5) Retention of Material

Question 1

Must material that may be relevant be retained in its original form?

Answer 1

No, it may be retained in the form of a copy.

Question 2

List 3 examples of ways in which material may be retained in the form of a copy.

Answer 2

1) As a photograph of the original.
2) As a video of the original.
3) As some other capturing of the original in a digital format.

Question 3

List 3 reasons that material may be retained in the form of a copy rather than the original.

Answer 3

1) If the original is perishable.
2) If the original was supplied to the investigator and is to be returned to its owner.
3) A retention of a copy rather than the original is REASONABLE in all the CIRCUMSTANCES.

Question 4

In situations in which material has been seized using the powers of seizure in PACE 1984, the duty to retain it under the CPIA 1996 cope of Practice is subject tp the provisions of what section in the 1984 Act?

Answer 4

Section 22 of PACE 1984.

Question 5

If the OIC in an investigation becames aware that material previously examined but not retained may not be relevant, what should they do?

Answer 5

Wherever practicable, they should take steps to obtain it or ensure that it is retained for further inspection or production in court if required.

Question 6

List the types of material that should be retained, if relevant to the investigation. (9 Points)

Answer 6

1) Crime Reports
(Including Crime Report Forms, relevant parts of Incident Report Books, and PNBs)

2) Custody Records
3) Final Versions of Witness Statements
4) Draft versions of witness statements, where their content differs from the final verson.
5) Any exhibits mentioned (unless these have been returned to their owner on the understanding that they will be produced in court if required).
6) Interview Records (Whether written, audio, or video, and whether with potential witnesses/suspects or actual ones).
7) Communications between the police and experts such as forensics scientists, reports of work carried out, and schedules of scientifica material prepared by the expert for court.
8) Records of the first descriptions of a suspect given by any potential witness purporting to identify or describe the susect, whether they differ from subsequent descriptions given by themselves or other witnesses, or not.
9) Any material casting doubt on the reliability of a witness.

Question 7

Some of the material that may be relevant to the investigation and therefore falls under a duty to be retained includes material that may satisfy the prosecution test for disclosure. Give 3 examples of types of material that would fall into this category.

Answer 7

1) Information provided by the accused providing an explanation for the offence for which they have been charged.
2) Any material casting doubt on the reliability of a confession.
3) Any material casting doubt on the reliability of a prosecution witness.

Question 8

Must ancillary material that has no independent significance, such as duplicate copies of reports or records be retained?

Answer 8

No.

Question 9

How long must any material that may be relevant be retained in ALL investigtion at the VERY LEAST?

Answer 9

At least until a decision is made as to whether to institute proceedings or not.

Question 10

How long must any material that may be relevant be retained once proceedings are instituted?

Answer 10

At least until the accused is acquitted, convicted, or the prosecutor decides not to proceed with the case.

Question 11

How long must any material that may be relevant be retained, in the case of a convicted person for whom the court has imposed a custodial sentence or made subject to a hospital order?

Answer 11

At least until the convicted person is released from custody / discharged from hospital.

Question 12

How long must any material that may be relevant be retained, in the case of a convicted person for whom the court has NOT imposed a custodial sentence or made subject to a hospital order?

Answer 12

At least until six months from the date of conviction.

Question 13

How long must any material that may be relevant be retained, in the case of a convicted person for whom the court has imposed a custodial sentence or made subject to a hospital order, but they are then subsequently released earlier than 6six months from the date of conviction?

Answer 13

At least until six months from the date of conviction.

Question 14

How long must any material that may be relevant be retained, if an appeal against conviction is in progress when the convicted person’s release or discharge occurs, or at the end of the six month period after they were convicted?

Answer 14

Until the appeal is determined.

Question 15

How long must any material that may be relevant be retained, if the Criminal Cases Review Commission is considering an application at the time that the convicted person’s release or discharge occurs, or at the end of the six month period after conviction.

Answer 15

At least until the Commission decides not to refer the case to the Court.

Question 16

1) What could a failure to retain material lead to and why?

2) Give a case law example.

Answer 16

1) The prosecution losing the case, because the absence of such material could lead to the defendant not being able to receive a fair trial, which they are entitled to under Article 6 of the ECHR.

2) Mouat v DPP [2001]
The defendant was videoed by an unmarked police car exceeding the speed limit. His defence was that he was trying to get away from a driver who was driving dangerously close behind him and he had no idea it was a police car; i.e. duress of circumstances. Once he stopped he was shown the video by the officers and given a Fixed Penalty Notice, meaning he would have the choice whether to pay the fine, or to elect for trial within 21 days. By the time of the trial the tapes in the police car had been re-used. The High Court held that the police were under a duty to hold the tapes at least until the end of the ‘suspended enforcement period’ of 21 days, during which time the defendant was entitled to consider whether he wished to contest his liability in court. His conviction was therefore quashed.

Question 17

1) Should consideration be given to any force orders when deciding what material should be retained?
2) What else should be considered?

Answer 17

1) Yes.

2) What POWERS are available to seize and retain, as well as the AG’s Guidelines on disclosure.

Question 18

Does material have to be admissible in order to undermine the prosecution’s case?

Answer 18

No.

In R v Preston [1994] it was said that:

Often, the train of inquiry which leads to the discovery of evidence which is admissible at trial may include an item which is not admissible, and this may apply, although less frequently, to the defence as well as the prosecution.

Question 19

Is cases where there is a surveillance operation or observation point, MUST the details of these be revealed?

Answer 19

No, it MAY be that the are not revealed, but it WOULD be necessary to retain information generated from them.

Question 20

Does CCTV footage need to be retained in all cases?

Answer 20

No.

Question 21

What would need to be considered in court in order to determine whether CCTV footage should have been obtained or retained by the prosecution?

Answer 21

Whether or not the prosecution had been UNDER A DUTY to obtain or retain the video evidence.

If they had not, it would NOT be an abuse of process simply because the material was no longer available.