appointed at the start of an investigation, when must they be appointed by?

Answer 13

They must be appointed in sufficient time to be able to prepare the unused material schedules for inclusion in the full file submitted to the CPS.

Question 14

What is a ‘prosecutor’ according to CPIA?

Answer 14

‘Any person acting as prosecutor, whether an individual or a body.’

In other words, the person or organisation taking the case to court.

Question 15

1) On most occasions who will the prosecutor be?

2) What other organisations would come under the definition of ‘prosecutor’?

Answer 15

1) The CPS.

2) The Serious Fraud Office and the Data Protection Registrar.

Question 16

Do private prosecutors have to comply with CPIA 1996 and its Code of Practice?

Answer 16

They ARE obliged to comply with CPIA 1996, but are NOT obliged to comply with its Code of Practice.

Question 17

What is the prosecutor responsible for regarding disclosure?

3 Points

Answer 17

1) Ensuring that initial disclosureis made to the defence.
2) Ensuring any further disclosures are made under the continuing duty to disclose.
3) Being available to advise the OIC, the other investigators, and the Disclosure Officer on matters relating to the RELEVANCE of material recorded and retained by police, SENSITIVE material, and any other disclosure issues that arise.

Question 18

Who would an application to the court to withhold material because of the public interest be made through?

Answer 18

The prosecutor.

Question 19

1) Does ‘relevant material’ ONLY relate to material that will become evidence in the case?
2) Can the way in which evidence was obtain be ‘relevant’?

Answer 19

1) No. Remember, it is any information, record, or thing that MAY have a BEARING on:
- any offence under investigation,
- any person being investigated, or
- the surrounding circumstances of the case,

and not all of this material will necessarily become evidence in the case.

2) Yes.

Question 20

Is what is relevant to the offence the same for all cases?

Answer 20

No it will be a question of fact in each case.

Question 21

Would the identities of potential witnesses to an arrest for an offence be ‘relevant material’?

Answer 21

No.

DPP v Metten [1999]

It was claimed that constables who arrested the defendant had known the identities of potential witnesses to the arrest and this had not been disclosed. The court held that this was not relevant material as it related to the time of the arrest rather than the time of the offence itself.

Question 22

Would material relating to the credibility of a witness be considered ‘relevant’ material?

Answer 22

Yes. In R v Dunn [2016] material relating to the credibility of a witness was held to be relevant, such as:

1) Any previous convictions.
2) Any possible grudge against the defendant.
3) Information showing a witness to be unreliable.

Question 23

Would the weather conditions for the day of the offence be ‘relevant’ for the purposesof disclosure?

Answer 23

Yes, if it went to the issue of identification.

Question 24

If house-to-house enquiries were made but nobody said they saw anything, would the fact that these enquiries had been made be ‘relevant’ for the purposes of disclosure?

Answer 24

Yes, this might be relevant.

Question 25

If in doubt as to whether material is disclosable or not, what should be done with it?

Answer 25

It should be recorded and placed on the schedule of undisclosed material. Throughout the case investigators and all others involved should continutally review this material.

Question 26

Is information given orally classed as ‘material’?

Answer 26

Yes.

Question 27

What is a ‘criminal investigation’, according to the CPIA Code of Practice?
(3 Points)

Answer 27

1) An investigation conducted by police officer…
2) …with a view to it being ascertained whether a peron should be charged with an offence…
3) …or whether a person charged with an offence is guilty of it.

Question 28

What 3 types of investigations can the term ‘criminal investigation’ as defined by the CPIA Code of Practice include?

Answer 28

1) Investigations into crimes that HAVE BEEN committed.
2) Investigations whose purpose it is to ascertain WHETHER a crime has been committed, with a view to the possible institution of criminal proceedings.
2) Investigations which begin in the belief that a crime MAY BE committed, for example when the police keep premises or individuals under surveillance for a period of time with a view to the possible institution of criminal proceedings.