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disclosure

in Criminal Proceedings
Manual of Guidance

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Copyright

ACPOS Ltd 2010 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means: photocopy, electronic, mechanical, recording or otherwise without the prior written permission of the copyright holder. Applications for reproduction should be made to: ACPOS Ltd registered in Scotland Registration Number SC310956 Registered Office: 26 Holland St, Glasgow, G2 4NH This manual is published on the ACPOS website and thereby available to the public. Any specific request for this manual engages the Section 25 exemption in the Freedom of Information (Scotland) Act 2002 (Information otherweise accessible) and the applicant should be directed to the ACPOS website.

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Foreword

Chief Constable Stephen House QPM Strathclyde Police Chair: ACPOS Crime Business Area

In any criminal proceedings in Scotland, disclosure of relevant material to the accused is a fundamental requirement of criminal justice in accordance with Article 6 of the European Convention on Human Rights. Failure to disclose relevant material will almost inevitably compromise a case. The Lord Advocate has stated that if the Crown does not fulfil its disclosure obligations to the defence, this may result in a breach of the Article 6 rights of an accused to a fair trial under the ECHR and a conviction being quashed on appeal. The duty of disclosure falls to the Crown Office and Procurator Fiscal Service; however, COPFS can only discharge this duty satisfactorily if police officers reveal to Procurators Fiscal the existence of all material which may be relevant and has been obtained in the course of investigations. In the landmark case of Smith v HMA [1952], the court set out the duty of the police .to put before the Procurator Fiscal everything which may be relevant and material to the issue of whether the suspected party is innocent or guilty.

That guidance still holds good today,and has been affirmed and reinforced by the more recent cases of McLeod v HMA [1998] and McDonald v HMA [2008] which clarify the duty on the Crown .to disclose all material evidence for or against the accused. Material evidence is defined as anything which is likely to be of real importance to any undermining of the Crown case, or to any casting of reasonable doubt on it, and of positive assistance to the accused. This Manual of Guidance is issued to provide direction to all police officers and police staff who have a part to play in the reporting and prosecution of offenders, to ensure compliance with ECHR and relevant case law. It is equally applicable to summary and solemn proceedings, and to reactive investigations and proactive operations. It has been compiled with the primary objective of meeting the needs of operational officers and staff. I commend it to you.

April 2010

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Foreword

Mr Stephen House QPM Chief Constable Chair of ACPOS Crime Business Area

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Contents
1 - OVERVIEW TO DISCLOSURE Introduction Disclosure Duty on the Crown Duty of Revelation on the Police Service Reporting of Criminal Proceedings Consequences of Non-Disclosure Links Between Investigation and Disclosure Criminal History Information Consultation with Solemn Legal Manager Appeal Proceedings Diversity 2 KEY DEFINITIONS AND PRINCIPLES Introduction Essential Definitions The Key Principles and Relevant Case Law Data Protection Act 1998 3 RECORDING AND RETENTION Introduction Recording Lines of Enquiry Retention of Intelligence 4 RESPONSIBILITIES General Reviewing Responsibilities Continuous Duty to Review 4.1 4.3 4.11 3.1 3.5 3.9 3.14 2.1 2.7 2.16 2.34 1.1 1.5 1.13 1.21 1.25 1.26 1.29 1.32 1.34 1.36

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5 ROLE DESCRIPTORS Introduction Chief Constable Reporting Officer (RO) Senior Investigating Officers (SIO) General Responsibilities Appointment of Reviewing Officer (RVO) Recording and Retention of Relevant Material Revelation of Relevant Material to COPFS Reviewing Officer (RVO) The Three-Stage Assessment Process Review Process for Schedule Completion Responsibilities of Dedicated Reviewing Officer/s Multiple RVOs Intelligence RVOs HOLMES2 RVOs Police Staff 6 REASONABLE LINES OF ENQUIRY Introduction What Is a Reasonable Line of Enquiry? Who Decides What a Reasonable Line of Enquiry Is? 7 INVESTIGATIONS INVOLVING FORENSIC EXAMINATION OR ANALYSIS Introduction Commissioning of Forensic Examination or Analysis Undetected Crime Investigations Detected Crime Investigations Processes General Seizure, Recording and Retention Movement of Material Submission Examination Results of Examinations Undetected Cases General Solemn Cases 7.35 7.38 7.39 7.1 7.9 7.10 7.11 7.15 7.16 7.20 7.28 7.30 7.33 6.1 6.2 6.10 5.1 5.2 5.5 5.8 5.10 5.12 5.17 5.27 5.28 5.31 5.50 5.54 5.64 5.67 5.75 5.80

Major Incident Room Standardised Administrative Procedures (MIRSAP) RVOs 5.79

Contents

Summary Cases Detected Cases

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Solemn Cases Summary Cases Scientific Joint Reports, Scene/Locus Reports and Statements Negative Findings Defence Access to Scientific Examination and Analysis Records Access to Other Material 8 - CROSS-FORCE, AGENCY AND BORDER INVESTIGATIONS Introduction General Parallel and Linked Investigations Reviewing Officers (RVOs) Cross Border Investigations International Investigations Sensitive Intelligence Material 9 STATEMENTS Introduction Format and Retention Content Police Officers Police Staff Civilian Witnesses Accuracy of Typed Witness Statements National Standard Statement (NSS) English/Welsh Statements 10 REPORTING TO THE CROWN OFFICE AND PROCURATOR FISCAL SERVICE General Principles Standard Prosecution Reports Section 4 Summary Disclosable Summaries of Evidence Preparing Section 4 of the SPR Analysis of Evidence Associated Reports Case Management Future Developments Witness Criminal History Records Off-Duty Police Officers/Staff Witnesses Productions Production Definition Seizure of Productions Management of Productions

7.40 7.42 7.44 7.50 7.54 7.59

8.1 8.4 8.7 8.8 8.9 8.12 8.20

9.1 9.3 9.4 9.18 9.20 9.21 9.28 9.39 9.54

10.1 10.10 10.11 10.12 10.18 10.19 10.20 10.22 10.24 10.25 10.32 10.34 10.35 10.37 10.31

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10.37 10.39 10.41 10.43 10.47

COPFS Reporting of Cases Time Scale for Transfer of Productions to COPFS Defence Access 11 - SCHEDULES OF RELEVANT MATERIAL Introduction Triggers for Schedule Completion Reviewing Officers (RVOs) Types of Schedules Preparation of Schedules General Reviewing Process Non-Sensitive Schedule Non-Sensitive Schedule Completion GPMS marking Titles and Reference Numbers Schedule Content and Completion URN Material Type Description and Relevance Repetitive Material Where Lodged Note Generic Notes Date of Submission to PF EXC Y/N For COPFS Use RVO Completion Sensitive Schedule General Reason for Sensitivity Sensitive Schedule Completion GPMS Marking Title and Reference Numbers Content and Completion URN Material Type

11.1 11.5 11.11 11.14 11.19 11.20 11.21 11.33 11.36 11.38 11.39 11.41 11.43 11.54 11.56 11.58 11.60 11.63 11.64 11.68 11.69 11.71 11.75 11.80 11.84 11.85 11.86 11.88 11.89 11.94 11.96 11.97

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Description and Relevance Repetitive Sensitive Material Where Lodged Note

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Reason for Sensitivity * Date of Submission to PF EXC Y/N Scheduling of Criminal History Records on the Sensitive Schedule Highly Sensitive Schedule Submission of Schedules Time Scales Undertakings by RVO at Each of the Four Stages Naming and Numbering Protocol for Schedules Multiple RVOs and Schedules Transmission Amendment of Schedules Storage and Retention Major Crime Administration (HOMES & MIRSAP) Correspondence between Police & COPFS 12 - SENSITIVE AND INTELLIGENCE MATERIAL Introduction Government Protective Marking Scheme (GPMS) General Interpretation Reviewing and Assessment Process Summary v Solemn Proceedings Summary Solemn Types of Schedules Responsibilities Reporting Officer SIO Intelligence Officers Processes Intelligence Processes Analytical Products Relevance of Historic or Other Intelligence Material Retention of Intelligence Revelation of Intelligence Owned by Another Police Force or Agency Dealing with Sensitive Material that Satisfies the Materiality Test Consultation Highly Sensitive and CHIS Material Handling and security arrangements Automatic Number Plate Recognition (ANPR)

11.98 11.102 11.103 11.110 11.111 11.118 11.123 11.135 11.139 11.143 11.147 11.149 11.152 11.155 11.163

12.1 12.5 12.9 12.17 12.27 12.33 12.37 12.47 12.49 12.61 12.64 12.67 12.74 12.79 12.89 12.92 12.93 12.94 12.99 12.112 12.115 12.129 12.127

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13 - MAJOR INVESTIGATIONS Introduction Briefing/Debriefing HOLMES Investigations Non-HOLMES Investigations Sensitive Information Specialist Roles & Policy Files and Logs General SIO Policy Files Family Liaison Logs Crime Scene Manager Logs Interview Advisor General House to House Questionnaires Duty to Disclose RVO Responsibilities Reconciliation Inventory Statements Major Crime Reviews Principles of a Review Review Findings Revelation of Review Documents 14 - PROFESSIONAL STANDARDS AND DISCLOSURE Introduction Definition of Police Officers and Staff Criminal History Records (CHRs) The Police Officer/Staff CHS Database Procedures for Summary Cases Procedures for Solemn Cases (Schedules) Off-Duty Police Officers/Staff Witnesses Misconduct Information Conduct Constituting Misconduct Outcomes Misconduct Hearing Retention 15 DISCLOSURE BY ACCESS OF MATERIAL OR INFORMATION HELD BY THE POLICE Introduction 15.1 15.4 15.6 15.8 15.13 14.1 14.4 14.6 14.11 14.15 14.16 14.18 14.19 14.20 14.21 14.30 14.36 13.1 13.3 13.7 13.9 13.12 13.16 13.18 13.21 13.29 13.30 13.31 13.32 13.34 13.36 13.40 13.42 13.43 13.44 13.45 13.46 13.49

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Disclosure to the Defence Agent or Counsel Procedures to be followed when allowing agents access Disclosure to the Unrepresented Accused Prior to Arranging Access to an Unrepresented Accused

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Appendices A B C D E F G H I J K Glossary References ACPOS Recommended Records Retention Periods and Policy Guidance Schedules of Relevant Material Non Sensitive Schedules of Relevant Material Sensitive Schedules of Relevant Material Highly Sensitive Reviewing Process Generic Notes Reason for Sensitivity Schedule Undertaking Initial Report Schedule Undertaking Additional Information

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L M N O P Q R

Schedule Undertaking No Additional Information Defence Access to Information Held by the police Unrepresented Accused Access to Information Held by the Police National Standard Statement Government Protective Marking Scheme - GPMS 5x5x5 Intelligence Grading System Version Control

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Chapter 1

Overview of Disclosure
Introduction 1.1 In their statutory role as crime investigating agencies, the Scottish police forces act as agents of the Crown Office and Procurator Fiscal Service (COPFS), reporting the facts of investigations for the consideration of prosecution by way of a Standard Prosecution Report (SPR) or other agreed reporting template.The content of these reports facilitates prosecution decisions by COPFS, and they therefore must contain accurate summaries of the findings of police investigations, both for and against accused persons. 1.2 The decision as to what information should be disclosed to the accused is entirely the responsibility of COPFS. The police role in disclosure is one of revelation, i.e. to reveal to COPFS all material obtained or generated during the course of an investigation that may be relevant in order to ensure that the Crown is able to comply with its disclosure obligations. 1.3 The Crowns duty of disclosure has been firmly established at common law in a number of key cases which will be described in more detail later in this manual of guidance. It is also likely that the Scottish Parliament will legislate for disclosure (and revelation) in the near future, in which case this manual will be amended accordingly. 1.4 If the police service is to fully understand its duty of revelation, it is essential that officers have an understanding of the extent of the Crowns obligation to disclose material information to the defence. Disclosure Duty on the Crown 1.5 The overarching disclosure duty on the Crown is summarised in the Crowns Principles of Disclosure: I) The Crown is obliged to disclose all material information for or against the accused (subject to any public interest considerations). This relates to statements, but it also relates to all information of which the Crown is aware. II) Material means information which either materially weakens the Crown case or materially strengthens the defence case (disclosable information ) III) This legal duty exists in perpetuity.This means that the duty exists during the appeal process, and even where there is no live appeal for example, where such information comes to the attention of the Crown after conviction, or after an appeal has been refused.

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IV) Compliance with the duty requires the Crown to disclose all statements (as opposed to precognitions) of all witnesses on the Crown and defence lists, including section 67 notices. V) Compliance with the duty requires the Crown, without having to be requested to do so, to disclose all previous convictions, outstanding charges and direct measures for all witnesses on the Crown and defence lists, including section 67 notices except those convictions, charges or direct measures that are immaterial and sensitive. VI) Failure to disclose material information risks a miscarriage of justice. Disclosure carried out properly and timeously ensures that justice is done and prevents unnecessary trials and delay Put shortly, the Crown is obliged to disclose: a) Any information that forms part of the prosecution case. It is important to note that the Crown is not obliged to disclose all information obtained or generated during the investigation that is against the accused, only that information that the Crown intends to use at trial; and b) Any information obtained or generated during the investigation that is for the accused, i.e. materially weakens the Crown case or materially strengthens the defence case. 1.6 The Crown must disclose any information which meets the McLeod and McDonald test (also known as the disclosure test) subject to any public interest considerations. Such information may be received and/or held in various forms, and may include, for example: The content of phone calls or other conversations ; Information in text messages; E-mails, letters or faxes; Notes made in note books or other forms; Surveillance reports/logs; and Intelligence reports. 1.7 This list is not exhaustive and, importantly, it is the nature of any information which is significant and not the format in which it is held. The foregoing list highlights that the role of the police and the role of the Crown are inextricably linked, and a corporate approach to the issue is essential if the likelihood of a miscarriage of justice due to a failure of the disclosure process is to be minimised.

Chapter 1 Overview of Disclosure

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1.8 For the avoidance of doubt, the Crowns disclosure duty may encompass a negative finding. A negative finding may tend to strengthen the defence case or weaken the Crown case. For example, if analysis of an internal swab taken from a rape complainer does not disclose any foreign DNA, or the DNA of the accused, this would clearly have to be disclosed. Therefore, when the results of a forensic analysis are reported to the Crown, the Crown will disclose any negative findings to the defence. 1.9 As investigators, it is incumbent on the police to be fully aware of all matters likely to impact upon the ability of the Crown to fully discharge its disclosure obligations. 1.10 Conversely, where a new line of defence is intimated by the accuseds agent, the Crown must consider whether, in light of the information provided by the defence, information obtained or generated during the investigation which had previously been deemed not to meet the disclosure test, now falls to be disclosed. Similarly, the police must consider whether any information that had previously been deemed not to be relevant, may now be relevant in light of the line of defence. This may also require the police to examine the new defence and, where appropriate, establish new reasonable lines of enquiry and conduct a further review of all material held within the investigation. 1.11 The Crowns duty of disclosure is an ongoing duty which continues throughout trial diets and to the conclusion of any trial. It also continues through any subsequent appeal proceedings and even after the final disposal of a case. 1.12 Further detailed guidance may be found within the COPFS Disclosure Guidance Manual. Duty of Revelation on the Police Service 1.13 The police have a duty to submit to the Procurator Fiscal all material which may be relevant and that has been obtained or generated during the investigation. 1.14 Material which may be relevant will include information which appears may have some bearing on any offence under investigation or on any person being investigated, or on the surrounding circumstances of the case, unless that information is incapable of having any impact on the case. 1.15 It includes evidence which is essential to prove the prosecution case, evidence or information which might weaken the prosecution case, and evidence or information which might strengthen the defence case. It includes any information which would tend to exculpate the accused whether by weakening the Crown case or providing a defence to it.

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1.16 Discharge of this duty requires assessment of what may be relevant during and after all necessary investigation by the police. 1.17 In essence, the police duty is to reveal to the Procurator Fiscal all material obtained or generated during the investigation other than that which can have no bearing on the case against the accused, in order that the Crown can safely discharge its disclosure duty. 1.18 In terms of the ACPOS/COPFS Joint Protocol on Disclosure of Evidential Material in Criminal Prosecutions, material which may be relevant, will routinely include all witness statements (subject to any exceptions which, due to the scale of the enquiry, may be permitted with the agreement of the relevant Legal Manager within COPFS), all productions, and Criminal History Records (CHRs) of all witnesses in solemn cases and the witnesses that the Crown intends to cite for trial in summary proceedings. 1.19 In addition, the duty on the police to submit material which may be relevant extends to intelligence, irrespective of the source or covert methodology employed. 1.20 Material which may be relevant may also be found within a related investigation being conducted by a police force or other investigating agency. Examples could include: a related police investigation into the conduct of police officers involved in an ongoing police investigation/prosecution; an enquiry by the Area Procurator Fiscal into criminal allegations made by an accused (or other interested party) against a police officer who is a witness in an ongoing prosecution; a counter criminal complaint by the accused against the victim in an ongoing prosecution; or a parallel death investigation. Reporting of Criminal Investigations 1.21 The main reporting method utilised by the Scottish police service is the Standard Police Report (SPR), the contents of which reveal to COPFS the extent of the evidence against an accused person, the details of witnesses involvement and a list of productions in support of the evidence.The structure of the SPR has been developed to accommodate the electronic records management requirements of the Crown, which further supports both summary and solemn case reporting. 1.22 In the great majority of cases reported to COPFS, it will be the reporting officer who has the responsibility of addressing all revelation issues via the SPR. Full descriptions of all roles are contained within Chapter 5 of this manual.

Chapter 1 Overview of Disclosure

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1.23 Where the Crown proceeds by way of summary complaint and the accused pleads not guilty, all material which may be relevant will be revealed within the SPR or ancillary subject reports. Full witness statements as directed by the PF, relevant CHRs and any productions will also require to be submitted. 1.24 Where the case is marked for petition proceedings, full witness statements should be submitted along with CHRs for all witnesses and all productions. Schedules listing all material which may be relevant must also be submitted. Further guidance on the completion of schedules is contained in Chapter 11 of this manual. Consequences of Non-Disclosure 1.25 A failure by the Crown to disclose material information may result in a breach of Article 6 of the ECHR and constitute a miscarriage of justice. Clearly, therefore, the effective discharge of the police revelation role is essential if the Crown is to be in a position to fully discharge its disclosure obligations. Links Between Investigation and Disclosure 1.26 The investigation of crime and the disclosure process are inextricably linked and neither can exist in isolation if the prosecution of crime is to be transparent and fair. 1.27 At the heart of every investigation is a police obligation to pursue all reasonable lines of enquiry whether these point towards or away from the accused.

Criminal History Information 1.29 The Crown must obtain, and consider for disclosure, Criminal History Records (CHR) for all witnesses cited for trial in all cases, whether summary or solemn. This includes civilian witnesses, police witnesses, SPSA witnesses and any other professional, expert or official witness. 1.30 In solemn cases, the Crown will obtain the CHRs for all witnesses of which they are aware, not just those that the Crown intends to lead at trial.This is because the Crown must consider the records during the precognition process, at which stage it is not clear which witnesses will be cited.

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1.28 In the early stages of the investigation, it may not be clear what offences have been committed, whether a prosecution is likely to follow, or whether information obtained may be relevant. Following reasonable lines of enquiry, and recording and retaining all material relevant obtained or generated from the outset of an investigation, is regarded as best practice. Information that may initially be considered irrelevant must also be kept under review throughout the life of the case.

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1.31 Previous convictions and/or outstanding charges must be disclosed where they meet the disclosure test set down in McLeod and McDonald and as detailed in the Principles of Disclosure, i.e. where the conviction/charge materially weakens the Crown case or materially strengthens the defence case. Consultation with Solemn Legal Manager 1.32 Early communication between the police and COPFS is recommended to ensure that all parties meet their obligations. In an investigation of a serious nature, it is strongly advised that the Senior Investigating Officer (SIO) or Reviewing Officer (RVO) make contact with the relevant Solemn Legal Manager for the PF office to which any SPR will be reported, to ensure that the delivery of any reports and associated documentation is in the correct format and, where there is voluminous information, to agree any deviations from the normal procedures, as appropriate. 1.33 Doing this at the earliest opportunity does not in any way lessen the independence of the police in the investigation and decision-making process, but should be seen as a step to proactively address an essential part of the revelation and disclosure process. Appeal Proceedings 1.34 The disclosure process exists in perpetuity, and extends beyond the reporting stage up to, and in some cases after, the conclusion of the appeal process. 1.35 Additional enquiries can be generated as a result of new information coming to light. This information could come from the Crown, the defence, the police and in some instances from the public. No matter the source, the ultimate responsibility of the police is to reveal material which may be relevant and what may be material to the Crown at the earliest opportunity. If necessary, the police will progress reasonable lines of enquiry to ensure that the credibility of the revelation and disclosure process remains intact. In addition, as further information is identified, the police have a responsibility to review all existing information in light of this to determine its impact, if any, on previous decision-making in respect of the revelation and disclosure process. Diversity 1.36 Diversity is about valuing and respecting difference and recognising that different people have different equally valuable skills, experience and knowledge. 1.37 We recognise that understanding,promoting and respecting diversity are key components in creating greater, sustained, public confidence and trust in policing.

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1.38 The most widely accepted aspects of diversity are included in the Scotland Act 1998, the prevention, elimination or regulation of discrimination between persons on grounds of sex or marital status, on racial grounds, or on grounds of disability, age, sexual orientation, language or social origin, or of other personal attributes, including beliefs or opinions, such as religious beliefs or political opinions. 1.39 Understanding diversity has a direct impact on the quality of service we provide the public. Each of us has a personal responsibility to eliminate discrimination and promote good relations between different groups as we carry out our duties. We need to consider the various strands of diversity and determine whether these could in fact be relevant to an investigation and could impact on an accused person's ability to receive a fair trial, and then the guidelines outlined in this manual must be followed. 1.40 For example, if a witness has a learning disability which could cast doubt on the credibility or reliability of his or her statement or evidence which is to be adduced from him/her during a trial, then this must be revealed to COPFS. 1.41 As you will see later in this manual, the reporting mechanisms developed to meet the polices revelation requirements and the Crown's disclosure obligations have sufficient scope to address any diversity issues, whilst respecting any sensitive or personal confidentiality issues.

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Chapter 2

Key Definitions and Principles


Introduction
2.1 The rules for Disclosure of Evidence in criminal proceedings in Scotland are derived from Article 6 of the ECHR (the right to a fair trial) and recent decisions both by the Appeal Court and the Judicial Committee of the Privy Council which have refined and expanded the duty of disclosure which is placed on the Crown. Correspondingly, these decisions have had a significant impact in how the police conduct and report their findings of criminal investigations to COPFS. 2.2 As a result of the significant cases outlined later in this chapter, a number of changes to practices and procedures have had to be adopted in recent years to ensure that the Scottish police service and COPFS meet their respective revelation and disclosure obligations. 2.3 In addition, in 2007, Lord Coulsfield published a report on the Law and Practice of Disclosure in Criminal Proceedings in Scotland,which made a number of recommendations which impact variously on the Scottish Government, COPFS, the Scottish police service, Scottish Police Services Authority (SPSA) and other law enforcement agencies. 2.4 The Scottish Government is in the process of drafting legislation which will establish a statutory framework for disclosure. Enactment of the Criminal Justice and Licensing (Scotland) Bill is anticipated in 2010 and it is expected to place specific duties on both the Crown and the Scottish police service. This manual will be updated when this legislation comes into force. 2.5 The main consequences of Lord Coulsfield`s recommendations and the forthcoming legislation are that, in all criminal investigations conducted by the police and other investigative bodies in Scotland, reasonable lines of enquiry will require to be undertaken to identify all information either for or against the accused and all information which may be relevant will require to be accurately recorded, retained, reviewed and revealed to COPFS. 2.6 It is important that officers fully understand their investigative and revelation obligations and where these originate from. The definitions and the significant cases outline the origins of the recent changes to practice and procedures and are the basis of the duties and responsibilities, which are contained in this manual, to be carried out by police officers.

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Essential Definitions 2.7 The following list defines the most commonly used terminology within this manual and should be used as working definitions until they are enshrined in the forthcoming legislation. 2.8 Disclosure The process of the Crown providing the defence with: a) All material that forms part of the prosecution case; and b) Any other material obtained in the course of the investigation and any criminal proceeding which either materially weakens the prosecution case or materially strengthens the defence case.

This disclosure can be carried out either by the provision of copies of material or provision of access to the material. 2.9 Revelation Refers to the police advising COPFS of the existence of all material that may be relevant or providing the prosecutor with a copy of material which may be relevant that has been retained in the investigation. 2.10 Material Evidence

Chapter 2 Key Definitions and Principles

Evidence which either forms part of the prosecution case or would otherwise materially weaken the prosecution case or materially strengthen the defence case. 2.11 Schedules of Relevant Material Lists of material which may be relevant which are prepared by the police and provided to COPFS. 2.12 Relevant Material or Information Includes anything that appears to an investigator to have some bearing on any offence under investigation, or on any person being investigated, or on the surrounding circumstances, unless it is incapable of having any impact on the case. 2.13 Sensitive Material Includes any relevant material which if disclosed would be likely to: a) Cause serious injury, or death, to any person; or b) Obstruct or prevent the prevention, detection, investigation or prosecution of crime; or c) Cause serious prejudice to the public interest.

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2.14 Highly Sensitive Material Includes any relevant material which, if compromised, is likely to: Lead directly to the loss of life; Directly threaten national security; or Lead to the exposure of a CHIS. Note: There may be material that might not fall within this definition, but which, due to the GPMS marking that the material attracts, cannot be revealed to a precognoscer or legal manager because they do not hold the required security clearance.Correspondingly, such material must be included in the Highly Sensitive schedule and revealed to a member of COPFS with the required level of security clearance, i.e. Area Fiscal, Divisional Fiscal or District Fiscal.

2.15 Exculpatory Material Any material that is obtained or generated during the course of an investigation that could free the accused from blame or otherwise materially weaken the prosecution case or materially strengthen the defence case. Although not exhaustive, examples of information or material which could materially weaken the prosecution case, materially strengthen the defence case, or otherwise have the potential to exculpate the accused include: Evidence or information which may point to the conclusion that no crime has been committed or that no crime was committed on the date or at the place libelled for example, contradictory evidence of timings of last sighting of a deceased. Evidence or information which may contradict evidence (real or oral) on which the Crown case will rely for example, CCTV footage that fails to show the accused at a time and/or place where his/her presence would be expected. Evidence or Information which may cast doubt on the credibility or reliability of the Crown witnesses for example, previous convictions of a witness. Evidence or Information which may be inconsistent with scientific or other expert evidence on which the Crown will rely or with inferences which may be drawn from such evidence for example, trajectory of bullet in a shooting case. Evidence or information which may point to another person as perpetrator for example, forensic analysis of productions leading to identification of a third party. Evidence or information which might reduce the degree of seriousness of the offence for example, prognosis of victims injuries.

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The Key Principles and Relevant Case Law


2.16 The general principle of revelation was set down in Smith v HMA 1952 JC 66 which provides that: It is the duty of the police to put before the Procurator Fiscal everything which may be relevant and material to the issue of whether the suspected party is innocent or guilty. The judgement went on to state that it is not for the police to decide what is relevant and material, but to give COPFS all the information that may be relevant and material. 2.17 The general principles of disclosure are set down in the Appeal cases of McLeod v HMA and McDonald and Others v HMA. In addition, the decisions in Holland v HMA, Sinclair v HMA and Burns v HMA provide specific refinements to these general principles. McLeod v HMA 1998 SCCR 77 All material evidence for or against the accused must be disclosed, 2.18 This case established a duty on the Crown to disclose all material that would be of likely assistance to the defence. It concerned an application by the defence to recover questionnaires which had been completed at the request of the police by a large number of witnesses, the existence of which at that time was not routinely intimated to the defence. 2.19 The general principles established as a result of this case were that: I) The Crown has a duty at any time to disclose to the defence any information in its possession which would tend to exculpate the accused; II) If the defence is seeking an order from the Court to recover material, the basis upon which recovery is sought must be explained, and the court must be satisfied that the material would be likely to be of material assistance to the proper preparation or presentation of the accuseds defence. Sinclair v HMA 2005 SCCR 446 All police statements of witnesses that the Crown intends to call at trial are material and must therefore be disclosed. 2.20 This case was an appeal to the Privy Council. The appellant argued that his trial had been unfair as the Crown had failed to disclose statements given to the police by a key prosecution witness.The case involved an assault in which a hammer and scissors were used to inflict serious injuries on the victim. In her statement, the witness had only mentioned seeing a pair of scissors being used in the assault. At the trial, the witness said she had seen the accused strike the victim with a hammer and then stab him with a pair of scissors.

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2.21 The Privy Council held that there was an obligation on the Crown to disclose the police statements of all witnesses it intended to call at trial, in time for the defence to prepare for the trial, as these statements are always material. The failure to disclose the witness's statement had denied the defence the opportunity to effectively crossexamine the witness, which in turn resulted in the accused not receiving a fair trial in terms of Article 6 of the European Convention. Holland v HMA 2005 SCCR 417 All previous convictions and outstanding charges for witnesses that the Crown intends to call at trial are material and must therefore be disclosed. 2.22 This case involved an appeal under Article 6(1) of the ECHR, again to the Privy Council. It was based on the fact that the accused's trial was unfair as firstly the Crown had relied on dock identification. One witness had been told by a police officer that they had not done too well at an identification parade held before the trial.This was known to the Crown, but not disclosed to the defence. Secondly, the Crown had failed to disclose the then outstanding charges against key witnesses and the fact that some of those witnesses had outstanding charges against them. 2.23 Both of these failures were held by the Court to have had a bearing on one witnesss dock identification and it was held that the failures to disclose were incompatible with the accuseds Article 6 rights and had resulted in an unfair trial.

2.25 It should be noted, however, that this judgement did not consider the conflicting Articles 2 and 8 rights of witnesses and, as such, this has been interpreted as a requirement on the Crown to routinely and proactively disclose all material convictions and outstanding charges, i.e. those which are relevant to the case being heard.Although this was reiterated in the case of HMA v Murtagh 2009 UKPC 35 it was held that the Crown will disclose all criminal history information except those parts which are immaterial and sensitive. (see Murtagh case at 2.31) McDonald, Blair and Dixon v HMA 2008 SCCR 154 All material evidence which either materially weakens the Crown case or materially strengthens the defence case must be disclosed. 2.26 The appeals lodged in this case centred around non-disclosure of information to the defence, which the defence viewed as preventing their clients from receiving a fair trial in terms of article 6(1) of the European Convention on Human Rights. 2.27 The decision of the Privy Council confirmed that the Crown cannot give an absolute guarantee in every case that every single piece of information has been disclosed which ought to have been. It can, however, give an assurance in each particular case that to the best of its knowledge and belief there has been full disclosure;
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2.24 The court further held that the previous convictions and outstanding charges of all witnesses that the Crown intends to call at trial are material which is likely to be of assistance to the proper preparation and presentation of the defence and, as such, must always be disclosed.

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I) The Crown must disclose any statement or other material of which it is aware and which either materially weakens the Crown case or materially strengthens the defence case; II) In appeals proceedings, the Crowns obligation is to disclose any material relevant to the grounds of appeal, any material which should have been disclosed at an earlier stage, and any material which has become disclosable in light of developments in the appeal or which is disclosable and has only just come to the attention of the Crown. Thomson v Burns 2009 HCJAC 45 There is no obligation on the Crown to require police statements to be brought into existence purely so they can be disclosed to the defence. 2.28 This case involved an accused who had been charged with a contravention of section 5 of the Road Traffic Act. There were only two police witnesses to the incident. At the time, they made entries in their notebooks in respect of their involvement in the investigation, although they did not create statements.The Crown did not later request statements from the police and accordingly none were disclosed. The defence later argued that the Crown had failed to discharge its disclosure duty because no statements were disclosed. The Court dismissed the case on this basis. 2.29 The Crown successfully appealed this decision. The general principles established as a result of this case were that:

Chapter 2 Key Definitions and Principles

I) The disclosure duty on the Crown is to disclose information, not the form in which the information is held (except in relation to witness statements); II) The obligation on the Crown set down in Sinclair, requiring the Crown to disclose statements to the defence, did not extend to an obligation to require police statements to be brought into existence purely so they can be disclosed; III) A requirement to disclose entries in police notebooks (which are not witness statements taken from civilian witnesses) may exist where the information within the entry has not otherwise been disclosed, e.g. through the summary of evidence. 2.30 In other words, where a police officer makes notes about his/her involvement in an investigation, this must be contained within in the summary of evidence. Further, it remains the role of the Crown to request statements from the police where the Crown considers this to be necessary. HMA v Murtagh 2009 SLT 1060 the accuseds right to criminal history information of witnesses cited for trial is restricted only to those parts of the record that might materially weaken the prosecution case or materially strengthen the defence case. 2.31 This case involved an appeal to the Privy Council under Article 6(1) of the European Convention on the basis that the redaction by the Crown of the immaterial parts of the record was incompatible with the appellants right to a fair trial.

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2.32 The decision of the Privy Council confirmed that: I) The accuseds right to a fair trial only require disclosure of the material parts of the records; II) It was consistent with the right to a fair trial for the Crown to take the initial decision regarding the materiality of the record there should be a general working rule that only those parts of the criminal history that were likely to be embarrassing or damaging to the witness should be withheld if they did not satisfy the materiality test; III) Warnings by the procurator fiscal or measures offered and accepted as an alternative to prosecution by the prosecutor, police or a specialist reporting agency should be disclosed if they might materially weaken the prosecution case or materially strengthen the defence case; IV) The Crowns practice of disclosing material criminal history information of defence witnesses before trial was fully justified and should be maintained. 2.33 As can be seen from the content of the stated cases, the position of fairness and transparency is paramount to the investigation and prosecution of crime and this manual, along with guidance from COPFS, will ensure that the Scottish Police service meets these requirements. Data Protection Act 1998 2.34 All police forces are registered data controllers and have a notification lodged with the Information Commissioner to the effect that the police hold and process data for the following purposes: I) Crime prevention and detection of crime; II) The apprehension and prosecution of offenders; III) Protection of life and property; IV) Maintenance of law and order; and V) Rendering assistance to the public in accordance with force policies and procedures.

2.35 Accordingly, sections 29 and 35 of the 1998 Act enable the police to provide material to COPFS in compliance with the data protection principles. Firstly, section 29 allows the police to share this material with COPFS for the purpose of the prevention or detection of crime and the apprehension and prosecution of offenders. Secondly, as the above-mentioned cases place a legal obligation on the police to provide COPFS will all information that may be relevant, then section 35 of the 1998 Act applies, as the provision of this information to COPFS is required by rule of law. Accordingly, the police are obliged to provide this data to COPFS and are thus acting in accordance with the data protection principles set down in the 1998 Act.

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Chapter 3

Recording and Retention


Introduction
3.1 The duty to accurately record and retain all material or information which has been obtained or generated throughout a criminal investigation is essential to ensure that the police are in a position to comply with their revelation responsibilities and correspondingly that the Crown is able to meet its disclosure obligations. The police are under a duty to keep all decisions regarding relevancy under review. Accordingly, the duty to accurately record and retain material by necessity extends beyond only that material which is deemed relevant. It also extends to that material which has been assessed as irrelevant, as that decision must be reviewed throughout the life of the case. 3.2 Officers should also be aware that material or information pertaining to an investigation may have been previously recorded and retained outwith the general administration of an enquiry. It is important officers have knowledge within their respective forces of where to locate such material and be able to access it for reviewing purposes. 3.3 The retention of all material or information collated during an investigation must be in a durable format that is auditable and open to scrutiny. Each force must ensure that its own recording and retention procedures are compatible with the ACPOS Policy on the Disposal of Crime Records and Productions. 3.4 It is therefore essential that both these practical components of the process are adhered to and they should be viewed as integral parts of conducting a professional, open and transparent investigation.

Recording
3.5 All officers must be aware that in modern-day policing a significant amount of information is recorded in electronic format. However, manuscript documentation is still used to record information which may be relevant to an investigation and, if so, will require to be assessed for consideration of revelation to COPFS and subsequent disclosure to the defence. 3.6 Information recorded in manuscript format for example, statements recorded in officers' notebooks or on statement paper are best evidence and can end up being produced and led as evidence at court. (See Chapter 9 Statements.) Therefore, from a disclosure perspective, officers and police staff must ensure that, when ingathering and recording information that may be relevant to an investigation (particularly in manuscript format), it is recorded clearly, accurately and in a comprehensible format.

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3.7 Whilst the list of electronic databases or manuscript documentation where such information is recorded is not exhaustive and is dependent on individual force systems and practices the types of places where material or information may be found include: Incident Reports (Command and Control) Notebooks Manuscript Statements Case Related Documents Police National Computer (PNC) Criminal History System (CHS) Crime Reports Crime Files Custody Management Casualty Surgeon Reports Scottish Intelligence Database (SID) Policy Files (SIO, CSM, FLO etc) Interview Advisor Strategies and Plans Actions (HOLMES and MIRSAP Investigations) Messages (HOLMES and MIRSAP Investigations) Child Protection Referral Forms Missing Person Reports

Chapter 3 Recording and Retention

Vulnerable Persons Database ViSOR

3.8 As previously mentioned, this list is not exhaustive and officers, particularly Reviewing Officers, must be alive to the fact that potentially relevant material may have been recorded out with the administration of an investigation.

Lines of Enquiry
3.9 If an investigator is to fully comply with his/her investigative disclosure obligations, then the lines of enquiry, decisions and the rational for perusing a course of action must be accurately recorded and retained. It is essential that such disciplines are followed at all times and this should be viewed as a core responsibility in conducting a professional investigation.

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3.10 In particular, enquiries conducted into information which may materially weaken the prosecution case, materially strengthen the defence case, or have the potential to exculpate the accused must, along with the investigator's rational for pursuing that course of action, be recorded and retained for revelation to COPFS. 3.11 With the exception of major crime enquiries,where incident rooms have been established, and where lines of enquiry are recorded and retained within HOLMES2 and MIRSAP administration systems, it is the responsibility of each force to ensure that its own information recording policies and infrastructure have suitable functionality to record all enquiries conducted within a criminal investigation. (See Chapter 6, Reasonable Lines of Enquiry.) 3.12 No matter the systems used, there should be a clear audit trail to identify where these documents and all supporting evidence or information are stored and can be located.

Retention
3.13 The ACPOS policy on the Disposal of Crime Records and Productions details the differing retention time scales for relevant material and information and must be adhered to at all times, this is detailed within the ACPOS Recommended Record Retention Period schedule (See Appendix C). Individual forces have different practices and procedures for the storage and retention of crime records and productions, and guidance should be sought from individual force Records Managers and standard operating procedures (SOPs) in relation to this.

Retention of Intelligence held within the Scottish Intelligence Database (SID)


3.14 If an officer (Reporting Officer, Reviewing Officer, etc.) identifies that an intelligence log held within SID is relevant to an investigation and its existence is to be, or has been revealed to COPFS, then he or she should inform their relevant intelligence department/cell that the log has or is to be revealed and thereafter the Action taken field of the SID log should then be updated by an Intelligence Officer to that effect, and that the log requires to be retained. The Intelligence Officer will ensure that, if the weed period for that log has been set to one year, it will be changed to a minimum weed period of three years. The following form of words should be entered into the Action taken field in the SID log: "This log has been identified as being relevant material in relation to the summary/ solemn case against (name of offender), Police report Ref No (AB12345678) refers and has been revealed to the PF at (location). This log should be retained.

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Chapter 4

Responsibilities
General
4.1 The police have a statutory duty under the Police (Scotland) Act 1967, where an offence has been committed, to take all such lawful measures, and make such reports to the appropriate prosecutor, as may be necessary for the purpose of bringing the offender with all due speed to justice. Correspondingly, the primary aim of the police during a criminal investigation is to identify offender(s) by conducting lines of enquiry and identifying incriminating evidence. 4.2 However, at the heart of conducting a thoroughly professional criminal investigation, and a duty derived from disclosure, is the obligation to pursue, record and retain lines of enquiry, whether these point towards or away from the suspect. By conducting such enquiries and revealing relevant information obtained through such enquiries, to COPFS, the risk of the accused not receiving a fair trial and therefore a miscarriage of justice taking place is minimised. (See Chapter 6)

Reviewing Responsibilities
4.3 The police have a duty to record, retain, review and subsequently reveal to COPFS all evidence and information which may be relevant, which has been obtained or generated during a criminal investigation.Whether the investigation results in a case being prosecuted summarily or solemnly,, the duty to review all of this information must be discharged and is an essential part of the revelation and disclosure process. 4.4 The reviewing and assessing commitments are fundamentally identical in either volume or serious crime investigations, and should be viewed as an integral part of conducting a professional criminal investigation. Initial reviewing and assessing of information should, as far as is reasonably practicable, be undertaken prior to the submission of the Standard Prosecution Report (SPR), which will ensure that COPFS is in possession of all the information which may be relevant known at that time. 4.5 Quite clearly, in major crime investigations or where there is a large volume of material collated, a practical approach must be adopted and material should be prioritised for reviewing and assessing. In some cases, it may be unavoidable for information to be revealed to COPFS in stages, and this should always be done in consultation and agreement with the appropriate COPFS Solemn Legal Manager, having due regard to time scales.

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4.6 Additional procedures will apply for all solemn proceedings where, in addition to the SPR, schedules of relevant material must be completed and submitted to COPFS at various stages of the case. Where schedules are required, the reviewing process will be conducted in conjunction with schedule compilation. (See Chapter 11, Schedules of Relevant Material) 4.7 Dependant on the scale of the investigation, but in the majority of cases it is the responsibility of the Reporting Officer (RO) to collate all the information which has been obtained during a criminal investigation, regardless of whether the case is prosecuted under solemn or summary procedure. The RO must further ensure that, either during or after collation, the information is reviewed and assessed. 4.8 If a Reporting Officer or Reviewing Officer identifies a relevant intelligence log from the Scottish Intelligence Database during the reviewing and assessment process and its existence is to be revealed to COPFS, then this should be intimated to the respective intelligence cell or department to facilitate the extension of the weeding date (see 3.14 and 12.93) 4.9 If carried out during the collation of the information, any assessment must be reviewed after all information has been collated. This approach ensures that the Reporting Officer can submit an accurate account of the circumstances via the SPR to COPFS for consideration of prosecution. 4.10 In cases where a Senior Investigating Officer (SIO) has been appointed, it will be his/ her responsibility to determine whether a dedicated Reviewing Officer (RVO) or officers should be appointed to take responsibility for reviewing, assessing, schedule completion and revelation.RVO responsibilities are described later; however, the ultimate responsibility for ensuring that all relevant material has been revealed to COPFS will rest with the SIO/RO. (See Chapter 5, Role Descriptors)

Chapter 4 Responsibilities

Continuous Duty to Review


4.11 It is essential that material which has been obtained or generated during each criminal investigation is subject to continuous review to ensure that all information which may be relevant is accurately and timeously revealed to COPFS. This will ensure that both services can meet their respective revelation and disclosure obligations. 4.12 To ensure that this is achieved, the reviewing and assessment of all information will commence at the outset of and continue through the life of the investigation, reporting process, prosecution preparation, trial, conviction and conclusion of any subsequent appeal.This should not be seen as a new concept, but should be viewed as a formalisation of the normal professional and transparent manner in which the Scottish police service conducts its business.

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4.13 It is relatively common, particularly in major crime investigations, for further information to come to light after the submission of the initial SPR (or initial schedules). Such information which may have been obtained or generated as a result of conducting further lines of enquiry, intelligence received or forensic results etc must be reviewed as per the reviewing and assessing process with all relevant material being described on an appropriately protectively-marked subject report for summary cases or via schedules in solemn cases. 4.14 SIOs and ROs should also be aware that all other material already held/generated and assessed may require to be re-assessed, as material previously considered to be irrelevant may become relevant, at anytime during the investigation or prosecution process. For example the defence could lodge a special defence or intimate a different line of defence to COPFS. If a further review of material is required as a result of this, then it will be communicated to the RO or SIO by COPFS. 4.15 It is essential that officers are aware that material which may be relevant to a criminal investigation may be recorded and retained in a variety of formats. Information is recorded and retained on a number of different electronic systems (Command and Control, custody records, CHS etc) or in manuscript format (notebooks,NSS statements, Casualty Surgeon reports etc). Also, productions are often stored in different areas and may have been submitted to SPSA for forensic analysis; equally material which may be relevant may be held by another force or agency or even internally by another department. Every effort must be made to identify this material, review and assess it, so that all relevant material can be accurately described and revealed to COPFS. If the reviewing process has not been conducted or material is unable to be accessed for whatever reason, then this fact must be transmitted to COPFS.

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Chapter 5

Role Descriptors
Introduction
5.1 In general, all staff under the command of the chief officer of the police force or other law enforcement agency in which they serve, at some stage, may encounter processes that draw them into the criminal disclosure arena. It would not be feasible to describe every role in the process, so the following descriptors focus on those roles that are seen as essential to the completion of the police revelation function.

Chief Constable
5.2 The chief officer of police for the area where any crime is to be investigated has the responsibility to establish and maintain a management structure which ensures the discharge of police obligations in terms of criminal disclosure. 5.3 From the outset of any criminal investigation, the management structure must be identified and the details of the Senior Investigating Officer (SIO) or Reporting Officer (RO) and the Reviewing Officer (RVO) recorded. 5.4 The SIO, RO and RVO are three distinct roles within an investigation and have unique functions associated with their area of responsibility although, depending upon the scale of the enquiry, all could potentially be undertaken by the same officer.

5.5 In general terms, the reporting officer has overall responsibility for the conduct of an investigation where an SIO has not been appointed. ROs are not confined to reporting summary cases and may report cases to COPFS which end up being prosecuted in the solemn courts.

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Reporting Officer (RO)

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5.6 Depending on the scale of the enquiry, the RO will carry out a range of differing functions and have overall responsibility for: Conducting lines of enquiry Recording and retention of relevant material Production management Compilation of accurate SPR Ensuring timeous submission of statements and productions to COPFS Submission of additional information to COPFS Conducting enquiries as directed by COPFS. 5.7 This list is not exhaustive and in addition they will be required to review material as per the three-stage assessment process described later and ensure that all material which may be relevant either for or against the accused is transmitted to COPFS via the SPR or subject report in summary cases and via the SPR and schedules in solemn cases.

Senior Investigating Officer (SIO)


5.8 The Senior Investigating Officer (SIO) is responsible for the direction and conduct of a major criminal investigation, and is accountable for the investigative strategies and associated policy decisions. 5.9 More specifically, in relation to disclosure, the SIO has particular responsibilities in relation to:

Chapter 5 Role Descriptors

I) appointing Reviewing Officer(s); and II) the recording and retention of material which may be relevant; and III) ensuring that all material which may be relevant is revealed to COPFS. General Responsibilities 5.10 The SIO must ensure that tasks delegated to police staff or other persons participating in the investigation have been carried out with due consideration to the obligations imposed on the police service in relation to disclosure.

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5.11 The SIO must also ensure that all investigators working on his/her behalf during any criminal investigation are made aware that they are responsible for the recording and retention of materials which may be relevant, including negative material resulting from the forensic examination of productions.These officers must make such material available to the RVO. Appointment of Reviewing Officer (RVO) 5.12 At an early stage in the investigation, the SIO must appoint a RVO. This will involve determining: I) if a dedicated RVO is required; II) if an officer already involved in the investigation can take on the additional role of RVO; III) whether an RVO is required for intelligence material (situated on the secure side of the intelligence firewall); IV) if multiple RVOs are required; and V) the identity of the principal RVO with overall responsibility for revelation.

5.13 Where the SIO identifies a need for more than one RVO to be appointed to an investigation, the SIO must clearly articulate and record within their policy file the role of Principal Reviewing Officer to ensure that the SIOs revelation obligations to COPFS are complied with in full. 5.14 When deciding who should be appointed as RVO, the SIO must ensure that an individual is not appointed as RVO, or permitted to continue in that role, if the appointment is likely to result in a conflict of interest. 5.15 The advice of a more senior officer must always be sought if there is doubt as to whether a conflict of interest precludes an individual acting as RVO. If thereafter the doubt remains, the advice of the Procurator Fiscal should be sought. 5.16 It is essential that, throughout the investigation, the SIO liaises closely with the RVO to ensure that he or she has discharged his/her responsibilities timeously, efficiently and effectively. This is particularly important where there are multiple RVOs (including those situated on the secure side of the intelligence firewall), as the SIO has overall responsibility for ensuring that there is communication and close liaison between the RVOs. This is critical to ensuring that material is properly assessed by the appropriate RVOs. Poor communication between the RVOs could result in material being assessed as irrelevant when it is, in fact, material which may be relevant and accordingly has to be revealed to COPFS.

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Recording and Retention of Relevant Material 5.17 The SIO must ensure that the appropriate information management structure is implemented in relation to the recording and retention of material obtained during the course of an investigation, and this should be done in accordance with the ACPOS Policy and Guidance on the Disposal of Crime Records and Productions. (Appendix C) 5.18 The SIO must ensure that all reasonable and practicable steps are taken to recover any material that was previously inspected, but not retained if, as a result of developments in the case, the material later becomes relevant. 5.19 While tasks may be delegated to other investigators, the SIO will retain overall responsibility for ensuring that the duties relating to revelation and disclosure are properly carried out. 5.20 The SIO must ensure that all reasonable lines of enquiry, whether pointing towards or away from a suspect, are investigated and that the outcomes of these enquiries are carefully recorded. Where material is held on a computer, the SIO must decide which material it is reasonable to inquire into.This may require close consultation with COPFS. 5.21 Where the SIO believes that other persons or agencies may be in possession of any material which may be relevant to their investigation, he or she should instruct the RVO to ensure that such persons or agencies are aware of the potential future requirement for production of that material and to establish agreed terms of reference in relation to the retention and future revelation of the material. The SIO must also ensure that this matter is communicated to COPFS to enable the Crown to discharge its disclosure obligations. 5.22 There is no requirement to make speculative enquiries; there must be some reason to believe that the persons or agencies concerned hold material which may be relevant. 5.23 It is the SIOs responsibility to ensure that any unrecorded material which may be relevant to a criminal investigation is subsequently recorded in a durable or retrievable format. 5.24 A record should be made of information at the time at which it is obtained or as soon as is practicable thereafter.There is no requirement to take a statement where it would not otherwise be taken; however, a clear audit trail for the material is required in case an issue arises in the future. Where material which previously has been examined, but not retained, becomes relevant, the SIO must take steps to obtain it or ensure that it is retained.

Chapter 5 Role Descriptors

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5.25 The duty to retain material includes: crime reports of all descriptions; notebooks; incident logs (Command and Control); scene entry logs; written and typed witness statements; productions retained; policy logs (SIO, FLO etc); audio/visual recordings (CCTV etc); intelligence; custody records (detention/arrest/Casualty Surgeon reports etc); records derived from tapes or telephone messages; interview records in any form with witnesses, potential witnesses or suspects; results of forensic analysis, or specialists reports, including negative results; any material casting doubt upon the reliability or credibility of a witness, and any other material which may be relevant to the investigation.

Revelation of Relevant Material to COPFS 5.27 The SIO will also be responsible, through the RVO(s), for ensuring that all material which may be relevant, which has been obtained or generated as a result of the investigation is revealed to COPFS through the agreed procedures (SPR, Subject Reports, and Schedules of Relevant Material). See Chapters 10 and 11.

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Chapter 5 Role Descriptors

5.26 In addition, the duty to retain material which may be relevant to the investigation includes in particular the duty to retain material which may satisfy the test for disclosure. For example, information provided by the accused which indicates an explanation for the offence with which he or she is charged; witness testimony that contradicts the account of the victim; material casting doubt on the reliability of a confession or a prosecution witness. These are only some examples of the types of material that might materially weaken the prosecution case, materially strengthen the defence case, or otherwise have the potential to exculpate the accused.Where such material exists, it must be revealed to COPFS at the earliest opportunity. Failure to reveal this information to the Crown will in turn mean that the Crown cannot satisfy its disclosure obligations and could result in a miscarriage of justice.

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Reviewing Officer (RVO) 5.28 Every case reported to COPFS for consideration of prosecution must have a nominated RVO. In most cases this will be the reporting officer who will collate all the information which has been obtained during a criminal investigation, regardless of whether the case is prosecuted under solemn or summary procedure.The reporting officer must further ensure, either during or after collation, that the information is reviewed and assessed. 5.29 If carried out during the collation of the information, any assessment must be reviewed after all information has been collated. This approach ensures that the Reporting Officer can submit an accurate account of the circumstances via the SPR to COPFS for consideration of prosecution. In the majority of cases reported to COPFS, the RO will also be the RVO. The details of this officer should be communicated to COPFS via the remarks section of the SPR. 5.30 As previously explained, in cases where a Senior Investigating Officer (SIO) has been appointed, it will be his or her responsibility to determine whether a dedicated Reviewing Officer or Officers should be appointed to take responsibility for reviewing, assessing, schedule completion and revelation. The Three-Stage Assessment Process 5.31 The reviewing and assessing process is a three-stage process and will involve examining, inspecting and viewing or listening to all the material that has been obtained or generated during the course of the investigation to determine whether it is: 5.32 Relevant Material or Information includes anything that appears to an investigator to have some bearing on any offence under investigation, or on any person being investigated, or on the surrounding circumstances, unless it is incapable of having any impact on the case.

Chapter 5 Role Descriptors

5.33 Sensitive includes anything likely to (a) give rise to the risk of serious injury, or death, to any person; (b) obstruct or prevent the prevention, detection, investigation or prosecution of crime; or (c) cause serious prejudice to the public interest. 5.34 The nature and level of sensitivity also needs to be determined, i.e. is it information which, if compromised, would be likely to 1) lead directly to the loss of life; 2) directly threaten national security; or 3) lead to the exposure of a CHIS. The level will determine whether it requires to be included in a highly sensitive schedule only to be viewed by COPFS/police staff with a particular level of security clearance. (Further details on highly sensitive schedules are described later in this manual See Chapter 11.)

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5.35 Exculpatory Material any material that is obtained or generated during the course of an investigation that could free the accused from blame or otherwise materially weaken the prosecution case or materially strengthen the defence case. 5.36 This three-stage assessment assists both the officer conducting the review and ultimately COPFS in determining how material should be recorded and revealed and whether or not it is material evidence and thus requires to be disclosed to the defence. 5.37 The final decision on whether information is relevant, sensitive and/or exculpatory rests with COPFS. 5.38 If practicable, prior to the submission of the SPR, the following questions should be posed when reviewing material: I) Is the material relevant, i.e. is there a possibility that it could have a bearing on the case? 5.39 If the answer is NO, there is no requirement to reveal the existence of the material to COPFS; or 5.40 If the answer is YES, then it must be revealed to COPFS and be accurately recorded or summarised within the appropriate section of the SPR, subject report, or in the appropriate schedule in solemn cases. II) Is the relevant material sensitive? 5.41 If the answer is NO, then the information should be revealed to COPFS via the appropriate section of the SPR, e.g., summary of evidence, list of productions or, in solemn cases, additionally in the non-sensitive schedule; or

III) Could the material weaken the prosecution case, materially strengthen the defence case, or otherwise have the potential to exculpate the accused?

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5.42 If the answer is YES, then the level of sensitivity must be considered, i.e. should it be classified as sensitive or highly sensitive? If it is sensitive, then its existence can be revealed to COPFS using the remarks section of SPR in summary cases, indicating why it is sensitive or on an appropriately marked subject report (Restricted). Where it is a solemn case, the information should additionally be detailed in the sensitive schedule. If the information is highly sensitive (i.e. above the level of a restricted marking), then it should be revealed to the appropriate COPFS staff again, outlining why it is sensitive. (See Chapters 11 & 12.) In summary cases, this will be in the form of a confidential (or above GPMS marked) subject report. In solemn cases, it will be done in the form of a highly sensitive schedule.

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5.43 If the answer is NO, then no further action is required beyond that which is listed above; or 5.44 If the answer is YES, then, where the material is not sensitive, it should be highlighted as exculpatory or potentially exculpatory in the Summary of Evidence (Section 4) of the SPR (or subject report if identified after the submission of the SPR). If the material is sensitive, it should be inserted in the remarks section of the SPR, highlighting the reason for its sensitivity and the reasons that it is considered to materially weaken the prosecution case, materially strengthen the defence case, or otherwise have the potential to exculpate the accused. Again if this information comes to light after the submission of the SPR, then an appropriately marked subject report should be submitted giving all the aforementioned details. In addition, reference to this should be made in the appropriate column of the schedule(s) where solemn proceedings have been initiated. If conducting this process as part of a major investigation, it will be the responsibility of the RVO to inform the SIO immediately of any such material. 5.45 Note: If information is sensitive (or highly sensitive) and the view is taken by COPFS that it meets the disclosure test, i.e. it is to be used by the crown at trial to prove the case or it is information that could materially weaken the prosecution case, materially strengthen the defence case, or otherwise have the potential to exculpate the accused. Then COPFS will either disclose the material or consider whether it should be withheld in the public interest. Although the final decision on whether to withhold material information rests with COPFS, this may (depending on the nature of the material COPFS is seeking to withhold) be done in consultation with the Reporting, Reviewing, Senior Investigating Officer or a senior intelligence officer (Director or Deputy Director of Intelligence). 5.46 Should further information come to light after the submission of the SPR, up to and beyond the trial, then the reviewing and assessment process must be repeated prior to revelation to COPFS.

Chapter 5 Role Descriptors

5.47 This will require all material to be reviewed again, not just the material that has come to light, as it is possible that as a result of this new information, material that had previously been assessed as being irrelevant (and therefore has not been revealed to COPFS) will now be relevant and will need to be revealed. Revelation to COPFS after the SPR has been submitted should be done via an appropriately protectively marked subject report in summary cases and via schedules in solemn cases. 5.48 As a matter of best practice, in solemn cases, the Reviewing or Reporting Officer should also discuss the existence of the new material with the Precognoser in advance of submission. 5.49 A schematic of the reviewing process is shown at Appendix G.

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Review Process for Schedule Completion 5.50 When an SPR has been submitted to COPFS and a decision is made to initiate solemn proceedings, or when it is reasonably anticipated that an investigation will result in solemn proceedings being instigated, all relevant material which has been obtained or generated throughout the enquiry must be recorded on one of the following schedules: Schedule of non-sensitive relevant material Schedule of relevant sensitive material Schedule of relevant highly sensitive material 5.51 The three-stage reviewing and assessment process as previously described above must be undertaken and a description of the material being inserted should be included in the appropriate column. It is essential to the revelation and disclosure process that the description listed in the schedules is accurate. 5.52 A poorly described piece of information could result in COPFS requesting further details of the information or, where necessary, submission of the actual documentation. 5.53 It could also result in material not being disclosed which should have been, which in turn could lead to a miscarriage of justice. For further details on how to complete schedules, see Chapter 11. Responsibilities of Dedicated Reviewing Officer(s) 5.54 In an investigation where an SIO has been appointed and it is anticipated that a large amount of material will be obtained and/or it is anticipated that a prosecution will follow under solemn procedure, the SIO may elect to appoint a dedicated Reviewing Officer or Officers to deal with all revelation and disclosure issues.

5.56 However, RVOs should be identified and appointed at the earliest opportunity (whether dedicated or not) and the fact that a decision has been made to appoint such officer(s) should be recorded in the SIOs policy file detailing their identities.

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5.55 The SIO must consider a number of factors when determining whether an officer could fulfil a dual function, e.g. productions officer and RVO, or whether a dedicated officer needs to be appointed. Factors such as the volume of material, time scales and resource availability must be taken into consideration.

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5.57 It will be the responsibility of the dedicated RVO(s) to: Identify and ensure that there is a record of all the material obtained or generated during the investigation; Identify if there are any linked or parallel investigations that are,or have been conducted by other forces/agencies and liaise with them to establish whether they hold any material which may be relevant; Ensure that if a relevant intelligence log exists within SID and its existence is to be revealed, that its revelation is notified to the appropriate intelligence cell/department (see 3.14 & 12.93) Review and assess the material as per the three-stage process; Create the appropriate schedules that fully and accurately describe the material (see Chapter 11); Liaise with and reveal schedules to COPFS; Review the schedules and the retained material continuously throughout the life of the investigation (to include post-arrest enquiries) and provide updates to COPFS at the agreed stages of the investigation; Identify any additional material to COPFS by means of supplying updated schedules and copies of relevant material not previously revealed; When requested, submit copies or arrange for COPFS to have access to inspect the retained material; Where multiple RVOs have been deployed and an officer has been appointed as the principle RVO, to develop a strategy for collation of all relevant material and ensure a coordinated approach is adopted. The principle RVO will act as the single point of submission for all schedules and subject reports. Facilitate defence access on instruction of COPFS; and

Chapter 5 Role Descriptors

Deal with any revelation and disclosure issues during the investigation, prosecution preparation, the trial and any appeal process.

5.58 Quite clearly, all of the above will be underpinned through close communication and consultation with COPFS. The relevant member of COPFS staff who will be involved in the prosecution case preparation should be identified by the RVO at the earliest opportunity. 5.59 This liaison between the RVO and COPFS throughout the investigation and prosecution process is essential to ensure that both the police and COPFS comply with their respective revelation and disclosure obligations. 5.60 RVOs must have a full understanding of the investigation and should have unrestricted access to all the material (subject only to the GPMS classification for highly sensitive material).

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They must work closely with the SIO and deputy SIO, and ideally should themselves be experienced investigators who have the skills and undergone the appropriate training associated with this role. 5.61 In major crime investigations or enquiries that are anticipated to require the collation of a significant amount of material and when it is reasonably anticipated that the investigation will result in solemn proceedings, it is strongly recommended that the reviewing/assessing process and schedule completion are started at an early stage. 5.62 With regard to any major investigation, the RVO will always be situated within the MIR and will be sighted exclusively on sanitised material. Recording, reviewing and revealing unsanitised material will be conducted within the relevant area of police business (see Intelligence RVO). 5.63 The experience of disclosure officers in England and Wales has identified that they are regularly called as defence witnesses, so ensuring that firewalls are maintained will protect the integrity of the investigation. Multiple RVOs 5.64 The SIO is responsible for ensuring that sufficient resources are deployed to the RVO role commensurate with the size and complexity of the investigation, and for ensuring that the task is completed competently. 5.65 For instance, there may be circumstances where more than one dedicated RVO is required.This could be, for example, because of the volume of material gathered or by the nature of a linked series of investigations.The SIO(s) of the investigation(s) will need to consider whether it is necessary to appoint more than one officer to ensure that the reviewing, assessing, schedule completion and revelation process is professionally undertaken within the prescribed time scales. In these circumstances a principle RVO should be appointed by the SIO who will ensure collation of all relevant material and adopt a coordinated approach to revelation to COPFS. 5.66 Where there is a series of linked investigations and there are multiple RVOs deployed across the investigations, a principal RVO of suitable rank should be identified and used as the single point of contact with COPFS, although COPFS must be advised of the existence of the additional RVOs and must have access to them if they require this.The principal officer will ensure that a corporate and coordinated approach is achieved and that all material which may be relevant across the investigations is properly administered and revealed to COPFS.

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Intelligence RVOs 5.67 In major crime investigations where an incident room has been established, the enquiry can often be supported by an Intelligence Cell. There may be some highly sensitive material which, due to its nature and protective marking, is unable to be passed to the operational side of the enquiry. 5.68 Similarly, there may be highly sensitive material which, as source documentation, sits behind the sanitised material which has been fed into the incident room, the unsanitised material being retained within the cell. 5.69 At an early stage of such an investigation, consultation should take place between the SIO and the intelligence cell manager, and a policy decision taken as to whether a separate and distinct dedicated RVO should be appointed to deal with highly sensitive material on the intelligence side of the firewall. It may be that a member of staff within the cell could fulfil the role of RVO along with other duties. As before, factors such as the volume of material and time scales must be taken into account when making this decision. 5.70 Likewise,in large-scale intelligence-led operations,intelligence staff will process intelligence product as necessary for the investigation. Again, early consideration will need to be given to the need to appoint a dedicated RVO or RVOs on the intelligence side to deal with the highly sensitive material. 5.71 The responsibilities of RVOs within the intelligence arena are no different to that of the RVOs on the operational side. They must follow the same reviewing and assessment processes and record the sensitive information on the appropriate schedule. (This will usually be the highly sensitive schedules. (See Chapter 11 for full guidance.) 5.72 They must also work closely (ensuring that they do not breach the firewall) with the operational RVO(s) to ensure that there is no duplication of work and to ensure that the operational RVO(s) have sufficient information to make an informed and accurate assessment of the information. They must also follow the guidelines on the revelation of sensitive and highly sensitive material which is outlined in Chapters 11 & 12 of this manual. 5.73 In the event of a highly sensitive schedule being completed as part of an enquiry, a suitably trained officer (RVO) situated within the specialist area where the relevant material has been generated/collated will complete this. Again and in particular where highly sensitive material is involved, the intelligence RVO(s) must liaise with COPFS at the appropriate level and deal with all matters relating to revelation of such sensitive material. 5.74 The SIO must ensure that the operational RVO(s) appointed for the investigation is not exposed to any unsanitised material. Exposing an RVO to this material may create potential difficulties at trial and could compromise the security of the unsanitised material.

Chapter 5 Role Descriptors

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HOLMES 2 RVOs 5.75 When investigations are conducted using the Home Office Large Major Enquiry System (HOLMES2), the RVO(s) will be an integral part of the Major Incident Room (MIR).They must have received specific training in the HOLMES2 disclosure facility and must have completed training in the role of RVO for the purpose of reviewing, assessing, schedule completion and revelation of relevant material to COPFS.

5.76 By their very nature, HOLMES2 enquiries are likely to generate a vast amount of documentation. Therefore, the RVO(s) should be appointed at the beginning of the enquiry to ensure that they are aware of all aspects of the case and can start to assess the material at the earliest opportunity. 5.77 The HOLMES2 disclosure facility is currently being developed to ensure that the RVO has access to material for revelation purposes. This includes: Actions; Electronic Transmissions; Productions (Exhibits); House to House Documentation; Interviews; Messages; Other Documents; Officer Reports; Personal Descriptive Forms (PDFs); Questionnaires;

5.78 The facility will also create the schedules which the RVO will populate throughout the reviewing and assessing process. Full guidance and training on this facility and on the role of an RVO within a HOLMES2 incident room is being developed and will be available in the near future. Major Incident Room Standardised Administrative Procedures (MIRSAP) RVOs 5.79 Where an investigation is conducted using MIRSAP (paper-based manuscript administrative system), again an early decision must be taken by the SIO on whether to appoint a dedicated RVO or otherwise.The role and responsibilities of the RVO deployed within a MIRSAP system will mirror those outlined previously in this section and that of the HOLMES2 RVO. Ideally, the appointed RVO should have a good knowledge of the MIRSAP system and be an experienced investigator.

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Statements.

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Police Staff 5.80 All police staff engaged in any public facing role as a direct result of the execution of their duties must ensure that all information that they receive, either directly or via any electronic medium, is recorded and retained and revealed to the appropriate investigator as soon as reasonably practical. Failure to adhere to this direction is likely to severely impact upon the service's investigatory and revelation obligations. 5.81 Examples of these roles, whilst not exhaustive, are: Call Centre Operators Reception Staff Custody Staff Production Officers 5.82 If in doubt about any information received, members of staff should seek immediate guidance from police officers or their line managers.

Chapter 5 Role Descriptors

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Chapter 6

Reasonable Lines of Enquiry


Introduction
6.1 In the early stages of an investigation, it may not be clear that a specific offence has been committed, whether a prosecution is likely to follow and whether material obtained or generated may be relevant or not. Following reasonable lines of enquiry involves the exercise of considerable professional expertise, judgment and common sense.

What Is a Reasonable Line of Enquiry?


6.2 Although there is no set definition as to what constitutes a reasonable line of enquiry, it is fair to say that any line of enquiry generated during the course of an investigation which is proportionate to that investigation will at some stage be classed as reasonable until it is reviewed in conjunction with all available information. 6.3 What is deemed as reasonable is wholly dependent upon the circumstance of each enquiry.Would it be proportionate to use up valuable police resources to take statements from 50 people who were in a public house where a common assault had taken place and had only been seen by three witnesses? Whereas, if it was a murder investigation, the interview of all persons present would be important to pursue as this may yield some small, but potentially significant information. 6.4 However,during any investigation,should an officer become aware that there is information or evidence which could weaken the prosecution case, strengthen the defence case or potentially exculpate the accused, then he or she must consider its existence within the context of the investigation and, by applying professional judgement, supported by sound reasoning, which he/she must accurately record, decide how far to pursue this line. Information of this nature (exculpatory) must be revealed to COPFS for their consideration of disclosure to the defence. 6.5 Again, for example, would it be a proportionate use of police time to pursue anonymous information which implicated another individual for an assault when the accused has been captured on CCTV committing the assault, been identified by two credible witnesses and admitted the offence? 6.6 It is therefore essential that as investigators,the police,from the outset of any investigation, identify and record realistic enquiry parameters that can be, if necessary, reviewed as and when new information is identified to ensure that the focus of their enquiries captures the entire relevant evidential picture to support any report that will be submitted to COPFS.

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6.7 Whatever decision is taken by an officer, this must be recorded and retained detailing why such a decision was made. 6.8 That is not to say that all non-relevant information should be confined to history. The reviewing of information is conducted in perpetuity throughout the course of and up to the end of an enquiry, through COPFS case preparation, trial and, in some instances, even after conviction and subsequent appeal. It must be borne in mind that further information may come to light throughout any of these stages, rendering previous irrelevant material relevant, therefore information should not be disregarded unless it is manifestly irrelevant. 6.9 The creation of reasonable lines of enquiry will, in many instances, be self-generated as the investigation unfolds. Information supplied by witnesses, seizure of productions, results of forensic analysis, intelligence reports, CCTV etc provide information from which further lines of enquiry are generated to progress the enquiry or identify or eliminate suspects.

Who Decides What a Reasonable Line of Enquiry Is?


6.10 In the main, it is the Reporting Officer (RO) or Senior Investigating Officer (SIO) of an investigation who has the responsibility to decide what constitutes a reasonable line of enquiry. During the initial phase of an investigation where there is no immediate suspect, the RO or SIO may explore hypotheses as to the person(s) responsible, which may mean the ingathering of numerous items of information. Only once clear lines of enquiry are established should the police begin to focus on and consider what is and what is not relevant to the investigation. 6.11 This principle is set out in Smith v HMA, i.e. clearly, in reporting the results of their investigation, the police must exercise a power of selection. It would be absurd to suggest that all their results should be submitted. It is important that this concept is grasped by the police and COPFS. Failure to fully understand this principle would create a significant burden on the police and COPFS that would impede police and COPFS in performing their primary duties. 6.12 There may also be instances when COPFS instructs the police to conduct lines of enquiry to assist with prosecution preparation, or they have come into possession of information which requires further investigation to prove the case, refute a line of defence or clarify ambiguous matters. Officers should adopt the same professional approach to such requests and conduct these enquiries in a thorough manner, recording, retaining and revealing all relevant information to COPFS. This approach will ensure that the transparency and integrity of the investigation remains intact. 6.13 It is important for ROs and SIOs to have a clear understanding of the decision-making process from the outset of an investigation, as the completion and recording of what lines of enquiry they have pursued and to what extent may well form part of the evidence which may be used or which they will have to provide at any subsequent trial.

Chapter 6 Reasonable Lines of Enquiry

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Chapter 7

Investigations involving Forensic Examination or Analysis


7.1 This chapter provides guidance on the practices and procedures to be adopted when dealing with material that has been obtained,seized,generated or recorded during criminal investigations and submitted to either the Scottish Police Services Authority (SPSA) or other experts for the purpose of forensic examination or analysis. By following these guidelines, the police will be in a better position to comply with their investigative and revelation obligations and correspondently assist the Crown in fulfilling its disclosure obligations. 7.2 This guidance should also be read in conjunction with Chapter 10 of this manual; Reporting to COPFS; The Joint Protocol between ACPOS and COPFS, Disclosure of Evidential Material in Criminal Proceedings, Part Two Productions; and the National Forensic Science Protocol. 7.3 At the heart of conducting a thorough professional criminal investigation, and a duty derived from disclosure, is the investigative responsibility to pursue reasonable lines of enquiry whether these point towards or away from the suspect. Conducting such enquiries and revealing all potentially relevant information obtained from them to COPFS will reduce the risk of the accused receiving an unfair trial and therefore a miscarriage of justice occurring. 7.4 Forensic examination or analysis of articles, samples, impressions, images or recordings which have been obtained, seized or generated during criminal investigations are well recognised methods by which the police conduct lines of enquiry and progress investigations. This can assist enquiries in a number of ways: Identifies evidence (or intelligence) Can corroborate existing evidence Can implicate or eliminate an individual from an investigation Identifies other lines of enquiry 7.5 Importantly, it must also be recognised that results of forensic examination or analysis, including negative results, may materially weaken the prosecution case, materially strengthen the defence case or otherwise have the potential to exculpate the accused. Therefore, all results (for or against an accused) must be accurately recorded and revealed to COPFS for consideration of disclosure to the defence.

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Introduction

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7.6 Similarly, if articles, samples, impressions, images or recordings which have been seized or generated for examination or analysis are not properly recorded and a clear audit trail of their movements maintained, this can cast doubt on the integrity of the material. 7.7 Failure to ensure a transparent record of that particular strand of the investigation could again have the potential to materially weaken the prosecution case, materially strengthen the defence case or otherwise exculpate the accused. 7.8 If the police are to conduct a thorough professional investigation and properly fulfil their investigative and revelation responsibilities derived from disclosure,Investigating Officers (ROs and SIOs) must be fully sighted on what material has been seized or generated, what work has or has not been conducted (whether commissioned by COPFS or the police, see below) and any subsequent results obtained from examination or analysis whether it points towards the guilt or innocence of the suspect/accused including any decision, following an initial request, not to examine any material.

Chapter 7 Investigations involving Forensic Examination or Analysis

Commissioning of Forensic Examination or Analysis


7.9 Forensic examination or analysis of articles, samples, impressions or recordings are not confined to scientific processes such as chemistry or biology etc, but may, for example, include an examination of a computer, castings, images, documents, firearm components etc. In order to comply with investigative, revelation and disclosure obligations placed upon both the police and COPFS, it is essential that police officers understand the role and relationship between COPFS, the SPSA and other forensic experts in how the commissioning of forensic work is achieved. These practices have been borne out as a result of efficiency and best value principles.

Undetected Crime Investigations


7.10 In undetected crime investigations, the police will request examination of material in an attempt to identify evidence or intelligence, corroborate existing evidence or information, implicate or eliminate individual(s) from an investigation or in order to progress a line of enquiry. Such requests must be accurately recorded and submitted to the appropriate department using the recognised documentation. If a request is made for specific scientific analysis, then this must be made through the Forensic Science Gateway.

Detected Crime Investigations


7.11 In detected criminal investigations where an SPR has been submitted for consideration of prosecution to COPFS, productions (particularly in volume crime investigations) will not routinely be examined unless on the instructions of the relevant Procurator Fiscal. There are a number of reasons why such an approach is adopted for example, COPFS may decide not to initiate proceedings or a guilty plea may be tendered or there is a sufficiency of evidence without examination or analysis etc.

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7.12 The revelation responsibility placed on the police in such cases is to ensure that COPFS is made aware that material which has been seized or generated has been made available for forensic examination (usually through the SPR or subject report). Thereafter, if and when forensic analysis is commissioned by COPFS, the Investigating Officer should be sent a copy of any such request and thereafter be informed of the results of any examination (through the Forensic Science Gateway in scientific examinations). 7.13 Where an officer believes that any material which has been seized or generated may, on forensic examination, have the potential to materially weaken the prosecution case, materially strengthen the defence case or otherwise exculpate the accused, then this should be revealed to COPFS in summary cases via the SPR or by subject report, or in solemn cases via the SPR and schedules, at the earliest opportunity and thereafter instruction taken on submission and examination. 7.14 For further details on commissioning of work, the role of the Forensic Science Gateway, timing issues of submission, drugs cases etc, see the Joint Protocol between ACPOS and COPFS, Disclosure of Evidential Material in Criminal Proceedings, PartTwo Productions and the National Forensic Science Protocol.

Processes
7.15 The following processes identify the approach to be followed by the police, SPSA Forensic Services, including Scene Examiners, and other forensic experts to ensure that each organisation complies with their investigative and revelation responsibilities, thus ensuring that COPFS is in a position to fulfil its disclosure obligations.

General
7.16 Articles, samples, impressions, images or recordings which may yield some evidential value to a criminal investigation may come into the hands of the police through a variety of sources. For example, a member of the public may recover an article connected to a crime and hand it over to the police, or a member of the SPSA Scene Examination Unit (SEU) or forensic services may seize articles or take samples, including tapings prior to the actual seizure of an item, recordings or impressions from crime scenes, or police or police staff may seize material during a lawful search of a person, premises or area etc. Forensic Services staff may also recover material associated with a production, e.g. tapings taken from that item. 7.17 No matter how the material is seized or generated, by whom or where, each must be accurately recorded, appropriately sealed and labelled and entered through a recognised police production register. This should be done wherever practicable by the person seizing, recovering or recording the material, whether it is a police officer, specialist forensic examiner or a member of SPSA staff. Adopting such practices and having a transparent auditable management process in place will maintain the integrity of the production(s) and ensure that the police can comply with their investigative disclosure and revelation requirements.

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7.18 It is vital that accurate records, detailing exactly who has been involved in the recovery, generation and subsequent movement and storage of productions, should be taken or generated.The Investigating Officer must be fully sighted at each and every stage of these processes as all documentation created during the seizure and submission processes will be subject to review and, if deemed relevant, revealed to COPFS.

Chapter 7 Investigations involving Forensic Examination or Analysis

7.19 This record, subject to the provisions regarding undetected, detected, solemn and summary cases detailed later in this chapter, should be done as a witness statement, subject to the provisions regarding undetected, detected, solemn and summary cases detailed in results of examinations below, in the form of the National Standard Statement (NSS), detailing exactly what the witnesss involvement in their recovery and subsequent movement and storage should be taken or generated. A separate witness statement will be required for each person involved in the process.

Seizure, Recording and Retention


7.20 As with all productions which have been seized or generated during a criminal investigation, particularly items which are to be subject to some form of forensic examination or analysis, the exact details of the seizure must be accurately recorded. In the case of police officers recovering such items, details of the following should be recorded in police notebooks, production search schedules or MI production registers (where these are being utilised): Time and date of seizure Detailed description of article, impression, sample or recording Exact location where found Owner's details (if applicable) Full details of witnesses speaking to the production Protective measures put in place to prevent contamination 7.21 Productions should be accurately labelled, signed by the appropriate witnesses speaking to them and thereafter put through a police production register and stored as per force guidelines and in line with the ACPOS policy on the disposal of crime records and productions. (see Annex C) 7.22 In a number of volume crime investigations, police officers may not routinely be present at crime scenes and requests will be made for examinations to be carried out on behalf of the police by trained SPSA scene examination personnel.As with police officers, where material is seized and/or samples, impressions or recordings are taken by SPSA staff, this must be accurately recorded containing the above information and lodged through a police production register. The Investigating Officer must be fully updated in writing with this information in order that he or she can comply with his/her investigative and revelation obligations. Similarly, where there are photographs or the crime scene has been visually recorded by SPSA staff, again the Investigating Officer should be updated in writing with this information.

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7.23 If the material has been seized or generated by SPSA staff and they have recorded this in a police production book or register, then this must be fully articulated to the Investigating Officer in writing by that member of staff in accordance with individual force agreements.The Investigating Officer or SPSA staff member can thereafter arrange for the necessary examination to be conducted with the use of the appropriate request form. 7.24 Police officers should be aware that if Forensic Scientist/s attend major crime investigation scene/s, and are involved in either the collection of samples, or productions, or direct scene examiners to take such material, then it should be noted they will prepare a separate scene locus report, which details their actions and involvement at the locus. This will be referred to in their statements which is described later in this chapter. 7.25 It is appreciated that actual physical lodging through police production books or registers may, in some instances, not always be possible for example, due to geographical logistics or where there is an urgency to have the item examined. In such circumstances, this can be achieved remotely by forwarding in writing the full details of the recovery/generation (as above) to the Investigating Officer. 7.26 This intimation would also include details of where the material has been taken to and where it is stored for example, blood swab lift taken from bar counter of the Flying Scotsman public house, 123 Main Street, Anytown, taken direct to Glasgow Forensic Laboratory for drying and subsequent examination; or fingerprint impression lifted from point of entry (bedroom window) at 123 Main Street, Anytown, taken direct to Dundee Fingerprint Bureau. 7.27 It would then be the responsibility of the Investigating Officer to enter the details of the productions in the police register and update the movement and storage as per the intimation. Local force procedure will thereafter dictate whether the Investigating Officer or the Scene Examiner will complete and submit the appropriate examination request form. It will be the responsibility of the Investigating Officer to ensure that the correct production register sequential number is appended to the production label or bag.

Movement of Material
7.28 As previously mentioned, it is vital that if the integrity of material is to be maintained, then records of its movement must be accurately kept from seizure through to its examination.This is achieved by the use of police production registers and also statements of persons speaking to any such movement. The statements, which should cover all transference of material recorded within a production register, can be relevant to an investigation and therefore should be in NSS form and would fall to be revealed to COPFS.

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7.29 Officers involved in such movement should submit statements or incorporate this involvement in their statements to the Investigating Officer. Likewise, if any scene, forensic or other specialist examiners are involved in the movement process, this should be incorporated within the body of their statement. (See Chapter 9, Statements.)

Chapter 7 Investigations involving Forensic Examination or Analysis

Submission
7.30 All articles, samples, impressions or recordings which have been seized or generated during a criminal investigation by either police officers, SPSA staff or other specialists and which are deemed appropriate for examination or analysis must have corresponding documentation detailing the articles and what type of examination is sought. If the request is for a specific scientific forensic examination, then the request form should be directed through the forensic gateway and thereafter all movement of the material should be clearly updated in the police production register. Local force procedures will dictate whether this documentation is completed by the Investigating Officer or Scene Examiner who has seized or generated it. If it is the latter, then the Investigating Officer must be copied in to the request. This will ensure that these officers are fully sighted on all aspects of this strand of the investigation. 7.31 Requests for all other forensic examinations (such as computers etc) should be directed through the appropriate departments in line with individual force guidelines. 7.32 The documentation for these types of examinations should be completed by the Investigating Officer (or an officer or police staff working on his behalf), as this will ensure that these officers are fully sighted on all aspects of the investigation.

Examination
7.33 Only after the material has been recorded and given a sequential production register number should it then be forwarded to the appropriate department (Forensic Gateway for scientific exam) for onward transmission for examination. The only exception to this is in forensic science cases where the material seized relates to a custody case and timeous examination is required (such as custody drugs cases). However, the request form should accompany the material and should be retrospectively passed to the gateway. 7.34 During examination, particularly scientific analysis, it is relatively common for additional samples to be generated. These samples are recorded within the workings of the examiners' reports and may become additional productions in the case. It is vitally important that the existence of such additional productions is notified in writing to the Investigating Officer in order that they can be properly recorded through a police production register and dealt with appropriately for revelation purposes. This should be achieved by following individual force guidelines.

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Results of Examinations
Undetected Cases General 7.35 Where examinations have been requested by the police in undetected crime investigations, it is vitally important that the Investigating Officer is fully informed of all aspects of the examiners' involvement (including attendance at crime scenes and what has been seized or generated) and the results of their examinations or analysis. 7.36 This allows Investigating Officers to make an assessment, in line with all other information, of the results of the examinations (positive or negative) in order that they can comply with their investigative responsibilities and, if the case is subsequently resolved, their revelation obligations derived from disclosure. 7.37 It is essential that Forensic Examiners understand this principle, as this may well inform further lines of enquiry or lead to the detection of the crime. Solemn 7.38 For serious crime investigations, which when detected have the potential to end up being prosecuted in the solemn courts, and in line with all other witnesses who have an involvement in these investigations, Scene or Forensic Examiners or other experts should intimate their full involvement and results (positive and negative, if applicable) to the Investigating Officer by means of submitting a statement (in NSS format see Chapter 9) along with the joint report (if applicable see below). If, due to time constraints, this information is intimated verbally, then this should be followed up with an NSS statement (and joint report, if applicable) being submitted to the Investigating Officer. Summary 7.39 In undetected volume crime investigations, written intimation should be sent to the Investigating Officer detailing their full involvement and/or results of their examination in line with individual force guidelines. Should the investigation be resolved with an SPR submitted to COPFS, the PF will request the joint report and statements through the Forensic Gateway. The Gateway will forward the Form to SPSA with a copy being provided to the Investigating Officer. The joint report and statements will be sent to the PF and a copy is sent to the Forensic Gateway, who will forward to the Investigating Officer in line with the Forensic Science Protocol.

Detected Cases
Solemn Cases 7.40 In detected serious crime investigations where COPFS have made a decision to prosecute under solemn procedure, commissioning of any work will be undertaken by the relevant PF. In certain cases, consultation may require to take place between the PF, Investigating Officer and the relevant examiner to determine an appropriate strategy.

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7.41 Results (positive or negative) and Scene or Forensic Examiners' involvement must be intimated back to COPFS by means of an NSS statement accompanied by either reports or, in scientific examinations, the joint report (if applicable) to the PF. In scientific examinations, a copy of the report/joint report along with the statements must also be sent to the Forensic Science Gateway and this will be forwarded to the Investigating Officer.

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Summary Cases 7.42 In detected volume crime investigations, work will only be undertaken by Scene, Scientific or other Specialist Forensic Examiners on the instructions of the relevant PF. This will be achieved in scientific examinations by the submission of the standard forensic instruction form which will be sent to the Forensic Science Gateway, which will ensure a copy is sent to the Investigating Officer. 7.43 Following completion of the examination or analysis, NSS statements and joint reports will require to be produced and submitted to the PF by Scene, Forensic and other Specialist Examiners. Again, in scientific cases, a copy of the report/joint report along with the statements must also be sent to the Forensic Science Gateway which will be forwarded to the Investigating Officer. Scientific Joint Reports, Scene/Locus Reports and Statements 7.44 As part of the criminal justice process, Forensic Science Examiners, during the course of their employment, will be considered as Crown witnesses and therefore are obliged to provide a detailed account of their involvement in a criminal investigation. Previously, it was sufficient for Forensic Examiners to submit their findings by way of the joint report, and/or scene report if applicable (if they had attended at and taken an active participation at a crime scene). However, with the legal revelation and disclosure obligations now placed on the police and COPFS, it is necessary to adopt a more robust and transparent system of support service involvement. 7.45 Where the appropriate commissioning of work has been requested either by the PF or the police, the above guidelines in relation to solemn, summary, detected and undetected cases should be followed for the submission of statements and results for any scene attendance and subsequent forensic process. 7.46 In respect of results of examinations and analysis carried out on material by Forensic Scientists, the SPSA Forensic Services will produce a joint report on request, which will be listed as a production in the case. It will contain details and conclusions of forensic examinations from two authorised Forensic Scientists and a list of items examined, procedures carried out, results and scientific or expert conclusions drawn from the examinations.When commissioned by COPFS, the original joint report will be provided to the Procurator Fiscal with a copy being forwarded to the Investigating Officer, via the Forensic Science Gateway, who will list it as a production in the case.

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7.48 The timelines for the submission of statements and reports are outlined in the ACPOS/ COPFS joint protocol on the disclosure of evidential material in criminal prosecutions and must be adhered to. 7.49 As with all other material evidence, the disclosure of these statements, reports and productions associated with them is solely the responsibility of COPFS. Negative Findings 7.50 There is a strong possibility that negative findings in respect of either a scientific forensic analysis or other forensic process may materially weaken the prosecution case, materially strengthen the defence or otherwise exculpate the accused and would therefore fall to be disclosed to the defence. Further, in terms of the COPFS Disclosure Manual, COPFS will proactively disclose all negative findings, regardless of their potential materiality. Where examinations provide a mixture of positive and negative results, reports or joint reports must contain details of all the forensic analysis. 7.51 In relation to forensic analysis of a case which provides no positive results or the fact that a scene examination was carried out where nothing of evidential value was recovered, the local forensic science centre or scene examination unit should provide written confirmation of this to the Investigating Officer.This should be in the form of a statement (NSS format), subject to the above guidelines in relation to solemn, summary, detected and undetected cases, which will be forwarded by the Investigating Officer to COPFS and, in terms of COPFS guidance, will then be disclosed to the defence. 7.52 The Procurator Fiscal may request a joint report in scientific cases in which the negative finding is evidentially significant.These requests will be submitted through the Forensic Science Gateway which will be copied to the Investigating Officer. 7.53 Any subsequent report and statements produced must be forwarded to the PF and a copy provided to the Forensic Science Gateway who will forward a copy to the Investigating Officer in order that the police can fulfil their investigative and revelation obligations.

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7.47 The National Standard Statement (NSS) is the recognised format that has been adopted and is the method of transmitting a witnesss involvement in an investigation from the police to COPFS.This format must be adopted in all cases.The NSS will detail the Forensic Scientists full involvement whether he/she attended at the locus, what productions he/she seized etc and will make reference to the scene/locus report or joint report, or both if applicable.These will either be forwarded to, or copied in to the Investigating Officer. These statements will be retained and treated as with all other statements in line with individual force guidelines. It is accepted that there are circumstances where further enquiry/analysis will be required and therefore an examiner may not be in a position to provide a statement detailing their complete involvement. In these instances, a `covering` initial statement should be prepared and forwarded to the investigating officer detailing their involvement to that date.That initial statement will be `statement 1` and any subsequent statement refered to as `statement 1a` etc..

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Defence Access to Scientific Examination and Analysis Records 7.54 Due to the nature of forensic science work, additional material will be generated as a result of the examination process for example: Production lists associated with the case, including records of items received, but not examined;

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Requests or instructions for forensic work; Scientist or expert notes Minutes and any scientific data generated during the examination process. 7.55 These items will form the contents of a forensic case file.There is no routine obligation to reveal such information or to provide the contents of the forensic case file to the police or Crown unless it contains relevant information which has not been included within the joint report or associated witness statement(s).If such information is identified, then it must be revealed to the Crown in order that it can determine whether or not the information should be disclosed. However, as a matter of routine, all relevant information should be included in either the joint report or the associated witness statements. 7.56 Such relevant information will also require to be copied in to the police so that they can comply with their investigative and revelation obligations. The files will be retained by SPSA forensic services. 7.57 While it is normally for COPFS to first consider material to assess whether it meets the disclosure test, COPFS is satisfied that a different approach is necessary in relation to forensic notes. Due to the specific scientific and technical nature of the forensic notes, COPFS considers that it is not best placed to determine the materiality of that information. As a result, COPFS is satisfied that the forensic examination and analysis records should be made available, as a matter of routine, on request, to the defence in order that a defence expert with sufficient knowledge and skill can examine and interpret them in order to assess them for materiality. Accordingly, at the end of each joint report, the following phrase should be inserted: The examination and analysis records held by the SPSA are available for inspection on request by a defence expert with sufficient knowledge and skill. 7.58 There is no requirement to provide copies of material in the file or to allow the case files or any part of them to be removed or copied.

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Access to Other Material 7.59 Forensic information that is not part of the case file or that has not been generated as part of the forensic examination process for example, standard operating procedures, quality manuals and information held as part of the management system for the forensic organisation are not considered to be a part of the case file. There is no routine obligation to disclose this information unless instructed by the Crown to provide defence access to this information, following consideration of a request from the defence. 7.60 Further guidance may be sought from the appropriate COPFS Solemn Legal Manager in respect of the provision of defence access/disclosure in relation to any specific case. Guidance may be sought from the Policy Unit at the Crown Office in relation to the policy of defence access/disclosure generally. 7.61 Note: National standardised documentation and business processes are currently under development by SPSA which will allow investigators to be kept fully informed of the whole forensic process from collection through to disposal.This chapter will be updated when these processes are in place.

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Chapter 8

Cross-Force, Agency and Border Investigations


Introduction
8.1 As a result of developments in technology, improved transport networks and organised criminality becoming more sophisticated, criminal investigations often cross force boundaries, national and international borders. Cross-force and agency investigations are becoming increasingly common and, from a revelation and disclosure perspective, this can often present significant challenges to the police, law enforcement and prosecuting authorities. 8.2 Officers need to be alive to the potential that other forces or agencies may hold information which may be relevant pertaining to their investigation and, if such investigations result in reports being submitted to COPFS for consideration of prosecution, then due consideration will require to be given to obtaining it from them. In cases where there are particular sensitivities, consideration must be given to requesting the force or agency to reveal the material or providing intimation of its existence directly to COPFS. 8.3 It is imperative that if an officer becomes aware that any information which may be relevant is held by a different force or agency, reasonable steps must be taken to ensure that revelation obligations are complied with during the enquiry, reviewing and assessment process.

General
8.4 In the vast majority of investigations, ROs, SIOs and RVOs are unlikely to encounter instances of this kind and will be able to focus solely on their own investigation. However, they must ensure and record that during the revelation process they have, where appropriate, considered and subsequently discounted such issues. 8.5 On most occasions, it will be evident from an early stage in an investigation that other forces or agencies may have information which could assist in progressing an enquiry. It is good practice and a reasonable line of enquiry that contact is made with them and that full discussion takes place to determine an investigative strategy. Such discussion should also now include how revelation is to be achieved and a clear strategy agreed among all the forces or organisations involved. This strategy should be recorded in writing and signed off by each of the parties involved.

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8.6 Although not exhaustive, it is most likely that in the following types of investigations, information which may be relevant will be held by different forces or agencies and consideration to this issue must be duly given: Counter-Terrorism Intelligence-led Operations into Organised Crime Groups (OCGs) Crimes of Violence Involving OCGs Financial and Large-Scale Fraud Paedophilia High-Tech Crime

Chapter 8 Cross-Force, Agency and Border Investigations

Crimes where linked incidents have been identified

Parallel and Linked Investigations


8.7 There may also be instances where forces or agencies will conduct parallel investigations or there may be information which links suspects and/or accused persons with other criminality. Again, liaison with all the forces and agencies involved should take place at an early stage and an investigative and revelation strategy agreed. COPFS should be consulted at an early stage where it has been identified that separate reports are to be submitted and a strategy on revelation formulated and agreed.

Reviewing Officers (RVOs)


8.8 In such investigations and dependant on their nature, the volume of material that is anticipated to be generated, and where dedicated RVOs have been appointed by the SIO or lead investigators there will most likely be a requirement to identify and appoint a principle RVO to oversee all aspects of revelation from each of the enquiries to COPFS. This should be implemented after consultation among each of the forces, agencies and COPFS and an agreed strategy drawn up and signed off by the respective organisations involved.

Cross-Border Investigations
8.9 Where it has been identified that relevant information pertaining to an investigation is held by a police force or agency out with Scotland, contact should be made with the force or agency to discuss how best to comply with Scottish revelation obligations. 8.10 There may also be issues over prosecution jurisdiction or timings of proceedings which will need to be resolved at an early stage. Discussion will require to take place between the relevant prosecutors to resolve these issues and thereafter with investigators prior to an agreement being reached among all involved in how best to achieve revelation and disclosure.

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8.11 In England, Wales and Northern Ireland, schedules are used by police forces and law enforcement agencies to reveal unused material (material which does not form part of the case to be used at trial) to the Crown Prosecution Service (CPS) and Director of Public Prosecution (DPP).

International Investigations
8.12 Where it has been identified that relevant information pertaining to an investigation is held by a police force or agency out with the United Kingdom, again contact should be made with the force or agency to discuss how best to comply with Scottish revelation obligations. 8.13 Certain procedures have already been put in place to deal with such requests for assistance from abroad and they are underpinned by principles of reciprocity and mutual respect among foreign legal systems. When dealing with foreign agencies, it is important to bear these principles in mind. Abuses or perceived abuses cause damage beyond the confines of individual cases and can potentially adversely affect any future requests for assistance. 8.14 Experience has shown that opening up a constructive dialogue with requested parties will often overcome many of the difficulties thrown up by divergent practice and procedure including those relating to the revelation of relevant material. 8.15 The principles governing the approach to be taken to material located abroad or obtained from abroad are the same as apply to material located in or obtained in the United Kingdom. 8.16 Pursuance of information held abroad will fall under the SIO/ROs responsibility of pursuing all reasonable lines of enquiry and therefore a common sense approach should be applied prior to the commencement of a formal approach to the relevant force or agency. 8.17 There are already well established processes across Scotland for obtaining assistance from foreign policing agencies, including International Letters of Request (ILOR), and each force should adhere to its own operating policies in the first instance. In addition, the EU Council Framework Decision 2006/960/JHA on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union (the 'Swedish Initiative') has now been implemented and full guidance on the processes can be found by following the link in Appendix B -Swedish Initiative .

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8.18 This principle has governed the cross-border exchange of law enforcement information since 1 January 2008 and means that a Member State must make available to a law enforcement officer from another Member State information that it holds and which is needed by the requesting law enforcement officer to perform his or her duties, subject to the requirements of any ongoing investigations. 8.19 It is good practice to establish early communication with COPFS of the need to obtain relevant information from a foreign agency to ensure that any actions by the police are appropriate in a legal context. Further guidance on this area of business is currently being developed by ACPOS and will be made available when completed.

Chapter 8 Cross-Force, Agency and Border Investigations

Sensitive Intelligence Material


8.20 Where it has been identified that sensitive intelligence information which may be relevant to an investigation is held by another force or agency, then the guidance outlined in Chapter 12 of this manual should be followed.

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Chapter 9

Statements
Introduction
9.1 In order to secure a fair trial, COPFS is under an obligation to disclose to the defence in advance of trial all statements obtained from witnesses who are to be called to give evidence. In addition, where a case is listed for the High Court, COPFS will disclose all statements obtained by the police during an investigation, not just the statements of those witnesses to be used at trial. This has resulted in the accuracy of statements of both police officers and civilian witnesses coming under more scrutiny than ever before. As a consequence of disclosure, the way in which the police record, retain, review and reveal statements to COPFS must be robust and transparent. 9.2 The accurate management of information, particularly in the form of witness statements noted during the course of an investigation, is essential to ensure that police forces comply with their revelation obligations from the outset.Therefore, it is the responsibility of every police officer who obtains information, to ensure that the contents are made available to the Investigating Officer at the earliest opportunity. Reference to such information must also be included within the officers own statement to ensure that the audit trail of information is complete and transparent.

Format and Retention


9.3 All statements obtained from a witness will either be recorded within an official police notebook, National Standard Statement Form (NSS), Personal Digital Assistant (PDA), or on an official recording system, with the original being able to be produced if required.All original manuscript statements should be retained in a durable format and in accordance with the ACPOS policy and guidance on the disposal of crime records and productions (see Appendix C).There should be a clear audit trail to identify where these documents are located.

Content
9.4 It is a fundamental and obvious requirement that summaries of evidence must accurately reflect the evidence contained within the statements that have been obtained and will be disclosed to the defence. There are specific reasons why such accuracy is critical, not least because witnesses often do not adhere to their original statements. Officers should be aware of the impact of Sections 259, 260 and 263 of the Criminal Procedure (Scotland) Act 1995, with regard to statements noted from witnesses.

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9.5 In defined circumstances, Section 259 allows the statements of absent or deceased witnesses to be used in criminal proceedings. 9.6 Under Section 260, if a witness is unable to remember the contents of his or her statement, but he or she acknowledges that the statement was made, then that statement may be incorporated as his or her evidence. If the statement is recorded in a notebook or on an NSS form, PDA or official recording system, the officer who took the original statement can give evidence as to the content of the statement and thus provide the necessary link in the evidence chain. It should be noted that it will be the original statement and not the typed version that will be produced in court. 9.7 Section 263(4) allows an earlier statement to be put to a witness during a trial, should his or her evidence differ from what is contained in that statement. Accuracy in the completion of witness statements is therefore vital if COPFS is to use these legislative provisions. 9.8 It is critical in each witness statement, but particularly in those of police officers, that the true extent of their involvement is set out. The mere fact of presence, as opposed to participation, e.g. on a search, may not be informative. Lack of clarity of involvement has an impact upon the need to precognosce and the ability of the Crown to excuse witnesses. It may also lead to false assumptions in both these aspects. The clearer and more precise the witness statement, the less likelihood there will be for detailed precognition. 9.9 Each production, be it a documentary or label production, must be spoken to by the witness or witnesses who seized it or were present during its seizure. This must be incorporated into the relevant witness statements and highlighted (by indentation). 9.10 Reference to a production schedule or surveillance log does not replace the requirement for a detailed statement. Each statement must include details of what the witness can speak to in terms of the procedure carried out, articles seized, and any questions put to the suspect and answers given. 9.11 Where a statement contains reference to a lengthy police interview which has been audibly recorded, witness involvement may be summarised, but any crucial replies and special knowledge admissions should be set out in full. 9.12 If the interview is recorded in the officers notebook, then the entire contents of the interview must be included in full within his or her own statement. 9.13 Where a case depends on special knowledge, the appropriate evidence must be set out in all relevant statements so that the terms of the admission (in the interviewer's statement) can be compared to the facts of the offence (as set out in the complainer or other witness statement).

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9.14 If an admission is not supported by evidence, then that should be made clear either in the report or, if possible, in the statement, as the availability of such information (e.g. manner of securing house, colour of stolen vehicle) cannot be inferred. Consideration should be given as to whether it is necessary to re-interview any complainer to check the detail of any admissions provided by the accused. 9.15 Where a witness corroborates another witness in entirety, the relevant evidence should be set out in full statement form for each witness, rather than simply narrating the mere fact of full corroboration of another witness. 9.16 Each statement should conclude with a comment as to whether or not the witness can identify the accused.This will be a critical factor in determining whether or not there is sufficient evidence to proceed and, as noted, whether or not to hold an identification parade in respect of that witness. Any doubt or qualification regarding identification should be stated. Where a witness states that he or she will be unable to recognize an accused again, consideration should still be given to noting any general description offered, whether by way of physical features, clothing or voice. 9.17 If an officer is taking a statement from a civilian witness whom he or she believes will be reluctant to either speak up at any subsequent proceedings or alter their testimony from their original version of events, then this information should be communicated to the Procurator Fiscal via the non-disclosable section of the National Standard Statement and, if at all possible, within the remarks section of the Standard Prosecution Report.

Police Officers
9.18 COPFS and the Courts are entitled to expect that a statement submitted in the name of a police officer has been prepared by that officer and contains an accurate and reliable account of the evidence which the witness can give from his or her own recollection and notes. Accordingly, the importance of keeping accurate contemporaneous notes in notebooks cannot be over-emphasised. 9.19 When considering whether there is a requirement to submit a statement detailing their involvement in an investigation, officers must firstly consider whether their involvement could have a bearing on the case and is therefore relevant (Relevancy Test). For example, if their only involvement in the investigation was to form part of a cordon protecting a crime scene and they were not involved in completing the crime scene log, noting any statements, seizing any productions or any other evidential participation. then their involvement is most likely to be irrelevant and therefore would not require the submission of a statement. If, on the other hand, officers play a part in gathering evidence of whatever kind, then they must each submit a personal statement detailing their full involvement in the investigation.

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Police Staff
9.20 In the event of a member of police staff having a relevant involvement in an investigation for example, a custody officer finding evidence during a person search then it will be the responsibility of a police officer to record the staff members statement within an official police notebook, NSS, or PDA.

Civilian Witnesses
9.21 Civilian witness statements are usually prepared on the basis of interviews. It will not necessarily be clear from a statement which is submitted to COPFS whether words contained in that statement are the actual words of a witness or represent the interviewing officers interpretation of the evidence which a witness can give. It is appreciated that a witness statement will rarely be a completely verbatim account of everything the witness has said (the principal exception being recorded interviews from vulnerable witnesses and former co-accused). 9.22 It is important that the statement does contain, as far as possible, the actual words of the witness whether freely offered or given in response to questions. A police officer is duty-bound to ask probing questions in an effort to jog a witness's memory or to clarify points in that statement. In addition, the statement of a child or vulnerable adult should reflect the language used by them. 9.23 It is important that it contains everything of relevance to the case, including anything which may be helpful to the suspect. Where critical words of a witness are noted, e.g. what the accused may have said when committing an offence, these should be indicated in quotation marks. The contents of a statement should be read over to the witness and asked to sign this. If a witness refuses, or is physically unable, to sign their statement this should be clearly recorded at the end of the statement and a reason if applicable. 9.24 Note When noting a witness statement, in whatever format, the content of the free-text summary must be free-flowing. This will ensure that this will not affect the interview flow. Furthermore, it could be confusing to a witness when reading over or signing a statement which is not a readily identifiable reflection of what the witness actually said. 9.25 Where a number of statements are obtained from a witness, all of them must be revealed to COPFS. This will also include any house to house questionnaires obtained from the witness.When obtaining any subsequent additional statements from a witness, the interviewing officer should include that he or she has previously provided a statement during the investigation. This information must be included at the beginning of any subsequent statement. It is therefore vitally important that RVOs review all the material which has been obtained or generated during the investigation, in particular other officers notebooks, to ensure that this information has been captured.

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9.26 Also under the duty of disclosure, the police have a responsibility to conduct reasonable lines of enquiry to identify any information which could materially weaken the prosecution case, materially strengthen the defence case, or otherwise have the potential to exculpate the accused. If, during their enquiries, they become aware of such information and investigation of that line of enquiry necessitates a witness being interviewed and a statement noted, then every effort must be made to obtain this, with that statement subsequently being revealed to COPFS. 9.27 If a statement has been self-prepared by a civilian witness, the original version should be seized and lodged as a production and, after the contents have been verified with the witness, converted to NSS format for transmission to COPFS. It is important that in these circumstances the NSS version is an accurate reflection of the original selfprepared statement. The provenance section must reflect this circumstance and the fact that the original has been seized as a production revealed to COPFS.

Accuracy of Typed Witness Statements


9.28 It is standard practice, where an original statement has been obtained from a witness using a police officers notebook, hard copy NSS, PDA or captured on an official recording system, for this statement to then be typed. Thereafter, it is the typed version of the statement that is submitted electronically to COPFS and subsequently disclosed to the defence. 9.29 This typed statement MUST be an accurate reflection of the original statement or interview and MUST not be altered or paraphrased in any respect, subject to the qualifications set out in this chapter and, or the transfer of the material to Section 6 of the NSS due to the confidential nature of the material. 9.30 When obtaining the original statement from the witness, as stated above, the statement should, as far as possible, contain the ordinary language of the witness.Where a witness uses a phrase that is not easily recognisable, this should, as far as possible, be explored with the witness at the time the statement is taken and his or her description of the phrase should form part of the statement.Where, however, no description is given (either because the phrase is easily recognisable locally or because the witness is referring to a person whose full details are only obtained at a later date), the officer can include the description of the phrase or the details of the person referred to in brackets in the typed statement, for reference purposes. 9.31 This is of particular significance where the Crown or the defence refers to the witness statement during the trial through utilisation of any of the legislative processes referred to previously.Where a party wishes to lead evidence contained in a witness statement, the court will wish to examine the original statement. As COPFS (and the defence) are likely to have prepared the case with reference to the typed statement, any discrepancies between the original statement and the typed statement are likely to be scrutinised at this stage.

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9.32 Accordingly, after a typed statement has been prepared and before this typed statement is submitted to COPFS, it is essential that there is a process in place for checking the accuracy of the typed version against the original statement to ensure that there are no such discrepancies, material or otherwise. 9.33 If, after a typed statement is submitted to the Procurator Fiscal, it is discovered that there is a discrepancy between it and the original handwritten statement, the officer identifying the discrepancy must bring this to the attention of the RO, who in turn must inform COPFS. It is essential that this process is implemented immediately, as COPFS may already be in the process of disclosing the statement. 9.34 Thereafter, a revised version of the typed statement may have to be submitted in consultation with COPFS. 9.35 All discrepancies should be highlighted, whether the Reporting Officer considers the discrepancy to be material or not. 9.36 The requirement to resubmit a typed statement should only arise in exceptional circumstances, as best practice dictates that typed statements should not be submitted to the Procurator Fiscal until after this proofreading process has been carried out. 9.37 Within Section 2 of the NSS, the officer must complete the mandatory authentication field. The options available to the officer are: signed/refused/read-over/tape/video/verified by officer as own statement. Selection of any of these options will also be an acceptance by the officer that, where the typed statement is a transcript of the original statement, the typed statement has been proofread and confirmed as an accurate copy of that original statement. 9.38 This applies equally whether the officer noting the statement is the RO for that incident and is to submit the statements to COPFS, or if the statement is being forwarded to another RO, either within that same force or an external force, who will in turn submit the statements to COPFS.

Chapter 9 Statements

National Standard Statement (NSS)


9.39 The NSS is the format that must be used when transmitting the terms of an original hard copy statement to COPFS electronically, whether it is that of a civilian witness or a police officer, and whether or not the case is at summary or solemn level.

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9.40 As previously mentioned, COPFS will not routinely receive the original version of a statement, but it may be required at some stage, probably for use in court.The version that is submitted electronically should contain no less information than what would be available if the original were produced.The NSS has been designed in such a way as to ensure that this happens. 9.41 An important characteristic of the NSS is that it has discrete sections: the disclosable personal details, the details of how and when the statement was taken and the statement itself are contained in Sections 1-3, and officers should expect this material to be disclosed to the defence. The remaining part of the NSS (Sections 4-6) allows for the communication of information and notes to COPFS, which it is intended will remain confidential. It is designed to facilitate the removal of any sensitive material before disclosure of the statement to the defence. 9.42 The NSS has a number of mandatory fields to ensure that essential information is submitted in particular, Section 2 which deals with the provenance of the original document. Completion of the 'authentication' field in Section 2, whichever option is chosen, is also taken as certification by the individual officer that the typed statement has been proofread against the original statement and is an accurate copy. 9.43 In cases where illness,leave or the urgency of the request prevents the timeous submission of a police witness statement, a witness statement should not be prepared on behalf of that officer as its accuracy cannot be verified, as that statement may be disclosed to the defence if such a statement were created. In such circumstances, the importance of an accurate SPR cannot be underestimated, as the summary in particular, the analysis of evidence will be an accurate summation of what the officers statement, when submitted, can be expected to contain. Thereafter, a statement in NSS format must be completed as a matter of urgency and submitted by the officer immediately upon his or her return to duty. 9.44 Not withstanding that the NSS is separated into disclosable and non-disclosable sections, information contained within the disclosable section may be redacted (blacked out) by COPFS when disclosing the statement. Equally, information contained within the nondisclosable section may be disclosed by COPFS if it takes the view that this meets the disclosure test. 9.45 At the point where a statement is to be converted into electronic NSS format (whether by dictation or hard-copy directly to typed version), any sensitive information can be moved from section 3 (free-text) to section 4 (personal details) or section 6 (other confidential material). Note It must always be obvious within the electronic NSS that sensitive information has been moved from section 3, for example: My name is John Smith and reside at `1` Section 4 would therefore show: `1`. 26 Any Street, Anytown
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9.46 Every statement submitted electronically on behalf of a police officer must state within the provenance section (Section 2) that the statement has been verified by that officer as his or her own statement.The typed statement, transmitted electronically to COPFS, must indicate (i) where the original statement is contained (notebook, hard copy NSS, PDA or official recording system, statement form or other document) and (ii) whether the witness has signed the statement in the notebook or other document and, if not, why not. 9.47 Witnesses should be asked to supply full contact details in order that they can be cited for any court hearing as a witness, or for precognition, with the minimum amount of inconvenience. In particular, witnesses must be asked to identify the address they wish to have recorded as their 'Disclosable Address' in Section 1 of the NSS, as, unless this is accurately established, COPFS will automatically insert the home address as the disclosable address. 9.48 The NSS distinguishes between the minimum information that the witness must reasonably anticipate will be disclosed i.e. name, address for disclosure purposes (Section 1) and the sort of personal detail e.g. mobile phone number included in the confidential notes (Section 4) which will allow COPFS to facilitate fast, flexible and convenient arrangements for his or her involvement in the process. 9.49 There should be a presumption that statements will be disclosed to the defence. Officers should bear this in mind, particularly when taking statements from civilian witnesses. Any disclosure of personal information not necessary for criminal proceedings may be contrary to the rights of witnesses provided by the ECHR. If asked, witnesses should be advised that if proceedings are commenced, their statement may be disclosed to the solicitor for the accused. 9.50 Information of a medical, sexual or personal nature that may nonetheless be relevant for the purpose of the investigation or by way of background should be set out in the confidential notes by ROs (Section 6). Similar considerations apply to expressions of opinion and matters of a sensitive operational nature (see chapter on sensitive material) which are not suitable for disclosure to the defence. 9.51 References to the mental state of witnesses or any previous history of the witness, including reference to previous convictions etc, should not be included in the free text (Section 3) part of the statement unless they are directly relevant to the offence and, as such, would require to be disclosed. Such information should still be noted and included in the confidential notes (Section 6). This section should also be used to record any remarks, not personal opinions, the officer wishes to make about the witness or the statement and, in particular, any information of which he or she is aware that could influence or impact upon the credibility or reliability of the witness. 9.52 Use of the approved hard copy statement form (Appendix R) will ensure that the appropriate amount of information required is captured at the time of taking the statement and can be easily transposed into the electronic version submitted to COPFS.

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9.53 There is a formal agreement between ACPOS and COPFS with regard to the appropriate time scales for the requesting, revealing and disclosure of witnesses statements and CHS information. These are set down in the ACPOS/COPFS Joint Protocol on the Disclosure of Evidence in Criminal Proceedings.

English / Welsh Statements


9.54 Where a statement is being obtained by English/Welsh Authorities in relation to a Scottish investigation, then the manuscript statement should be treated in the same way as if it had been obtained in Scotland, e.g. the statement not lodged as a production as such but retained. A typescript version should be prepared in NSS format and submitted to the PF in the usual way. Statements need only be treated as productions, where the statement itself is to be used as evidence, e.g. in a perjury prosecution In addition, a statement should be prepared and submitted by the English/Welsh officer who obtained the statement. It is also important, however, that the authentication process is properly adhered to. Accordingly, whoever converts the statement into NSS format for transmission to the Crown - or the RVO - should have responsibility for ensuring that the version being submitted to the Crown contains the same information as in the manuscript version. 9.55 Police officers from England and Wales cannot be designated as police witnesses as the police officer URN number database does not include such officers. Accordingly, they should be designated as civilian witnesses and a CHS number should be provided (where one exists). In terms of current guidance, until the NSS statement schema is updated, such officers will need to be designated as PEOW in the SPR and as civilian in the witness statement.

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Chapter 10

General Principles
10.1 This chapter has been compiled in accordance with the ACPOS/COPFS guidance on police reports, statements and the presentation of Evidence in Court. 10.2 Under current Scots law, the police have a duty to reveal to the Crown Office and Procurator Fiscal Service (COPFS) all information which may be relevant which has been obtained and generated throughout a criminal investigation. The police have a responsibility to provide COPFS with high quality Standard Prosecution Reports (SPRs), statements and the Criminal History System (CHS) information of witnesses. 10.3 Where the investigation establishes a sufficiency of evidence, initial revelation of such material is usually communicated to COPFS in the form of the Standard Prosecution Report (SPR). The SPR, which is completed by the Reporting Officer (RO), will outline all the circumstances and evidence in the case and will, in the majority of cases, be the basis for the Crowns decision whether to prosecute, apply a direct measure or take no proceedings. It will also inform the decision as to the appropriate forum for any proceedings, e.g. summary or solemn proceedings. 10.4 The SPR therefore plays a fundamental role and it is essential that it: Is accurate in its terms; Contains details of all relevant evidence, regardless of whether it points towards or away from the accused; Provides details in regard to whether witness statements were obtained and the format in which they have been recorded. 10.5 SPRs are also prepared: I) To enable COPFS to provide a summary of the evidence to the accused; and II) To assist with the presentation of the facts to the court, especially at the initial hearing. In most pleas of guilty, the report will be the basis of the Fiscals narrative to the court and, in some district court cases, will be used at trial as the sole basis for the presentation of evidence, i.e. in the absence of witness statements.

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10.6 There is therefore a clear need for completeness, accuracy and reliability of the information contained in the report.

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10.7 Statements have been increasingly used in evidence as a result of legislative changes allowing their introduction. Following the Privy Council appeal in the case of Sinclair v HMA, the Crown is under an obligation, in terms of Article 6 of the European Convention on Human Rights (ECHR), to disclose to the defence in advance of trial the statements of all witnesses who are to be called at a subsequent trial. 10.8 Together with the disclosure system operating in High Court cases since 2005, the subsequent decision in Sinclair v HMA has resulted in the accuracy of statements police officers submit, both on their own behalf and those taken from civilian witnesses, coming under more scrutiny than ever before. In order to support the new High Court disclosure regime and to ensure consistency of practice and standards, a format was approved nationally for the submission of statements electronically to the Fiscal, the National Standard Statement (NSS) (Appendix R).A style hard copy statement was also approved for use where appropriate. The NSS is now used in all cases, both summary and solemn. 10.9 The Privy Council appeal of Holland v HMA [2005] also places a duty on COPFS to provide the defence with information about Criminal History Records (CHRs) of any witness that the Crown intends to lead at trial.Accordingly, the police have a responsibility to carry out a search of the Criminal History System for each witness and reveal the existence of such records to COPFS.

Standard Prosecution Reports


10.10 The format and structure of SPRs is now well established as the main reporting mechanism between the police and COPFS. The main area of the report supporting this entire process is Section 4, Summary, and therefore must accurately reflect the evidence available.

Section 4 Summary
10.11 The Summary section of the SPR places a responsibility upon the RO to detail the events of any incident in an accurate and concise manner.This section is mandatory in all cases and it is the responsibility of the RO to ensure that, after reviewing all information which has been obtained or generated during the course of the investigation, a summary of all relevant material is described in this section. Relevant material will, importantly, include evidence that points both towards and away from the accused.

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Disclosable Summaries of Evidence

10.13 It is essential, therefore, that when completing the SPR, the RO should always bear in mind that parts of Section 4 may be disclosed to the accused. 10.14 Accordingly, any sensitive or intelligence material e.g. telephone numbers of witnesses, security information about witnesses property, SID reports etc should not be included in the sub-sections of the SPR that may form part of the COPFS summary and should instead be included under one of those other sub-sections, e.g. further enquiry, remarks etc. 10.15 If this summary is accurate, this should enable the defence to give early advice to their client, which further makes it essential that all material which may be relevant and known to the RO at the time of completing the SPR is included. Similarly, if any additional information comes to light, the RO should advise COPFS as soon as practicable, e.g. by subject report.The summary of evidence provided to the defence can then be amended as necessary to include this information. 10.16 The COPFS summary of evidence will extract information from the following subsections of Section 4 of the SPR: Description of Locus Description of Events Police Interview/Text of Admission Caution and Charge/Reply Medical Evidence 10.17 It will not normally include the following sub-sections; COPFS may, however, use information from these sections to satisfy their disclosure obligations.That said, where officers require to convey information to COPFS, they must utilise the Remarks section of the SPR: Antecedents Background Information Analysis of Evidence/ID of Accused Further Enquiry Remarks Key Information

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10.12 All summary complaints served on the accused include a summary of the evidence in the case. This summary is extracted from sub-sections of Section 4, summary of the evidence section of the SPR.

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Preparing Section 4 of the SPR

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10.18 Having regard to those sub-sections that will form the summary of evidence disclosed to the defence, the following information, if it is not sensitive, must be detailed in those sub-sections of the SPR: A narrative of events as described by all witnesses (note: this is not to be confused with the analysis of evidence and should flow as a clear narrative of events).It should also highlight any discrepancies in their evidence. Details of any medical evidence, including any anticipated prognosis provided by practitioners at that time. This will inform decisions as to the appropriate forum for proceedings and also the advice given to the accused by the defence; it is essential that such details are as accurate and full as possible. Whether there is any visually recorded evidence whether it has been seized, viewed, the format in which it is recorded and its availability for viewing. Whether any productions have been seized and thereafter forwarded to the SPSA for forensic analysis or if there are any known results of analysis, such as presumptive tests of substances; In drugs cases, the presumed weight and physical make-up of the drugs (e.g. resin, liquid, powder etc); The details of any information which has been obtained or generated during the investigation which would tend to exculpate the accused, whether by weakening the case or providing a defence to it, and, if so, the nature of this and the current extent of any investigations into this defence. This includes any information that is in the possession of any other agency, i.e. linked enquiries, cross-boundary and borders investigation. (see Chapter 8.) The basis on which any search was conducted, e.g. common law, statute or warrant etc.

Analysis of Evidence
10.19 The Analysis section also recognises the impact of ECHR legislation. It will assist COPFS in satisfying the 'equality of arms' principle contained in Article 6 of ECHR and, in particular, the degree of disclosure which is imposed on the Crown when opposing bail. The implications of the ECHR also mean that certain decisions taken by officers concerning the detention or arrest of a person and any subsequent decision to keep him or her in custody require to be recorded and should be included in the report. Reasons for such decisions, including a clear indication of the statutory or common law powers under which officers acted, must be soundly based and clearly explained in all reports.

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Associated Reports

10.21 Further guidance on the completion of SPRs can be found within individual force information systems.

Case Management/Criminal Justice Gateway


10.22 Under no circumstances must the evidential content of an SPR be altered by anyone other than the reporting officer prior to its transmission to COPFS. Criminal Justice Gateway staff may wish to add text to the `Remarks` or `Key Information` sections to convey to COPFS any evidential discrepancies which have been identified within the report. 10.23 Where case management / Criminal Justice gateway units are required to make amendments to address quality issues, then the RO must be informed as soon as reasonably practicable to ensure that any future communications between the RO and COPFS are in accordance with the amended SPR.

Future Developments
10.24 Guidance has been distributed to individual forces which facilitates the prompting of the information detailed above. Officers should check within their own forces as to where this information is retained, to ensure that this is included in the relevant sub-sections of Section 4 of the SPR .

Witness Criminal History Records


10.25 The appeal case Holland v HMA (and re affirmed in the case of HMA V Murtagh) places a duty on the Crown to provide the defence with information about previous convictions of and any outstanding charges against any witnesses that the Crown intends to lead at trial as contained within their CHR. Accordingly, when obtaining a statement from a witness, it is important that the officer taking the statement obtains sufficient details from them to enable a Criminal History System (CHS) check on them to be carried out. Under section 13 of the Criminal Procedure (Scotland) Act 1995, as amended by the Police, Public Order and Criminal Justice (Scotland) Act 2006, a constable can require that a potential witness provide his or her name, address, date of birth, place of birth and nationality. Police officers taking statements from witnesses should ensure that this information is obtained in order to facilitate any search for their details.

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10.20 Where an associated report has or will be submitted to COPFS e.g. death report, SPR relating to the same incident, subject report etc then details of this must be included in the remarks section of the SPR. It should detail whether it has previously been submitted in order that the associated report can be cross-referenced. This will be particularly important where an additional associated SPR is submitted involving the same incident, such as a counter-allegation of assault, as it may contain relevant material information.

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10.26 Where COPFS requests a statement to be submitted from a witness who is likely to be cited for trial, a CHS check should be carried out for that witness. . It has been agreed that,at present,the Police/Agencies should not routinely conduct Criminal History checks other than CHS, however should there be reasonable belief (for whatever reason) that an accused/witness has relevant PCOCs elsewhere than CHS, these records should be interrogated and any relevant information revealed to allow COPFS to comply with their disclosure responsibilities. The relevant part of Section 4 of the NSS should be completed; specifying either that the witness has no CHS number or details of their CHS number. 10.27 Where the officer carrying out the CHS check identifies a CHS number for the witness, but is concerned that this number may not relate to the witness, it is important that this information is contained within the NSS.The CHS number identified should be inserted in Section 4 of the NSS. Thereafter, the officer should include in Section 6 of the NSS that (i) he or she has concerns and (ii) details of the grounds for these concerns. 10.28 It is not sufficient merely to state that the officer is concerned about the accuracy of the CHS number. In order to assess this, COPFS must have details of the grounds for the concerns. 10.29 As a result in a change of policy to comply with the Crown's legal obligation, officers are now required to select either Police or Civilian witness categories and thereafter confirm the existence of a CHS number or no trace for that witness. 10.30 At present within the NSS which is to be transmitted to COPFS, there is a section for categorising whether the witness is a professional, expert or official witness. This in turn gives an option of 'not requested' when it comes to identifying CHRs for this witness.This option should not be selected meantime, as CHRs for all witnesses should be obtained whether they fall into this category or not. The civilian witness category should only be selected. Changes will shortly be made to the NSS to reflect this change.

Off-Duty Police Officers/Staff Witnesses


10.31 As set out in the ACPOS/COPFS Joint Protocol on Disclosure, a police officer or other member of police staff, who is a victim/witness to a crime, not in their capacity as police officers or police staff, are categorised as a civilian witness. Accordingly, in such circumstances, the reporting officer should forward the officer's/staff member's details to their respective Professional Standards Departments who will facilitate the necessary checks and forward the results of this directly to COPFS. In summary cases, this will be in the form of an appropriately marked (restricted) subject report, or in solemn cases via a sensitive schedule.

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Productions

10.33 The following information is derived from this protocol and is intended to assist operational officers identify their immediate role to achieve compliance with the agreed protocol.

Production Definition
10.34 Productions are items seized in the course of a criminal and/or deaths investigation into an incident which may give rise to criminal proceedings or a fatal accident inquiry, and which have evidential value in terms of the investigation and possible subsequent court proceedings.

Seizure of Productions
10.35 As stated above, it is presumed that the police, in the investigation of an alleged offence(s) or a sudden, suspicious, accidental or unexplained death, will seize, record and retain material which may be relevant, particularly with respect to either the proof of the case, or in terms of exculpating the accused. 10.36 Often, it will be apparent when it is necessary to seize an item by the nature of the incident or the item itself for example, if an incident involves the use of weapons or a particularly large amount of stolen property. Proportionality should feature in the exercise of judgement as to whether or not to seize an item according to the seriousness of the incident and the material nature of the item.

Management of Productions Police


10.37 The initial management of productions is normally undertaken by the police, who will incorporate any seizures made into the incident under investigation and thereafter make an assessment of the relevancy of the article in relation to the ongoing development of any reasonable lines of enquiry. 10.38 The recording and storage of productions must always be in accordance with forces/ agency operating procedures and, where appropriate, providing the defence with access to those items, so far as that is necessary while those items are being held by either the police or COPFS. Any subsequent movement must be recorded in the prescribed manner. (See Chapter 7.)

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10.32 At some stage during the course of a number of police investigations, there will be a requirement to seize and retain productions which have an evidential bearing on the subject being investigated. The seizure, retention and subsequent revelation of this component to COPFS must be in accordance within the ACPOS/COPFS Disclosure of Evidential Material in Criminal Proceedings Joint Protocol to ensure that all parties meet their obligations under the disclosure regime.

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COPFS

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10.39 Similarly, once productions are transferred by the police to the custody of COPFS, the responsibilities in relation to storage and management will be undertaken in accordance with that body's operating procedures. 10.40 There may be occasions where police officers/staff are required to convey productions from COPFS for examination purposes on the instructions of the relevant PF Depute. In these instances, the officer/staff member must ensure that an auditable record of their involvement in this process is created to maintain the integrity of the article to avoid any future challenges if the matter proceeds to court.

Reporting of Productions in Cases


10.41 It is important that all relevant items are fully listed in the SPR, or in a case related document submitted with the SPR and in addition recorded within the appropriate schedule in solemn cases. This will allow the Procurator Fiscal to make an informed decision about what items require to be disclosed or at least brought to the attention of the defence, and to take an early decision about whether any items should be returned to the owner. It should be borne in mind that productions may contain sensitive information (e.g witness home address and/or telephone number) and consideration should be made when populating schedules that a production label may contain sensitive information and may require redaction prior to disclosure (Generic note 1). 10.42 Inevitably, a greater level of detail will be required in respect of productions in solemn cases. but, in general terms, in all cases, the SPR (and/or case related documents) should at least contain: A full description of all relevant items seized; Who seized from (if applicable); Exact location where they were found although if it was found in a witnesses home that is not the locus, then this should be specified as at witness X`s home rather than specifying the actual address; Date seized Details of the officer seizing Production reference number An indication of whether or not any items contain sensitive or confidential material; Details of those witnesses who can identify each item; Where relevant, an indication of the method by which witnesses can identify an item, e.g. by reference to a serial number, or particular marks or features;

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Details of ownership, as well as details of any disputed ownership; A note of any special difficulties which may arise if a particular item has to be retained; and Details of the extent to which the owner of any item or any other party will be inconvenienced by the retention of any items. Note; the accurate recording of this information is vitally important In solemn cases, where this information is not recorded, the RVO will be unable to complete the appropriate schedule. In such circumstances the item/label will be returned to the originating source for proper completion

Time Scale for Transfer of Productions to COPFS


10.43 In order for COPFS to meet its obligations in terms of the disclosure of productions, strict time scales have been developed and can be found in detail within the ACPOS/ COPFS Joint Protocol. 10.44 In short, the role of the reporting officer is extremely important insofar as the detail contained within the SPR provides essential information to COPFS and, in many cases, can support the Crown's efforts in obtaining an early plea by the defence.

10.45 It can therefore be seen that accuracy of the initial police report is essential to limit the need for what can be unnecessary additional work for the police to ensure that all parties meet their revelation/disclosure obligations. 10.46 An example of this is where a reporting officer has failed to accurately detail the content of a section of CCTV evidence which clearly shows an accuseds involvement in a incident and therefore unnecessary time and expenditure would be required to present this to the defence before a plea can be entered.

Defence Access
10.47 For guidance in relation to defence and unrepresented accused access to productions held by the police, see Chapter 15.

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Chapter 11

Schedules of Relevant Material


Introduction
11.1 Under current revelation and disclosure obligations, the police have a duty, where an offender has been detected for a crime or offence, and has been reported to COPFS for consideration of prosecution, to ensure that all material that may be relevant (either for or against the accused) which has been obtained or generated throughout the investigation is revealed to COPFS. 11.2 As previously explained in Chapter 10 of this manual, in the vast majority of cases, the initial method of reporting such information to COPFS is via the Standard Prosecution Report (SPR) and thereafter through the submission of statements, productions and subject reports. 11.3 In addition to these reports, where the Procurator Fiscal has taken a decision to prosecute under solemn procedure (i.e. either in the High Court or by Sheriff and Jury), schedules of relevant material must now be completed.The scheduling system is the cornerstone to achieving effective and efficient revelation and disclosure. The accurate completion and submission of schedules imposes a discipline on both the police and COPFS which will promote confidence in the integrity of the compliance by both organisations with their respective revelation and disclosure obligations. 11.4 This chapter sets out: I) What will trigger the requirement for the police to create the schedules; II) Who advises who should complete them; III) The different types of schedules, including practical advice on what information they should contain; and IV) The time scales and procedures to be adopted when submitting or transmitting schedules to COPFS.

Triggers for Schedule Completion


11.5 The first official notification to the police of a requirement to prepare, complete and submit schedules of relevant material will come from COPFS. Notification will be made in writing to the RO that the accused person(s) is/are to be prosecuted under solemn procedure. In order to ensure compliance with the time scales for provision and disclosure of schedules, COPFS will provide this notification not more than three days after the first appearance in court for committal for further examination (CFE).

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11.6 However, notwithstanding the official notification from COPFS that the case is to proceed on petition or indictment, it will be beneficial to start the schedules at the earliest possible opportunity or at the commencement of the investigation or operation. It is recommended that this should always be done where solemn proceedings can reasonably be anticipated. 11.7 This will be vital in Major Crime Investigations and Intelligence-led Operations where it is anticipated that any prosecution will proceed by way of petition and that a large amount of material will be obtained or generated during the investigation. 11.8 The time scales for submission of schedules to COPFS (described later) are particularly demanding. The early appointment of Reviewing Officer(s) (RVOs) to commence the process of reviewing, assessment and completion of the schedules is strongly recommended if the police are to meet their revelation deadlines and if COPFS is to subsequently meet its disclosure obligations within the time scales set out in the ACPOS/ COPFS Joint Protocol on the Disclosure of Evidential Material in Criminal Prosecutions. 11.9 The decision to commence completing the schedules prior to an instruction being received from COPFS will be entirely at the discretion of the RO or SIO. Such a policy decision should be recorded.

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11.10 Late submission and/or inaccurate completion of the schedules could result in significant delays in the whole disclosure process and this may, in extreme circumstances, result in the abandonment of the prosecution.

Reviewing Officers (RVOs)


11.11 For every case reported to COPFS for consideration of prosecution, one or more reviewing officers must be identified to deal with all aspects of reviewing, assessing and revealing relevant material to COPFS. In solemn cases where schedules of relevant material will require to be completed, the officer(s) identified could be the RO(s). In major crime investigations or intelligence-led operations, consideration will need to be given for one or more officers to be appointed and dedicated to such a role. The identities of these officers must be clearly recorded. 11.12 If their identities are known at the time of submission of the SPR, then this should be communicated to COPFS via the Remarks section of the SPR. 11.13 RVOs will come from both the operational and intelligence fields and it will be their responsibility during the review and assessment process to accurately complete the schedules and ensure that they are transmitted timeously to COPFS. RVOs must have a full and comprehensive knowledge of the enquiry and have been suitably trained and have the skills to fulfil such a role. The full range of responsibilities of these officers is contained within Chapter 5 of this manual.

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Types of Schedules
11.14 The schedules are to be treated as case related documents and depending on the nature, assessment and sensitivities surrounding the material that requires to be revealed to COPFS material should be recorded in one of three different categories of schedule. 11.15 The three categories of schedules are as follows: Non-Sensitive (NS) Sensitive - (SS) Highly Sensitive - (HSS)

11.16 In general, the three schedules are similar in format (see Appendices D, E & F) and between them must contain all material that has been generated during the course of the investigation that may be relevant. The transmission process to COPFS will differ, depending upon the level of sensitivity contained within the material, and the appropriate GPMS marking will be applied to reflect this. 11.17 In addition to disclosing all material that either forms the prosecution case or would otherwise weaken the case against the accused or strengthen the accuseds defence, COPFS must provide the defence with details of all other relevant, non-sensitive material that has been obtained/generated in relation to the investigation. This then allows the defence to make representations to either COPFS or the Court to have any of that material disclosed. Accordingly, the non-sensitive schedule will be disclosed to the defence. 11.18 The sensitive and highly sensitive schedules will not be disclosed to the defence. However, it is important to note that the material listed in either of these schedules may be disclosed (subject to any redaction by COPFS) to the defence if it meets the disclosure test, although this should be rare in relation to any material listed in a highly sensitive schedule.

Preparation of Schedules General


11.19 The need to accurately record, fully describe and confirm that all relevant material has been reviewed, assessed and revealed cannot be overstated and is an essential element of the revelation and disclosure process.

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Reviewing Process
11.20 As previously mentioned,the reviewing and assessment process should,where practicable, commence from the outset of an investigation and where at all possible the original material should be reviewed and should take place in conjunction with the preparation of the schedules. Note; If it is totally impracticable for original documentation to be reviewed for whatever reason and it is a copy or the material is elsewhere (Forensic lab etc) then what is being reviewed and described should be clearly articulated within the schedule. 11.21 The reviewing and assessing process will involve examining, inspecting, and viewing or listening to all the material that has been obtained or generated during the course of the investigation to determine whether it is: Relevant i.e. includes anything that appears to an investigator to have some bearing on any offence under investigation, or any person being investigated, or on the surrounding circumstances, unless it is incapable of having any impact on the case. Sensitive i.e. likely to: (a) give rise to the risk of serious injury, or death, to any person; (b) obstruct or prevent the prevention, detection, investigation or prosecution of crime; or (c) cause serious prejudice to the public interest.

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The nature and level of sensitivity also needs to be determined i.e. is it information which, if compromised, would be likely to: 1) lead directly to the loss of life; 2) directly threaten national security; or 3) lead to the exposure of a CHIS. 11.22 The level will determine whether it requires to be included in a highly sensitive schedule only to be viewed by COPFS/police staff with a particular level of security clearance. (Further details on highly sensitive schedules are described later in this chapter and Chapter 12.) Exculpatory Any material that is obtained or generated during the course of an investigation that could free the accused from blame or otherwise materially weaken the prosecution case or materially strengthen the defence case. 11.23 This three-stage assessment process assists the officer(s) conducting the review in determining how material should be recorded and revealed, and thereafter will assist the Crown in determining whether or not the material must be disclosed to the defence. 11.24 The only material which will not be subject to the relevance, sensitivity or exculpatory tests will be witnesses Criminal History Records which will be revealed to COPFS via the sensitive schedule in all cases.All statements that have been obtained in investigations

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which end up being prosecuted under solemn procedure will not be subject to a relevance test and will require to be listed on the schedules. However, they will still require to be assessed for sensitivity and whether they could weaken the prosecution case or strengthen the defence case. Full details of the reviewing process are contained within Chapter 5 of this manual.

Non-Sensitive Schedule
11.25 The non-sensitive schedule will, in all instances, be completed by the operational officer(s) (or suitably trained police staff working in that arena) that has/have a full knowledge and comprehension of the investigation. Its completion should not pose any great difficulties if the three-stage assessment process is robustly applied. In any case, the content of this schedule will be restricted to general non-contentious material that could, after assessment by COPFS, be disclosed to the defence. As previously stated, Actions: (HOLMES and MIRSAP) Notes of Interviews with Witnesses Fingerprint Forms Forensic Reports Detention Forms Arrest Forms Post Mortem Reports PI Tapes and Transcripts Production Logs Production Labels/bags Incident Logs Contents of Notebooks Suspect Interview Plans/Strategies Drink Driving Forms Tachograph Charts Certifications of Analysis of Blood and Urine Police Casualty Surgeon Reports for Accused Hospital Records Relating to Accused Crime Scene Entry Logs Messages: (HOLMES and MIRSAP) Crime Scene Sketches/Plans/ Videos /CDs Visually Recorded Interviews with Witnesses or Accused ID Parade Forms TSU Examination Reports Voluntary Attendance Forms Ballistic Examination Reports Other Expert Reports Custody Records Search Records Crime Reports Media Releases Forensic Examination Request Forms Device Print-outs Under RTA Certificates of Accuracy Video Operators Certificate re Video/ Digital Evidence Medical Examination Forms for Suspects and Witnesses Dental Records Relating to the Accused Lay Visitors' Police Cell Reports Visual Recordings (Photographs, CDs or Other Media), CCTV etc

the non-sensitive schedule will be disclosed to the defence. 11.26 All witness statements, including house to house questionnaires (subject to any sensitivities being identified, such as witness liaison issues) and relevant productions should be recorded on the non-sensitive schedule. Other examples of the types of relevant non-sensitive materials likely to be contained within this schedule are:

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11.27 The foregoing list is by no means exhaustive, and the non-sensitive schedule must include all non-sensitive material which may be relevant and could have a bearing on the case. 11.28 Importantly, this includes all non-sensitive relevant material which could weaken the Crown case, strengthen the defence case, or otherwise exculpate the accused.As stated below, this should be clearly marked on the schedule. 11.29 However, there is a possibility that parts of relevant non-sensitive documentation which is to be recorded on the non-sensitive schedule may contain some sensitive and irrelevant information, such as: Home Addresses Places of Employment Schools Attended Telephone Numbers Bank Details Family Details etc. 11.30 The existence of such sensitive and irrelevant information within the body of the material does not automatically mean that the material must be listed on the sensitive schedule. COPFS is permitted to redact non-disclosable information from the relevant material prior to disclosure, as set down in Chapter 15 of the COPFS Disclosure Manual. 11.31 Examples of this would include witness statements where sensitive and irrelevant personal information is included in Sections 1-3 of the National Standard Statement or production labels which may contain home addresses or telephone numbers. 11.32 Therefore, it is essential that care, combined with professional judgment and a common sense approach, is taken during the reviewing and assessing process to identify such sensitivities. To assist COPFS identify such information, within the schedules there is a column for applying a generic numbered note (see below and Appendix 1) which will highlight to COPFS that there is information contained within the material that may require redaction prior to disclosure to the defence. No information of a sensitive nature should be recorded on the Non Sensitive Schedule

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Schedule Of Relevant Non-Sensitive Material

Exculpatory - materially weakens the prosecution case or materially strengthens the defence case. Y/N

Non-Sensitive Schedule Completion GPMS Marking


11.33 Every schedule must be appropriately marked in accordance with GPMS guidelines (Appendix P).The protective marking for the non-sensitive schedule will be Restricted. 11.34 As with all the schedules, the non-sensitive schedule has four distinct sections: Title, Reference Number and Reporting Officer Details; Schedule Content;

RVO Details. 11.35 The following information is based upon the various headings on the non-sensitive schedule and must be followed when completing the document.

Title and Reference Numbers.


11.36 The schedule will have the title 'HMA v ', and the full details of the accused must be inserted. 11.37 Adjacent to the title are three spaces for Agency Reference, which for the police will be the police reference number. The Procurator Fiscal Number and full details of the Reporting Officer from the initial SPR must also be inserted.

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For completion by COPFS (see COPFS Disclosure Manual); and

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Schedule Content and Completion


11.38 This is the main and most important section of the schedule, which requires the insertion of the full details and descriptions of material which has been deemed relevant after assessment by the RVO.

Exculpatory - materially weakens the prosecution case or materially strengthens the defence case. Y/N

URN
11.39 As the schedules are being completed, a consecutive number for each listed item of relevant material must be inserted. This numbering sequence must continue in the submission of any subsequent schedules submitted to COPFS relating to the case. (See schedule submission for further details of additional schedules.) 11.40 Note: When the HOLMES2 disclosure package becomes available, the number will correspond with its records management system when recording the material referred to. This will also be the process for SCDEA officers working off their own action management system.

Chapter 11 Schedules of Relevant Material

Material Type
11.41 An accurate description of the material type that has been reviewed must be inserted here for example, witness statement, production etc. It is not sufficient to merely refer to a document by way of a police document reference number, as this may be meaningless to the other core users of the schedules, i.e. COPFS and the defence. 11.42 Where at all possible, and for ease of preparation and examination, items of non-sensitive relevant material should be listed and grouped by type i.e. statements, productions etc.

Description and Relevance


11.43 It is vital that a full,detailed accurate description (with the exception of witness statements that are also submitted to the prosecutor, see below) of the material is inserted here along with its relevancy to the investigation. If the description is detailed appropriately, then the relevancy should be self evident.

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11.44 When RVOs are completing the non-sensitive schedule, they should put themselves in the place of the reader, which may either be a Procurator Fiscal or a defence agent. If, upon looking at the description of the material (except where the witness statement is being submitted to the prosecutor) and its relevance is not clear or it is hard to understand what the material actually refers to, then clearly the description requires to be more detailed. 11.45 In relation to statements it has been agreed with COPFS that a minimum standard of information should be included within this column. Therefore when reviewing and describing a witness statement the following minimum amount of information must be included; Sequential number of statement, e.g. 1, 1(a), 1(b), etc Name of witness Age of witness Time and date of when statement was taken 11.46 For example a non sensitive statement which is not exculpatory should be recorded in the description and relevance column as follows; Description and Relevance

11.47 It is imperative that every piece of material obtained or generated in the investigation is reviewed and it is vital that statements are reviewed in order to identify whether it contains any sensitive information or whether it is exculpatory in its nature. Should such exculpatory information exist then this must be entered in addition to the minimum amount of information detailed above to include the reasons why the officer believes it to be exculpatory. For example; Description and Relevance Witness statement no 1 of Jack Smith (27), taken at 1400hrs on Wednesday 25 January 2010 Exc Smith states that he was within his home address along with the accused Joe Bloggs watching television between 1700hrs and 2000hrs on 21 January 2010, therefore providing him with an alibi for the crime 11.48 Where police witness statements are recorded on the non sensitive schedule the following minimum information must be included: Sequential number of statement, e.g. 1, 1(a), 1(b), etc Rank, name and number of police witness Date prepared

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Witness statement no 1 of Jack Smith (27), taken at 1400hrs on Wednesday 25 January 2010

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For example; Description and Relevance Witness statement no 1 of Constable John Jones No 123, self prepared on 25 January 2010 11.49 During the reviewing process it is essential that the relevance test is carefully applied to all productions, as often in major crime investigations large volumes of productions can be seized which could have no bearing on the case and therefore could be manifestly irrelevant. Similar to statements a minimum standard of information has been agreed with COPFS and must be recorded within the `Description and relevance` column after review. These are: Description of item Who seized (if applicable) Exact location where found although if it is found in a witnesss home that is not the locus, then this should be specified as at witness X`s home rather than specifying the actual address. Date seized Details of officer seizing

Chapter 11 Schedules of Relevant Material

Production register number 11.50 Therefore a non sensitive and non exculpatory production should be recorded and described as follows; Description and Relevance Bloodstained `Nike` make, white and black left training shoe. Seized from the witness Jack Smith within interview room at Anytown Police Office on 1 February 2010 by constable Brown A234. Production register number 123456/78 refers. Where this information is insufficient in itself for a reader to identify the relevance of the production, then further information should be provided here setting out its relevance. 11.51 However if during the reviewing process of a production anything of an exculpatory nature is identified, this must be summarised within the description and relevance column after the minimum standard of information has been inserted, for example :

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Description and Relevance Scotrail train ticket No. 123456789 dated 1 February 2010. For return journey from Glasgow to Inverness. Seized from the accused Joe Bloggs` left hand trouser pocket at Charge bar within Anytown Police office on 2 February 2010 by constable Brown A234. Production register number 1223456/78 refers Exc The accused Bloggs has alleged during interview that he was in Inverness on the 1 February 2010 when the crime was committed in Anytown. 11.52 All other non sensitive relevant material must be accurately described clearly articulating why it is relevant within this column. The insertion of a full and accurate description can save considerable time and effort for the RVO and COPFS, as a poor description could result in either COPFS returning the schedule for amendment or requesting a copy of the material, or the defence requesting its disclosure if it had not been disclosed. 11.53 Supervisors should be mindful of their responsibilities in relation to the quality control of their officers' work, and this also includes the accurate completion and transmission of schedules within this process.

Repetitive Material
11.54 In investigations where there are many items of relevant material which are similar or repetitive in nature for example, house to house questionnaires it may be possible to describe them on the non-sensitive schedule by quantity and/or generic title and provide further information on them by using the numeric generic notes or a note created by the RVO, which could be specific to that schedule or enquiry. (See note and example below.) 11.55 However, the use of generic listing must only be done with the express authority of COPFS (i.e. the relevant Solemn Legal Manager and subject to certain circumstances as mentioned below) to ensure that COPFS can still satisfy its disclosure obligations. Where such authority is provided, discussion should also take place with the relevant Solemn Legal Manager to discuss the appropriate wording of both the generic listing and the associated description. Note;This authority is not required on every occasion where additional generic notes are listed, for example; where an additional officer has reviewed the material in a multiple RVO deployment. However if there are any doubts regarding the generation of an additional note then the solemn legal manager should be consulted for clarification.

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Where Lodged
11.56 This must accurately detail the location of the item, i.e. Production Store at High Street Police Office.This will relate to the location of the original material and not any electronic version that has been generated.The accurate recording of the location and the use of any location identifier reference numbers can facilitate quick access to the material and ensures that any requests for viewing, revelation or disclosure can be dealt with in an efficient manner. 11.57 In relation to statements, this column must also specify the form in which the original statement is held. For example; Description and Relevance Witness statement no 1 of Jack Smith (27), taken at 1400hrs on Wednesday 25 January 2010 Description and Relevance Witness statement no 1 of Jack Smith (27), taken at 1400hrs on Wednesday 25 January 2010 Where lodged Handwritten within Constable John Smiths police issue notebook No 12345, pages 9 and 10. Notebook still in use and retained by Constable Smith. Where lodged Handwritten on NSS witness statement form. Lodged within Major Incident room Anytown Police Office, statement No 35 refers

Chapter 11 Schedules of Relevant Material

Note:
11.58 A numeric list of generic notes (See below and Appendix I) has been developed to assist RVOs and provide COPFS with additional information relating to each item (or similar / repetitive material) listed. This also assists COPFS with their decision-making process.The RVO can, if necessary, create additional notes which can be numbered and added to the generic note list which are incorporated into the schedule document. 11.59 As mentioned above, it may be possible to list many items of relevant material that are similar or repetitive in nature.

Generic Notes
11.60 It may be possible with the express approval of the COPFS solemn legal manager to describe them by quantity or generic title and provide further information on them by using the generic note or a note created by the RVO which could be specific to that schedule or enquiry. The generic notes are numbered as follows: 1) This material contains sensitive information and may require redaction prior to disclosure. 2) This witnesss statement was taken after a questionnaire was completed during the house to house exercise in this investigation.

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3) These individuals were interviewed during house to house enquiries and did not provide any relevant information and it has been agreed with the appropriate Solemn Legal Manager within COPFS that the forms need not be submitted. 4) This production has been forwarded for forensic examination. 5) This scientific joint report is a copy and the original has been forwarded directly to COPFS by the SPSA. 6) The date in the 'date of submission to PF' column relates to when the electronic version of this statement was submitted. The list is included within the non-sensitive and sensitive schedules for ease of reference. Any additional notes should be added here prior to submission to COPFS. 11.61 The following is an example of where repetitive material has been obtained during an investigation and where the generic notes could be used: FOR POLICE USE * Date of submission to PF EXC Exculpatory - materially weakens the prosecution case or materially strengthens the defence case.Y/N URN Material Type Description and Relevance 53 house to house questionnaires taken from the occupants of Nos 47 to 73 Brown Street on whether they observed anything in Brown Street on X date. None of the occupants observed anything. Where lodged EXC
Note

* Y/N

105

House to House

Incident Room, High Street Police Office

1&3

11.62 In multiple RVO deployments in large scale crime investigations where different officers are utilised to review certain aspects of the enquiry additional generic notes should be used to identify what they have reviewed. This will be determined by the principle RVO who has overall responsibility of the administration of the schedules. For Example;

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FOR POLICE USE * Date of submission to PF EXC Exculpatory - materially weakens the prosecution case or materially strengthens the defence case.Y/N EXC Material Description and Relevance Where lodged Note * URN Type Y/N 53 house to house questionnaires taken from the occupants of Nos I n c i d e n t 1 , , 3 House to 47 to 73 Brown Street on whether Room, High &7 105 N House they observed anything in Brown Street Police Street on X date. None of the Office occupants observed anything. Key to Generic Notes This material contains sensitive information and may require redaction prior to disclosure. This witnesss statement was taken after a questionnaire was completed during the house to house exercise in this investigation. These individuals were interviewed during house to house enquires and did not provided any relevant information and it has been agreed with the appropriate Solemn Legal Manager within COPFS that forms need not be submitted. This production has been forwarded for forensic examination This scientific joint report is a copy and the original has been forwarded directly to COPFS by the SPSA The date in the date of submission to PF column relates to when the electronic version of this statement was submitted. These house to house questionnaires were reviewed by Sgt John Smith B1234,Anytown Police Station

1 2

3 4

Chapter 11 Schedules of Relevant Material

5 6 7

* Date of submission to PF
11.63 The date of submission to the Procurator Fiscal should be inserted for each item of relevant material listed. Statements and productions should always be forwarded to COPFS; but where material is not submitted to COPFS, this column should remain blank, e.g. where the production is submitted to the forensic laboratory for analysis or the material comprises questionnaires containing no material information and COPFS has agreed that the material should be retained by the police. In relation to witness statements, most will initially be submitted electronically, therefore when listing a statement, the date when the electronic version was submitted to COPFS should be inserted and the generic note number 6 used.

EXC Y/N:
11.64 Each item must be reviewed and assessed for its potential to weaken the prosecution case, strengthen the defence case or otherwise exculpate the accused and either Y or N inserted. This then highlights to COPFS that the material may meet the disclosure test, although the final decision on this will rest with COPFS.

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11.65 What constitutes this type of material is dependent on the circumstances in each case and, although not exhaustive, this type of material may include: Evidence which may point to the conclusion that no crime has been committed or that no crime was committed on the date or at the place libelled e.g. Contradictory evidence of timings of last sighting of a deceased. Evidence which may contradict evidence (real or oral) on which the Crown case will rely e.g. CCTV footage that fails to show accused. Information which may cast doubt on the credibility or reliability of the Crown witnesses e.g. criminal history information of a witness. Information which may be inconsistent with scientific or other expert evidence on which the Crown will rely or with inferences which may be drawn from such evidence e.g. trajectory of bullet in shooting cases. Evidence or information which may point to another person as perpetrator e.g. forensic analysis of productions. Evidence or information which might reduce the degree of seriousness of the offence e.g. medical prognosis of victims injuries. 11.66 Where material of an exculpatory nature has been identified and Y inserted in this column, the reason why the officer believes it to be exculpatory should be recorded within the description and relevance column as exampled at 11.45 and 11.49.

For COPFS Use


FOR COPFS USE *Enter: D = Disclose to defence WM = Withhold meantime DA = Disclose by access ND = Not disclosable (Assessed as non material) * Comment Date disclosed to defence

11.67 This section is solely for COPFS use and the RVO completing the schedule should leave this blank. After the schedule has been submitted to COPFS, this area is used by Procurators Fiscal to record their decisions of whether the material is to be disclosed or not. Further information on the completion of this section by COPFS is contained in the COPFS Disclosure Manual.

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RVO Completion
11.68 Once the schedule has been completed and is ready to be submitted to COPFS, at the end of the last page, the final section of the schedule requires that the RVO appends his or her personal details and dates it within the appropriate column. 11.69 This is a form of an undertaking to COPFS that, as per the date inserted,the reviewing officer believes that the following material is not sensitive and may be relevant, (This statement is contained within the header of each page.) Reviewing Officer: Date: DC Joe Brown PSP320000 27/10/2009 Reviewing Depute or Precognoscer: Date:

11.70 Note; A further written undertaking will be made by the RVO at specific times during the revelation process and each schedule requires to be named and numbered, both these processes are explained later in this chapter.

Chapter 11 Schedules of Relevant Material

SENSITIVE SCHEDULE General


11.71 If any relevant material is obtained or generated throughout the investigation and it is assessed as being sensitive, then the appropriate place to record and reveal its existence to COPFS is via the sensitive schedule.This schedule will not be disclosed to the defence, although if any of the material listed on the schedule meets the disclosure test and there are no public interest immunity concerns, then material contained within the sensitive schedule will, subject to suitable reaction by COPFS, be disclosed to the defence. 11.72 The sensitive schedule will be completed by operational officers (or suitable trained police staff) who will record on the schedule any sensitive material which may be relevant and which sits on the operational side of the firewall, e.g. sanitised intelligence reports. 11.73 The GPMS marking for sensitive schedules will be Restricted and any material attracting a higher marking i.e. Confidential, Secret or Top Secret will be listed on the highly sensitive schedule, and should be completed by intelligence staff. 11.74 As with the non-sensitive schedule, the sensitive schedule should be used in addition to the SPR to reveal to the Precognoser the existence of information which the RVO believes would be likely to: a) Give rise to the risk of serious injury, or death, to any person; or b) obstruct or prevent the prevention, detection, investigation, or prosecution of crime, or c) cause serious prejudice to the public interest.

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Reason for Sensitivity


11.75 The reasons why the material is assessed as being sensitive must be recorded, and the following types of material have been identified as having the potential of being sensitive and must be considered, for insertion on the sensitive schedule: 1) Material relating to national security 2) Material received from intelligence and security agencies 3) Material relating to intelligence from foreign sources, revealing sensitive gathering methods 4) Information received by the police on an undertaking by them that the information is received in confidence 5) Material relating to the use of a telephone system and supplied for intelligence purposes only 6) Material relating to informants, undercover police officers and others at risk if identified 7) Material revealing police surveillance location(s) or the identity of any person allowing that location to be used 8) Material revealing techniques and investigative methods relied upon by the police

10) Internal police communications 11) Material upon the strength of which search warrants were obtained 12) ID parade participant personal details 13) Material generated by an official concerned with the regulation of corporate bodies or financial activities 14) Material generated by social services, an (area) child protection committee or other party and relating to a child or young person 15) Police intelligence information 16) Restricted personal information, such as addresses, telephone and vehicle numbers 17) Material relating to the private life of a witness (including witness Criminal History records, medical and Social Work records) 18) Police misconduct information This list is incorporated within the Sensitive and Highly Sensitive schedules for ease of reference.

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Chapter 11 Schedules of Relevant Material

9) Material that facilitates the commission of other offences or hinders the prevention and detection of crime

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11.76 The above list is not exhaustive; however, during the three-stage assessments and reviewing process and to assist officers identify the reason why material is considered to be sensitive, the above numbered list should be used.The column within the sensitive schedule should be used to indicate what category the material falls into. This will be done by inserting the corresponding generic sensitive note number in the respective column.This list, which has been reproduced at Appendix I will, in all cases, accompany the schedules transmitted or submitted to COPFS. (See below.) 11.77 However, it should be noted that depending on the nature of the information and its GPMS classification, it may in fact require to be listed on the highly sensitive schedule, particularly the types of material listed in Nos 1, 2, 3, 4, 6 and 7 above. 11.78 The following types of information would usually be listed in the sensitive schedule: Criminal History Records SIO Policy File Operational Briefings Vulnerable Witness Profiles RIPA Applications Dental Records Policy Files Offender Profiles Wanted/Missing Reports Information from Social Services /Local Authorities Warrant Application Reports (for Both Search and Arrest Warrants) Police Misconduct Material Family Liaison Logs Debriefing Sheets Intelligence Logs (SID) Comms Data (Uncertified) Medical Records Data Protection Requests PNC Information Port Warnings Custody Records for Witnesses RIPSA Applications, Renewals, Reviews

Chapter 11 Schedules of Relevant Material

11.79 This list is not prescriptive and, depending on the actual information contained within each individual item, it may, on occasion, be appropriate for it to be listed on the nonsensitive schedule. However, this list will act as a guide to assist Reviewing Officers in determining the appropriate schedule.

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Schedule Of Relevant Sensitive Material


Agency Ref: HMA V Pf Ref: Rep. Officer: The Reviewing Officer believes that the following material is SENSITIVE and may be relevant. FOR POLICE USE FOR COPFS USE *Enter: D = Disclose to defence Date of submission to PF WM = Withhold meantime EXC Exculpatory Undermines the prosecution case or assists the defence.Y/N RFS Reason for Sensitivity DA = Disclose by access ND = Not disclosable (Assessed as non material) PII required Material Type Description a n d Relevance Where lodged D a t e disclosed to defence

URN

RFS

Note

Comment

SENSITIVE SCHEDULE COMPLETION GPMS Marking


11.80 Every schedule must be appropriately marked in accordance with GPMS guidelines (Appendix P). The protective marking for the sensitive schedule will be Restricted and therefore can be electronically transmitted to COPFS. 11.81 Further guidance on applying sensitivity levels and GPMS is contained in Chapter 12 of this manual. The method of transmission is outlined at schedule submission later in this chapter. 11.82 As with all the schedules, the sensitive schedule is also made up of four distinct sections: Title, Reference Number and Reporting Officer Details Schedule Content For Completion by COPFS RVO Details

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11.83 The following information is based upon the various headings on the sensitive schedule and must be followed when completing the document.

Title and Reference Numbers


11.84 As per completion of the non-sensitive schedule.

Content and Completion


11.85 This is the main section of the schedule and will contain details of sensitive material that requires to be provided to COPFS to ensure that it is able to fulfill its disclosure obligations.

URN
11.86 As with the non-sensitive schedule and, as this schedule is being completed, a sequential number will be inserted. These sequential numbers will continue on any additional sensitive schedules submitted.

Chapter 11 Schedules of Relevant Material

11.87 Note;When the HOLMES2 disclosure package becomes available,the number will correspond with its records management system used when recording the material referred to.

Material Type
11.88 An accurate description of the material type must be inserted here for example, Intelligence report, RIPSA application etc.

Description and Relevance


11.89 Again, as per the non sensitive schedules it is vital that a full detailed and accurate description of the material is inserted here along with its relevancy to the investigation. If the description is detailed appropriately, then the relevancy should be self evident. For example: URN 1. Material Type Intelligence report Description and Relevance B2 Intelligence dated 10/01/07 provides that John Doe was responsible for a stabbing in High Street, Glasgow, on 1/1/07.

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11.90 The insertion of a full and accurate description can save considerable time and effort for the RVO and COPFS, as a poor description could result in either COPFS questioning why the material is sensitive, returning the schedule for amendment, requesting a copy or providing COPFS with access to the material. 11.91 Where relevant sensitive police intelligence has been identified from the Scottish Intelligence Database (SID), it should contain the following minimum amount of information: 1) Date of report 2) Grading as per the 5 x 5 x 5 system 3) A summary of the sanitised text. 11.92 The 5 x 5 x 5 grading system has been reproduced at Appendix Q 11.93 When RVOs are completing the sensitive schedule, they should put themselves in the place of the reader, which for sensitive schedules could either be the Precognoser or the Solemn Legal Manager. If, upon looking at the description of the material, it is not clear what it refers to (or in the case of SID Intelligence it does not include the minimum amount of information), then the description requires to be more detailed.

Repetitive Sensitive Material


11.94 Similar to the non sensitive schedule and where there are many items of sensitive relevant material which are similar or repetitive in nature for example, SID Intelligence reports it may be possible to describe them on the sensitive schedule by quantity and/or generic title and provide further information, (if applicable), by using the numeric generic note or a note created by the RVO, which could be specific to that schedule or enquiry. (See note and example at 11.54) 11.95 However, the use of generic listing must only be done with the express authority of COPFS (i.e. the relevant Solemn Legal Manager and subject to certain circumstances as mentioned below) to ensure that COPFS can still satisfy its disclosure obligations. Where such authority is provided, discussion should also take place with the relevant Solemn Legal Manager to discuss the appropriate wording of both the generic listing and the associated description. Note;This authority is not required on every occasion where additional generic notes are listed, for example; where an additional officer has reviewed the material in a multiple RVO deployment. However if there are any doubts regarding the inclusion of an additional note then the solemn legal manager should be consulted for clarification. Also where relevant sensitive material is being listed on the sensitive schedule and it is exculpatory in nature then this must be individually listed and the reasons why it is exculpatory described with the description and relevance column. (see 11.55)

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Where Lodged
11.96 This must accurately detail the location of the item, i.e. contained within Scottish Intelligence Database.

Note:
11.97 Note;The use of use of location identifier reference numbers can facilitate quick access to the material and ensures that any requests for viewing, revelation or disclosure can be dealt with in an efficient manner.

Reason for Sensitivity (RFS)


11.98 The reasons why the material is assessed as being sensitive must be recorded within this column (RFS). During the three-stage assessment and reviewing process and to assist officers identify the reason why material is considered to be sensitive. A numerical list has been incorporated within the sensitive schedule and if the material falls within any of the listed categories, then the corresponding generic sensitive note number should be inserted here. 11.99 If the material does not fall into any of the categories listed on the note, then a full explanation should be inserted as to why the RVO believes the material is sensitive. 11.100 Again, this is an important element in the completion of the sensitive schedule. If the material has been wrongly assessed and been placed in the sensitive schedule, then after discussion between the completing RVO and COPFS, it may be returned for amendment, resulting in further delays to the process. If there is any dubiety around issues of sensitivity or GPMS marking, then consultation with a senior intelligence officer should take place. 11.101 Note: The generic list of notes are incorporated within the sensitive schedule (Appendix H) and have been developed to provide COPFS with additional information relating to the item listed, to assist with their decision-making process. The RVO can, if necessary, create additional notes which he or she can add to if appropriate. For example;

Chapter 11 Schedules of Relevant Material

URN

Material Type

Description and Relevance 7 Historic Intelligence reports received between 1995 and 1999 of various 5X5X5 grading`s which provided that the accused John Doe was involved in the illegal distribution of controlled drugs

Where lodged Scottish Intelligence Database Urns relating to John Doe

RFS

Note

1.

Intelligence reports

15

1&7

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1 2

Key to Generic Notes This material contains sensitive information and may require redaction prior to disclosure. This witnesss statement was taken after a questionnaire was completed during the house to house exercise in this investigation. These individuals were interviewed during house to house enquires and did not provided any relevant information and it has been agreed with the appropriate Solemn Legal Manager within COPFS that forms need not be submitted. This production has been forwarded for forensic examination This scientific joint report is a copy and the original has been forwarded directly to COPFS by the SPSA The date in the date of submission to PF column relates to when the electronic version of this statement was submitted. This material was reviewed by DC Frank Smith B1235, Anytown Police Station

3 4 5 6 7

* Date of submission to PF
11.102 The date of when the material has been submitted to the Procurator Fiscal should be inserted for each item which has either been forwarded to or view access given to COPFS. Most relevant sensitive material will remain in the possession of the police unless COPFS request to see it. Where the material has not been supplied to COPFS, the column should remain blank.

EXC Y/N
11.103 Each item of relevant sensitive material must be reviewed and assessed for its potential to weaken the prosecution case, strengthen the defence case or otherwise exculpate the accused. Either Y or N should be inserted in this column. This then highlights to COPFS that the material may meet the disclosure test, although the final decision on this will rest with COPFS. 11.104 Examples of what constitutes this type of material have been listed in the Non-Sensitive section, previously in this chapter. 11.105 When dealing with relevant sensitive material that has been identified as falling into this category it is vitally important that RVOs (whether on the operational or intelligence side) notify the RO or SIO to the existence of such material. This material must also be brought to the attention of COPFS staff at the earliest opportunity so that dialogue can be instigated for it to be appropriately dealt with. (See Chapter 12.) 11.106 Where relevant sensitive material of an exculpatory nature has been identified and Y has been inserted in this column. The reason why the officer believes it to be exculpatory should be recorded within the description and relevance column as follows;

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100

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URN

Material Type

Description and Relevance B2 Intelligence dated 10/01/07 provides that John Doe was responsible for a stabbing in High Street, Glasgow, on 1/1/07. Exc; - Brian Smart has been charged with this Attempted Murder

Where lodged

RFS

Note

E x c Y/N

1.

Intelligence report

S c o t t i s h Intelligence Database Urn 12345678/9 refers

15

Chapter 11 Schedules of Relevant Material

11.107 The RO or SIO may instruct that further enquiries are conducted into this type of information to establish its credibility and reliability or if there is other information within the investigation which can prove that the information is unreliable. Where the latter is the case and the RO or SIO takes a decision not to conduct any further enquiries into the information, he or she will record this policy decision, explaining their rational behind it. (See SIO Responsibilities and Policy Files.) Reviewing Officer: Date: Reviewing Depute or Precognoscer: Date:

11.108 The final section of each page of the schedule requires that the RVO appends his or her personal details and dates the column confirming that, as per the date, 'the reviewing officer believes that the following material is sensitive and may be relevant', which is at the top of each page.

Note:
11.109 A further written undertaking will be made by the RVO at specific times during the revelation process, which is explained later.

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Scheduling of Criminal History Records on the Sensitive Schedule


11.110 Where it has been established that a civilian witness has a Criminal History Record there is no requirement to carry out the 3 stage assessment on the record however it must be recorded on the sensitive schedule and revealed to COPFS as follows; URN Material Type Description and Relevance Criminal History Record of witness Joe Bloggs. S Number 1234567/89 refers Where lodged Scottish Criminal H i s t o r y System RFS Note

Criminal History Record

17

Highly Sensitive Schedule


11.111 More comprehensive guidelines in dealing with highly sensitive material are contained within Chapter 12 of this manual, however, in general, the highly sensitive schedule is in exactly the same format as the sensitive schedule with the only difference being that only relevant highly sensitive material should be listed and described on it. 11.112 Highly sensitive material is that material which, if compromised, is likely to: Lead directly to the loss of life; Directly threaten national security; or Lead to the exposure of a CHIS. 11.113 There may be material that might not fall within this definition, but which due to the GPMS marking that the material attracts, cannot be revealed to a Precognoser or Legal Manager because he or she does not hold the required security clearance. Correspondingly, such material must be included in the highly sensitive schedule and revealed to a member of COPFS with the required level of security clearance, i.e. Area Fiscal, Divisional Fiscal or District Fiscal. 11.114 The small numbers of such cases where this situation may arise are likely to involve investigations into serious and organised crime or into terrorist offences.This material is likely to be in the Confidential, Secret or Top Secret categories and must be appropriately GPMS marked in line with the category of material that it contains. 11.115 Only officers (or suitable trained and vetted police staff) within the Intelligence arena will complete these schedules and, on occasions, the material will not have been drawn to the attention of the RO or SIO in the format which has attracted the higher level of marking for example, unsanitised CHIS material.This will be revealed directly on a highly sensitive schedule to staff within COPFS with the appropriate security clearance level, i.e. Area Fiscal, Divisional Fiscal or District Fiscal.

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11.116 The same processes as for the completion of a Sensitive Schedule should be followed and the transmission of them to appropriate COPFS staff is also outlined below and under sensitive material in Chapter 12 of this manual. 11.117 It is vital that when material has been assessed as being highly sensitive and identified as having the potential to weaken the prosecution case, strengthen the defence case or otherwise exculpate the accused, it is brought to the attention of an appropriately vetted member of COPFS staff at the earliest opportunity. Such material may attract public interest immunity considerations and requires close consultation between COPFS and the police.

Submission of Schedules
11.118 Once COPFS have confirmed in writing that a case has been marked for solemn proceedings, then schedules should be prepared and submitted to COPFS, subject to the time scales noted below with due regard for the GPMS markings being taken into consideration. 11.119 There maybe circumstances, particularly in Major Crime Investigations or Intelligence-led Operations, where due to the volume of material generated and resources available to complete the schedules, combined with time scale pressures placed on COPFS, that the schedules will need to be submitted to COPFS in stages (batches) as they are completed. This must be done with the approval of COPFS in order to ensure that COPFS can still satisfy its disclosure obligations. 11.120 In such cases, the RVO will be required to consult with the relevant COPFS staff member who is dealing with the case, and agree timings and stages for submission. It also may be that certain types of material will require to be prioritised for listing on the schedule. The system for adopting staged schedules and the numbering system is described later in this chapter 11.121 If, after the submission of the schedules, further relevant material (whether it be sensitive or non-sensitive) comes into the scope of the investigation, then additional schedules containing only the additional material should be prepared and submitted. Updated versions of the original schedule(s) should not be prepared. 11.122 The time scales for the submission of any additional schedules are also detailed below.

Chapter 11 Schedules of Relevant Material

Time Scales
11.123 For solemn cases, there are four key stages for COPFS that RVOs need to be aware of. These are as follows:

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1) 21 days after CFE (committal for further examination) 2) 2 weeks prior to the case being reported by the Precognoser to the Crown Office 3) 2 weeks prior to the Preliminary Hearing 4) 2 weeks prior to the Trial Diet.

21 Days After CFE


11.124 Initially, schedules should be submitted to COPFS along with the statements. In terms of the ACPOS/COPFS Joint Protocol on Disclosure of Evidence in Criminal Proceedings, statements should be submitted not later than 21 days after Committal for Further Examination (CFE). (This is usually the first appearance of the accused on petition.) Accordingly, all schedules prepared by the RVO must be submitted not later than 21 days after CFE. 11.125 Where, due to the sheer scale of the material held/generated, it is not possible to prepare full and accurate schedules within 21 days, the RVO must liaise with the relevant Solemn Legal Manager within COPFS to agree whether (a) the submission of the schedule should be delayed until it has been completed or (b) batches of schedules should be submitted.

11.127 Thereafter, COPFS will, in terms of the ACPOS/COPS Joint Protocol, disclose the nonsensitive schedule to the defence, along with the statements, 28 days after the committal for further examination.

Two Weeks Prior to Submission of the Precognition to the Crown Office


11.128 COPFS will advise the RO or the RVO (if known) of the proposed date of submission of the precognition to the Crown Office. 11.129 Two weeks before that date, the RVO must either: 1) Submit additional schedule(s) containing any additional material that has been obtained/generated after the submission of the first schedule or set of schedules; and/or

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11.126 Where it is anticipated that further material may be obtained/generated after 21 days which needs to be recorded on a schedule (e.g. where a production is being forensically analysed and the report or statements from the examiners have not been received), the submission of the schedules must not be delayed to await this information. Instead, an initial schedule should be submitted within the 21 days and, thereafter, an additional schedule should be prepared and submitted with the additional information recorded on it.

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2) Provide a written undertaking that no further relevant material has been obtained/generated since the submission of the first schedule or set of schedules. (See below for full details of the undertaking requirement.) 11.130 Note: Where there is a large volume of additional information, the RVO should not necessarily wait for this date to submit additional schedules. For example, if it is agreed that schedules can be submitted in batches, this does not mean that the first batch should be submitted 21 days after CFE and the remainder two weeks before reporting to the Crown Office. The dates for submission of batches should be agreed with COPFS and should be designed to minimise the delay of disclosure of information to the defence.

Two Weeks Prior to the Preliminary Hearing


11.131 COPFS will advise the RO or the RVO (if known) of the proposed date of the Preliminary Hearing. 11.132 Two weeks before that date, the RVO must either: 1) Submit additional schedule(s) containing any additional material that has been obtained/generated after the submission of the last schedule or set of schedules submitted; and/or 2) Provide a written undertaking that no further relevant material has been obtained/generated since the submission of the last schedule or set of schedules. (See below for full details of the undertaking requirement.)

Chapter 11 Schedules of Relevant Material

Two Weeks Prior to the Trial Diet


11.133 COPFS will advise the RVO (who will have been identified by this stage) of the date of the trial diet/sitting. 11.134 Two weeks before that date, the RVO must either: 1) Submit additional schedule(s) containing any additional material that has been obtained/generated after the submission of the last schedule or set of schedules; and/or 2) Provide a written undertaking that no further relevant material has been obtained/generated since the submission of the last schedule or set of schedules. (See below for full details of the undertaking requirement.)

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Undertakings by RVO at Each of the Four Stages


11.135 At the first stage of submission of schedules (i.e. 21 days after CFE), the RVO must also submit a subject report, providing a written undertaking to COPFS that to the best of his or her knowledge and belief there has been full revelation of all relevant material and confirming (if applicable) that there is no sensitive (or highly sensitive) schedule. 11.136 If, at the three subsequent stages referred to above, further additional schedule(s) is/are submitted, the RVO must also submit a subject report providing a written undertaking to COPFS that to the best of his or her knowledge and belief there has been full revelation of all relevant material. 11.137 If, after the initial schedule/set of schedules have been submitted, no additional material has been obtained/generated at any of the three subsequent stages referred to above, the RVO(s) must (at each of the three stages) provide a written undertaking to COPFS that to the best of his or her knowledge and belief, as at the date of the intimation, there has been full revelation of all relevant material that was obtained/generated during the investigation, which has been listed on the schedules previously submitted. 11.138 Subject report templates have been created and should be used at each of the different stages. (See Appendix J, K & L.)

Naming and Numbering Protocol for Schedules (and Additional Schedules)


11.139 Unlike many documents prepared by the police, schedules must not be referred to as versions, as this could convey to a reader that the original has in some way been altered or changed. Submission in stages requires that a structured naming and numbering system is put in place to ensure that the recipient at COPFS is in no doubt where each individual schedule sits in the reporting process for any particular case, bearing in mind that each individual item will have a consecutive URN which must continue in the submission of any subsequent schedules. 11.140 It is appreciated that each force and agency will have their own information management protocols and procedures, but the following naming and numbering protocol of schedules must be followed, namely: FISCALREFNO DEPTCODE SCH EDULETYPE B ATC HNO (with spaces rather than dashes) 11.141 Therefore, a non-sensitive schedule completed by an RVO from 'A' Division CID on 27 February 2009 would read: GL12345678 ACID NS 1 GL12345678 Procurator Fiscal's Reference Number

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ACID Departmental identifier i.e. 'A' Division CID NS Schedule Type: Non-Sensitive NS, Sensitive SS, Highly Sensitive HSS 1 Batch Number 1, 2, 3 etc. 11.142 If an additional schedule is to be submitted, then the only character of the file name to change will be the last digit to signify that it is in addition to the previous, i.e. GL12345678 ACID NS 2 This signifies that it is the second non-sensitive schedule. Note; It is vitally important that this protocol is followed to ensure that the schedules are accepted into the COPFS ICT systems.

Multiple RVOs and Schedules


11.143 In investigations where there have been several RVOs deployed,the naming and numbering protocols will require to be effectively managed. Having identified the Principal reviewing officer, he/she will have overall responsibility for collating all draft schedules from all reviewing officers (with the exception of Intelligence cell RVOs submitting Highly Sensitive schedules who will submit them directly and independently to appropriately vetted COPFS staff).

Chapter 11 Schedules of Relevant Material

11.144 It will be the Principal reviewing officer who will receive the relevant draft schedules and populate one schedule with relevant material (i.e. non sensitive / sensitive). He/ she will add each URN item number to that schedule and add within the footer the previously explained numbering protocol. (i.e. PF ref no., Departmental identifier, batch number). For each subsequent schedule the URN item number should continue sequentially (e.g. URN number 1-50 on non sensitive batch NS1, 51-100 on non sensitive batch NS2). 11.145 It is important to establish the identity of each reviewing officer by using the generic notes (e.g. Generic note number 8 this material was reviewed by DC John Smith ) 11.146 In intelligence-led investigations where a number of different departments such as confidential units or indeed a different law enforcement agency are involved in scheduling relevant material, the matter becomes more complex.This will be particularly relevant where highly sensitive schedules are being submitted directly to COPFS.Again, the key to ensuring that effective revelation is achieved is through good communication between all parties and engaging with COPFS at an early stage.

Transmission
11.147 When the schedules are ready for submission, the RVO will save and store them in line with his or her own respective force or agency information systems and thereafter submit the documents through his/her own Criminal Justice Gateway for onwards receipted transmission to COPFS.

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Criminal Justice Gateway staff must ensure that when forwarding schedules electronically, the `subject field` of the e-mail is populated since this is required to allow COPFS to accept the schedules electronically into the case file.The subject field must include the 10 digit PF reference number otherwise an error message will occur. 11.148 Only schedules up to and including Restricted marking (non-sensitive and sensitive) can be sent electronically. Highly sensitive schedules with a higher GPMS applied will be handled and delivered in accordance with the GPMS protocol. (Appendix P.) Highly sensitive schedules will be delivered to staff within COPFS with the appropriate security clearance level, i.e. Area Fiscal, Divisional Fiscal or District Fiscal. A list of appropriately vetted COPFS staff will be available within respective forces' Intelligence Departments.

Amendment of Schedules
11.149 Once received by COPFS, the Precognoser, in consultation with the relevant Solemn Legal Manager, will conduct a thorough examination of the contents of the non-sensitive and sensitive schedules prior to determining what material should be disclosed and by what means (i.e. by access or provision of copies). For highly sensitive schedules, this will be Divisional, District or Area Procurators Fiscal. 11.150 As previously mentioned, where the description of the material is insufficient for COPFS to make a determination, this could result in the schedule being returned for amendment. Also, where material is found to have been listed on the wrong schedule (e.g. should be sensitive rather than non-sensitive or vice versa) or the schedule is otherwise inaccurate, then it will be returned to the submitting RVO via his or her force's Criminal Justice Gateway for amendment, accompanied by an instructional memo. 11.151 The amended schedule will thereafter be returned to COPFS via the same process, ensuring that the data audit trail is maintained.

Storage and Retention


11.152 As the schedules are case related documents, it will be the responsibility of each individual force or agency to ensure that they are appropriately retained and stored in a durable format in line with the ACPOS Policy on the Disposal of Crime Records and Productions. (see Appendix C) 11.153 Again, cognisance of the GPMS marking scheme must be taken into consideration in how sensitive documents are handled and stored. 11.154 Draft schedules or lists used to prepare the final schedule(s) need not be retained or described.

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11.55

General Major Crime Administration (HOLMES and MIRSAP)


Agreement has been reached with COPFS for the following procedures to be adopted when dealing with documentation obtained or generated during major crime investigations; 11.156

Actions
In major investigations, there is no requirement to routinely individually list every action generated during the enquiry within the schedules. Each individual action must be assessed by reviewing officers to determine relevance, however, as actions are usually raised from a source form or document and the action either generates or results in the obtaining of another document or material, for example a statement or a production, which appears elsewhere on the schedules, then there is no requirement to individually list that action. However if the action is exculpatory in nature it must be listed within the schedule individually giving a description of why it is exculpatory. 11.157 In relation to actions where a document or material has not been obtained or generated as a result of its being raised, careful consideration must be given to these during the reviewing process and individually listed if relevant. 11.158 Note; It may be possible to block entry such actions (where no document or material has been obtained or generated as a result) particularly where they have been referred on the instructions of the SIO as he or she has taken a decision that it is unnecessary to follow up. Consultation with the respective Solemn Legal Manager within COPFS should be undertaken to agree this strategy and whether an additional note would require to be formulated if appropriate. As before, the final decision on the appropriateness of block entries must rest with the Solemn Legal Manager as they must be satisfied that a block description of multiple items still enables them to keep the materiality of each item under review. 11.159

Chapter 11 Schedules of Relevant Material

Messages
Similar to Actions, messages received into a major incident room still require to be assessed by reviewing officers, however again if they lead to a document or material being obtained or generated there is no requirement to individually list them within the schedules. Any messages of an exculpatory nature will require to be individually listed outlining the reason why they are. For example;

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URN

Material Type

Description and Relevance

Where lodged

EXC Note * Y/N

Message

Within Anonymous phone call received M a j o r by DC Smith into incident Incident room Anytown Police Office at r o o m , 1600hrs on 1st February 2010. Anytown Caller stated that Joe Bloggs was Po l i c e 1 responsible for the murder and Office, then hung up. Exc - Brian Smart has already been charged with murder. Anytown. Message No.2 refers

11.160 Where a document or material has not been obtained or generated as a result of a message being received, careful consideration must be given to these during the reviewing process and individually listed if deemed relevant. Note; It may be possible to block entry some messages (where no document or material has been obtained or generated as a result). Consultation with the respective Solemn Legal Manager within COPFS should be undertaken to agree this strategy and whether an additional note would require to be formulated if appropriate. As before, the final decision on the appropriateness of block entries must rest with the Solemn Legal Manager as they must be satisfied that a block description of multiple items still enables them to keep the materiality of each item under review. 11.161 Other documentation or material obtained or generated in major investigations Other documentation or material, such as other documents,electronic transmissions officers reports etc which have been obtained or generated during the course of a major investigation will still require to be reviewed and the 3 stage assessment rigorously applied. 11.162 The same criteria should be applied to this material as with messages and if it leads to a document or material being obtained or generated which appears elsewhere on the schedules then there is no requirement to individually list each item. Material which has been assessed as being exculpatory in nature will require to be individually listed outlining the reason. 11.163 Correspondence between Police and COPFS There is no requirement to schedule any of this material unless it falls into the exculpatory category. 11.164 Since 5 October 2009 all investigations commencing on or after that date which resulted in cases being reported to COPFS and being prosecuted in the High Court required Schedules of relevant material to be submitted. From 4 May 2010 all investigations commencing on or after that date which result in solemn proceedings being initiated by the Crown will require the submission of schedules.

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Chapter 12

Sensitive and Intelligence Material


Introduction
12.1 Dealing with the revelation of sensitive material is one of the most challenging aspects for the police in relation to Disclosure. This chapter is designed to provide practical advice and guidance to operational officers in how to deal with revelation to COPFS in respect of sensitive and intelligence material, personal sensitive information, highly sensitive material, secret and sensitive techniques which may be relevant to an investigation. More comprehensive guidelines for specialist intelligence departments have been produced and are contained within the Guidance on Disclosure of Sensitive and Intelligence Material in Summary & Solemn Procedure. 12.2 There is a duty placed upon the police to gather information and intelligence in order to prevent and detect crime, prevent disorder, safeguard the public and on matters of national security. In this regard, the detection of crime constitutes one, but not all, of the functions of the police. Consequently, in determining whether intelligence or information may be relevant to an investigation and therefore revealable to COPFS, the police need to apply considerable professional judgment and assessment to such material. 12.3 It is clear that, in the majority of instances, decisions regarding revealing material which may be relevant to an investigation to COPFS may be relatively straightforward.The legal requirement upon the police is to reveal to COPFS all material which may be relevant whether it is sensitive or non-sensitive. The challenges surrounding the disclosure to the defence of sensitive material evidence are more complex, and careful consideration and consultation will be required. However, the final decision on disclosure will rest with COPFS, having carefully weighed up all the competing interests. 12.4 This guidance applies to all cases whether the case is prosecuted under solemn or summary procedures.

Government Protective Marking Scheme (GPMS)


12.5 Chief Constables have been mandated to adopt GPMS since 2001 and it is a formal compliance requirement of ACPOS Information Systems Community Security Policy. COPFS is also obligated to comply with the scheme.

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12.6 When providing any sensitive information to COPFS, the correct protective marking should be applied to the material consistent with the level of sensitivity of its contents. This will determine the manner in which the material is transmitted, to whom it is conveyed and how it is stored by COPFS. In this regard, the police and COPFS will use the existing Government Protective Marking Scheme (GPMS) to provide relevant protection, handling and secure storage of material classified as PROTECT, RESTRICTED, CONFIDENTIAL, SECRET or TOP SECRET. 12.7 Therefore, it is vital that officers or police staff applying GPMS marking to documents must be fully conversant with the scheme and accurately apply the appropriate marking to sensitive material. Under revelation obligations, officers or police staff may be required to justify why they believe the material to be sensitive and why it attracts the level of marking it has been afforded. 12.8 Full guidance on the Government Protective Marking Scheme can be found within Appendix P.

General

Chapter 12 Sensitive and Intelligence Material

12.9 The police, COPFS and other law enforcement agencies are under an obligation to comply with Article 8 (right to privacy) and Article 2 (right to life) of the ECHR and, in consequence, they are required to have regard for the interests of victims, witnesses and any other parties involved in the investigation and prosecution of crime. 12.10 It is obvious that disclosure of some types of personal sensitive information has the potential to expose victims and witnesses to harm. Disclosure of personal information contained within a statement may put the witness at the direct risk of intimidation or reprisals. Similarly, disclosure of sensitive information obtained from another agency, e.g. a housing agency, may put their premises or staff at risk. 12.11 There is, therefore, an obligation to protect the safety of personal sensitive information of victims and witnesses, and also to respect their privacy. Likewise, on occasions, there is an obligation to protect organisations that provide information for an investigation. 12.12 Similarly, intelligence, covert police tactics and techniques often require to be protected in order to safeguard the prevention, detection and prosecution of crime, and it would not be in the public interest to disclose material relating to such matters. 12.13 Nevertheless, it is clear in terms of the ECHR that the accused's right to a fair trial must ultimately take precedence over any other persons right to privacy.The right to a fair trial in Article 6 is unqualified, whereas the right to privacy is qualified by reference to the need to protect the rights and freedoms of others. Equally, it is imperative that where disclosure of sensitive information is not required for a fair trail, that information should, as far as possible, be kept confidential.

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12.14 Personal sensitive information can be found within a variety of documentation which has been obtained from a number of organisations during an investigation. Information contained within medical, social work, housing, benefit agency records etc, if disclosed, may expose the subject or the source of the information to ongoing harassment or worse. Care therefore needs to be taken by both the police and COPFS when dealing with such material. 12.15 The processes to be adopted by the police when revealing sensitive and intelligence material which may be relevant to COPFS will differ dependent on its nature or whether a person is to be prosecuted under solemn or summary procedure. 12.16 In solemn cases, in addition, and after the submission of a Standard Prosecution Report (SPR), the police will make use of schedules to reveal material which may be relevant to COPFS, whereas in summary cases, the SPR and appropriately protectively marked subject reports will be used to reveal material. (See Chapters 10 and 11.)

Interpretation

12.18 There is an important distinction between all intelligence owned by a police force and intelligence that may be relevant to the case in question and which should be revealed to COPFS. 12.19 It is not sufficient to say that all intelligence pertaining to an accused should be revealed: such a decision may be the path of least resistance, but would place a significant additional resource and bureaucratic burden on the police and COPFS. Smith v HMA clearly indicates that the police should undertake a sifting process to determine what to reveal to prosecutors. 12.20 Smith v HMA also clearly explains, as clarified by the Appeal Court in HMA v McDonald that the Crown must be in possession of all relevant material to be able to fulfill its disclosure responsibilities, and the police must therefore reveal all material which may be relevant to allow COPFS to perform its role. 12.21 There is also a duty on an investigator to pursue all reasonable lines of enquiry, whether these point towards or away from a suspect.

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12.17 The case of Smith v HMA observed:Clearly, in reporting the results of their investigation, the police must exercise a power of selection. It would be absurd to suggest that all their results should be submitted. and ...to put before the Procurator-fiscal everything which may be relevant and material to the issue of whether the suspected party is innocent or guilty. We repeat, it is not for the police to decide what is relevant and material, but to give all the information which may be relevant and material.

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12.22 What is reasonable will depend upon the circumstances of a particular case. Investigating officers, particularly Senior Investigating Officers, may pursue lines of enquiry to test the veracity of intelligence, which can then be confirmed or proved to be inaccurate and can be discounted. Consequently, that intelligence which may have a direct bearing on the case, and which cannot be shown through enquiries to be inaccurate, should also be revealed to the prosecution. 12.23 As detailed throughout this manual, the police have a duty to reveal all information which may be relevant to the Crown, and this chapter further extends the duty of the police to include the following information.. 12.24 Relevant Sensitive Material is defined as anything that may appear to an investigator, SIO, RO, RVO, Intelligence Officer or other officer to have some bearing on any offence under investigation or any person being investigated or on the surrounding circumstances and he or she believes its disclosure would be likely to: Give rise to the risk of serious injury, or death, to any person; Obstruct or prevent the prevention, detection, investigation or prosecution of crime; or

Chapter 12 Sensitive and Intelligence Material

Cause serious prejudice to the public interest. 12.25 Relevant Highly Sensitive Material is defined as anything that may appear to an investigator, SIO, RO, RVO, Intelligence Officer or other officer to have some bearing on any offence under investigation or any person being investigated or on the surrounding circumstances and, should it be compromised, would be likely to: Lead directly to the loss of life; Directly threaten national security; or Lead to the exposure of a CHIS. 12.26 Note:There may be material that might not fall within this definition, but which, due to the GPMS marking that the material attracts, cannot be revealed to a precognoser or legal manager because they do not hold the required security clearance.

Reviewing and Assessment Process


12.27 The reviewing and assessing process will involve examining, inspecting, viewing or listening to all the material that has been obtained or generated during the course of the investigation. 12.28 During the reviewing process, a relevancy test is applied to the material, with all information which may be relevant to the case being assessed to determine whether it contains any information which is sensitive.

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12.29 If part or all of the material contains sensitive personal information, then this will determine the processes to be adopted and the manner in which the information is revealed to COPFS. 12.30 To assist the officer in determining what should be considered relevant sensitive material, the following associated public interests should be taken into account: The ability of the security and intelligence agencies to protect the safety of the UK; The willingness of foreign sources to continue to co-operate with UK security and intelligence agencies and law enforcement agencies; The willingness of citizens, agencies, communications service providers, CHIS etc to give information to the authorities in circumstances where there may be some legitimate expectation of confidentiality (e.g. Crimestoppers material); The public confidence that proper measures will be taken to protect witnesses from intimidation, harassment and being suborned; The safety of those who comply with their statutory obligation to report suspicious financial activity (Whilst they are under a statutory obligation and therefore do not give suspicious activity reports in confidence, their safety is a consideration to be taken into account in disclosure decisions.); The ability of law enforcement agencies to fight crime by the use of covert human intelligence sources, undercover operations, covert surveillance etc; The protection of secret and highly sensitive methods of detecting and fighting crime; The freedom of investigators and prosecutors to exchange views frankly about casework; The protection of the personal lives of witnesses and other third parties. 12.31 This is not a checklist. Other items not listed here may be sensitive and not in the public interest to disclose, but, equally, items listed above may not cause any harm to the public interest if disclosed. The examples are not 'classes' of material. Each item must be considered independently before it is revealed to COPFS. 12.32 In order to make a proper assessment of whether sensitive material is disclosable or requires to be withheld on public interest grounds, COPFS will, dependent on the GPMS handling restrictions, need to be fully informed of its contents, or given a copy, or allowed access to view the material or part of it. In cases where, due to the level of sensitivity of the material (for example), it has been classified as secret or top secret and it is not possible to describe the nature of the material in sufficient detail to enable COPFS to determine whether or not it should be viewed, it will be for the Intelligence RVO, in consultation with the Force Director or Deputy Director of Intelligence, to make arrangements with an appropriately vetted COPFS member of staff to view the material with appropriate levels of physical and personal security.

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Summary v Solemn Proceedings


12.33 The duty of the police to reveal to COPFS all material which may be relevant and which has been obtained or generated during a criminal investigation applies in both summary and solemn procedure. However, there are distinct differences in the processes in how revelation is achieved. 12.34 All officers must have a clear understanding of the different processes to be adopted to ensure that the police have complied with their legal responsibilities. 12.35 The challenge for the police is the revelation to COPFS of sensitive material which may be relevant, particularly in the context of summary proceedings and the subsequent disclosure of such material if it meets the materiality test. 12.36 Most police officers or police staff will not normally be able to access information in respect of sensitive sources or intelligence, which are necessarily protected to ensure that legal, security and procedural duties of care are complied with. In this regard, the Scottish Intelligence Database (SID) and other covert intelligence systems have a hierarchical security structure to which most staff will not be afforded access. This obviously creates a challenge in respect of Reviewing and Reporting Officers and others with a responsibility to manage the revelation process to COPFS.

Chapter 12 Sensitive and Intelligence Material

Summary
12.37 In respect of a Reporting Officer investigating and reporting summary cases to COPFS: If, during enquiries, the officer becomes aware that sensitive information which may be relevant to the investigation and which either points towards the innocence or guilt of the accused is recorded on SID, then it will be that officer's responsibility to undertake a check of SID (which may include obtaining the assistance of staff within an Intelligence office) to determine whether there is any impactive information pertaining to the case the officer is reporting. 12.38 In effect, the officer should ask:Do the police hold anything pertaining to the case under consideration which will assist in providing a further line of enquiry to help prove the case, or is there relevant information which could undermine or weaken the case or otherwise exculpate the accused?' If the answer to such a query is negative, then there is nothing which will require to be revealed. If the answer is positive, then the following procedures must be implemented. 12.39 The SPR is designed to reveal and fully inform COPFS of all information which may be relevant that has been obtained or generated during the enquiry, so that COPFS can make an informed decision as to whether to mount a prosecution or not. It is therefore vital that the police accurately report all the circumstances and reveal via the SPR details of all material which may be relevant, whether it points towards or away from the guilt of the accused.

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12.40 Recent changes have been made to the criminal justice system under the summary justice reform programme and, if COPFS decides to prosecute summarily, then the accused is provided with a summary of the evidence along with the copy complaint.This summary is ostensibly taken from parts of section 4 of the SPR, which can be edited by COPFS (summary of evidence). 12.41 Also within section 4 of the SPR is a Remarks Section where free text can be inserted to reveal to and advise COPFS of any further information which may be relevant. This part of section 4 is not disclosed to the defence. However, disclosable information contained there will be extracted and included in the summary of evidence provided to the accused. (See Chapter 10, Reporting to COPFS.) 12.42 This Remarks section of the SPR has and should continue to be used to reveal any sensitive information which may be relevant, as long as its nature does not attract a protective marking of CONFIDENTIAL or above. 12.43 However, if any CONFIDENTIAL, SECRET or TOP SECRET material which may be relevant is identified, this must be submitted via a separate protectively marked subject report or under the cover of a separate letter. 12.44 It is not anticipated that this will occur frequently in summary cases. However when such material is identified, such reports will be completed and submitted to COPFS by officers from within specialist intelligence departments. 12.45 The sensitive information which may be relevant should be described and the reason for its sensitivity explained. If the information has come from SID, a short description of the contents of the sanitised log(s) should be included, as well as the 5x5x5 grading that has been applied to it and the date of its submission. For an example of this, see chapter 11 paragraph 11. 12.46 In investigations where an SPR has already been submitted to COPFS and subsequent sensitive information which may be relevant has come to the attention of the RO, then that information should be revealed via an appropriately marked subject report to COPFS, again outlining the information as above.

Solemn
12.47 In solemn proceedings, the amount and volume of information that will require to be revealed is much greater. Additionally, due to the complex nature of such cases, there is an increased likelihood that sensitive and intelligence sources will have been used to gather information to assist the enquiry.There is an identified need, therefore, for systems to manage the increased revelation and disclosure burden and to take cognisance of the use of sensitive and highly sensitive sources.

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12.48 Where a case is to be prosecuted under solemn procedure, in addition to the SPR, the reviewing officer (RVO) or intelligence RVO (highly sensitive) must complete and submit schedules of relevant material to COPFS. When schedules are requested to be submitted, or if they have been started in anticipation that the case will be dealt with solemnly, this should be done in conjunction with the reviewing and assessment process during their compilation. (See Chapter 4 Responsibilities & Chapter 11 Schedules of Relevant Material)

Schedules of Relevant Sensitive and Highly Sensitive Material Types of Schedules


12.49 Dependent upon the nature, assessment and sensitivities surrounding the material that requires to be revealed to COPFS, the RVO will have at his or her disposal two different schedule types in which to record sensitive material which may be relevant. 12.50 They are: Schedule of Relevant Sensitive Material

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Schedule of Highly Sensitive Material 12.51 In general, each of the 2 schedules are similar in format, (See Appendix E and F) and must contain all sensitive material which may be relevant that has been obtained or generated during the course of the investigation. 12.52 The transmission process to COPFS will differ dependent upon the level of sensitivity contained within the material, and the appropriate GPMS marking will be applied to reflect this. (For full guidance on the completion of schedules and the transmission processes, see Chapter 11.) 12.53 The sensitive schedules will contain an accurate description of all sensitive material which may be relevant and has been obtained or generated during the investigation and whether or not it has already been revealed to COPFS via the SPR. 12.54 The sensitive schedule will be marked RESTRICTED and, in most instances, be completed by operational officers, who will record on the schedule any sensitive information which may be relevant and which has been passed through to the operational side, therefore not breaching any of the intelligence firewalls. 12.55 The sensitive schedule can be electronically transmitted to COPFS for the attention of precognosers and solemn legal managers within COPFS. 12.56 Material which has attracted a GPMS marking of CONFIDENTIAL or above will be completed and submitted to COPFS by intelligence staff via the highly sensitive schedule.

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12.57 As with the non-sensitive schedule, the sensitive and highly sensitive schedules should be used in addition to the SPR to reveal to the appropriate COPFS staff the existence of sensitive material which may be relevant. 12.58 Particularly in intelligence-led operations, there is a possibility that a number of highly sensitive schedules will be completed by officers within different specialist intelligence departments. Consultation should take place among all RVOs to ensure that all sensitive information which may be relevant has been appropriately recorded. 12.59 The reasons why the material is assessed as being sensitive must be recorded.The following types of material have been identified as having the potential of being sensitive and must be considered, if relevant, for insertion on the appropriate sensitive schedule: 1) material relating to national security 2) material received from intelligence and security agencies 3) material relating to intelligence from foreign sources, revealing sensitive gathering methods 4) material received by police on an undertaking by them that the information is received

6) material relating to informants, undercover police officers and others at risk if identified 7) material revealing police surveillance location(s) or the identity of any person allowing that location to be used 8) material revealing techniques and investigative methods relied upon by the police 9) facilitates the commission of other offences or hinders the prevention and detection of crime 10) internal police communications 11) material upon the strength of which search warrants were obtained 12) ID parade participant personal details 13) material generated by an official concerned with the regulation of corporate bodies or financial activities 14) material generated by social services, an (area) child protection committee or other party and relating to a child or young person 15) police intelligence information 16) restricted personal information, such as addresses, telephone and vehicle numbers 17) material relating to the private life of a witness (including witness Criminal History records; medical and social work records) 18) police misconduct information.

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5) material relating to the use of a telephone system and supplied for intelligence purposes only

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12.60 The above list is not exhaustive. However, during the three-stage assessment and reviewing process, the column within the sensitive schedule should be used to indicate what category the material falls into. This will be done by inserting the corresponding generic sensitive note number in the respective column. (See Chapter 11.)

Responsibilities Reporting Officer (RO)


12.61 In general terms, the reporting officer has overall responsibility for the conduct of an investigation where an SIO has not been appointed. ROs are not confined to reporting summary cases and may report cases to COPFS which end up being prosecuted in the solemn courts. 12.62 Depending on the scale of the enquiry, the RO will carry out a range of differing functions and have overall responsibility for: Conducting lines of enquiry Recording and retention of relevant material

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Production management Compilation of an accurate SPR Ensuring timeous submission of statements and productions to COPFS Submission of additional information to COPFS Conducting enquiries as directed by COPFS. 12.63 In relation to sensitive material, the RO must ensure that if he or she is aware of the existence of any such material, then the appropriate steps must be taken to review it and, if relevant, reveal its existence to COPFS via the SPR/subject report and schedules in solemn cases.

Senior Investigating Officer (SIO)


12.64 Where an SIO has been appointed in a major crime investigation or operation and where, at an early stage, it is apparent that a considerable amount of sensitive information will be gathered, the SIO may consider appointing an RVO or RVOs on the intelligence side to deal with the reviewing, assessment, recording and revealing of sensitive material which may be relevant to COPFS. 12.65 As the RVO or SIO on the operational side will only see sanitised material, any highly sensitive material will not be reviewed by him or her.This will require to be completed within the intelligence area where the material sits and, due to the source of the information, will be revealed directly to COPFS, sometimes outwith the SIOs knowledge. 12.66

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In most major crime investigations or intelligence-led operations, it is recommended that the schedule(s) are started at an early stage.The SIO will need to consider at what stage the schedules should be prepared and when to appoint the reviewing officer(s) (dedicated or otherwise) to manage the reviewing, assessing, recording and revelation process.

Intelligence Officers
12.67 It will be the responsibility of the Investigating or Reporting Officer if, during the investigation, he or she becomes aware of sensitive information, which either points towards the guilt or innocence of the accused, to undertake a review of the files, records or systems (including the Scottish Intelligence Database) to determine whether there is any relevant impactive information pertaining to the case being reported.This should be undertaken in conjunction with intelligence officers. 12.68 Intelligence officers, on a daily basis, review, assess, research and develop unsanitised information which has been submitted into SID. One of their primary functions is to ensure that actionable intelligence is forwarded to operational officers in a sanitised format to assist in the prevention and detection of crime.

12.70 This officer will then determine whether it is 'relevant material' and deal with revelation to COPFS via the sensitive schedule for solemn cases and via either the SPR or subject report, as outlined earlier, for summary cases. 12.71 The exception to this rule would be where the information is of a highly sensitive nature (confidential or above) and, because of its sensitivity, it is unable to be passed through to the operational arena in a sanitised format. This information, if it is relevant to the investigation/case, should be revealed directly to COPFS by the intelligence officer, after consultation with an Intelligence Manager, either by a CONFIDENTIAL (or above GPMS marking) subject report in summary cases or via the highly sensitive schedule in solemn cases. 12.72 Where a major incident room (MIR) has been established in support of a major crime investigation and an intelligence cell has been created to assist the investigation, it will be the responsibility of the Intelligence Cell Manager, or an intelligence officer whom he or she has appointed to deal with revelation issues, to notify the SIO of intelligence whether it points towards the guilt or innocence of the accused. This will be provided in the agreed message format (HOLMES or other format) and by the procedures and guidance laid down for the dissemination of intelligence between intelligence cells and incident rooms.

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12.69 The vast majority of information submitted into SID is of an inculpatory nature. However, should intelligence officers become aware of any information which could materially weaken the prosecution case, materially strengthen the defence case or is exculpatory to an ongoing investigation or previously reported case then it is their responsibility to identify the officer in charge of the enquiry or case, notify him or her and draw his/ her attention to a sanitised version of this information.

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12.73 If an investigator or an RO in a summary case is unsure about revelation of sensitive material, guidance should be sought from an Intelligence Manager within the police or a legal manager at COPFS.

Processes
12.74 The police hold intelligence derived from a wide variety of sources, some human, others technical. They primarily utilise computer systems and programmes to store such intelligence material electronically. On occasion, they may retain and store such material in hard copy. 12.75 Under the Data Protection Act 1998, intelligence held by the police is owned by the Data Controller: in the case of a police force, the Chief Constable of the force that collected that intelligence; in the case of the SCDEA, the Director General of the Agency. 12.76 Principally, the Scottish police service uses the Scottish Intelligence Database (SID) to store intelligence. SID is not an evidential system, nor was it designed to provide material to an evidential standard.This said, individual sanitised intelligence logs may be printed in hard copy for use and wider dissemination within the police, taking account of the handling instructions designed to protect intelligence material and the source of such material from unnecessary exposure, compromise or risk. 12.77 The police may use other computer systems to store information for example, the PNC, Impact Nominal Index (INI),Violent and Sex Offender Register (ViSOR), Clue 2 Operations Management, HOLMES, PIMS, COPS, Pegasus and Confidential Unit systems. Material held in such system may be revealable, although it is recognised that all these systems, excluding HOLMES, may not be designed to produce material to what may be termed an evidential standard. Nevertheless, material contained within such systems may need to be reproduced as printed records or by taking screen prints and producing such in hard copy. 12.78 In this regard, where a police force or the SCDEA stores intelligence or information about any person, operation or enquiry in a system (within that force or agencys control) other than SID, a summary of that intelligence MUST be entered into SID, with an appropriate reference, to allow the identification of that information for revelation purposes by any officer via an Intelligence Unit and subject to existing SID and other security measures or access protocols. Where, such information is not entered into SID, a Reviewing Officer needs to be appointed to examine such systems to determine whether relevant information is held within them.

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Intelligence Processes
12.79 The police service use the 5x5x5 grading system in respect of intelligence (Appendix Q). The grading system provides an indication of: the reliability of the source of the intelligence; the reliability that can be placed on that intelligence; and a handling code which gives clear guidance on who that intelligence can be shared with or disseminated to. 12.80 Police officers should refer to theACPOS manual for the Management of Police Information (MOPI) for specific guidance on the 5x5x5 grading system, police procedures for managing and handling intelligence, source protection principles and specific procedures and protection to be afforded to intelligence sources. 12.81 It is recognised that the Scottish police service has a duty to seek out and pursue information and intelligence which may assist the police to prevent and detect crime, protect the public and safeguard national security. Following a crime being committed, the police may be in receipt of numerous items of intelligence, some contradictory or speculative, indicating the person or persons responsible. Such information may come from a variety of sources, both technical and human, with varying degrees of assessed reliability.The provenance of intelligence must be accurately assessed to inform decisions as to what should be revealed or otherwise. 12.82 The police must create a clear distinction between information which has been received from whatever source, is clearly evidential in nature and should be submitted in statement format, and intelligence which should be submitted via the Scottish Intelligence Database (SID).This is best exampled where an individual provides information which is taken in the form of a statement and, thereafter, provides further information which is clearly of intelligence value and which is not intended by the person providing it to be given in evidence.This should be submitted by the police officer receiving it in a SID intelligence log. In the case of officers attached to a major inquiry, the statement would be submitted to the Major Incident Room (MIR) for entry to HOLMES and the intelligence submitted via SID to an intelligence cell or office. 12.83 In the case of major inquiries, particularly those using the HOLMES system, intelligence cells attached to the inquiry will have provided intelligence in message format to investigators in order that they can trace, interview and eliminate suspects, confirm or disprove hypotheses, or prove the intelligence to be inaccurate. Messages to HOLMES based on intelligence should be examined to determine whether they are relevant and should be revealed. Where this is the case, they should be placed on the sensitive schedule.

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12.84 Care needs to be taken in respect of incremental or cumulative harm that may result from messages provided by intelligence cells to HOLMES which, if they were revealed, might expose an intelligence source. In this regard, such matters must be reviewed by intelligence cells staff in conjunction with the SIO or Reviewing Officer to determine whether such information needs to be afforded additional protective measures. 12.85 Since material placed into a Major Incident Room, particularly those using the HOLMES system, is potentially revealable, it is important that police officers undertaking investigations in support of an inquiry do not place intelligence onto HOLMES messages or other documents submitted to the incident room.This is the role of the intelligence cell. Any intelligence acquired by an investigator during an enquiry must be submitted as a SID log to an intelligence cell. 12.86 In cases of doubt as to whether intelligence material is relevant and therefore revealable or not, the police should consult with COPFS.Where sensitive material or sources are involved, such consultation will occur at a senior level within both organisations. 12.87 It is imperative, in order to provide appropriate protection to intelligence sources, that intelligence staff within the police effectively sanitise intelligence. Only sanitised intelligence logs will initially be revealed to prosecutors. Unsanitised intelligence logs and intelligence sources will not be revealed unless they have a direct bearing on the ability of the prosecution to meet its duty to secure a fair trial.Any requests by prosecutors to reveal intelligence sources must be directed to the Director of Intelligence (or his/her deputy) within the respective force or agency. Procedures relating to requests to reveal the identity of CHIS are set out in the section on CHIS herein. 12.88 A sanitised intelligence log is an intelligence log where the source of the information is excluded and any references within the log that would explicitly or implicitly identify the source have been removed, i.e. the intelligence has been sanitised.

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Analytical Products
12.89 Any analytical material which informs the decision-making process during any enquiry should be revealed to COPFS. However, the rules regarding sensitivity and protection of sources of intelligence which would inform such analytical constructs will equally apply to such material, including whether to place them on sensitive or highly sensitive schedules. The procedures outlined for revelation in summary procedures will equally apply where analytical material has been used during such enquiries. 12.90 Confidential and other specialist intelligence units who use analytical products constructed from secret and sensitive intelligence sources, including that emanating from interception of communications, should examine that material and, where it is determined that it may be relevant to a prosecution, reveal that material to COPFS, either on a sensitive or highly sensitive schedule or under cover of a secret letter in summary cases to COPFS.

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12.91 Police forces should create a clear separation between evidential and intelligence analytical products, employing two analysts for this purpose, i.e. an evidential analyst who may appear in court and give evidence as to their analytical products, and an intelligence analyst who would not give evidence, merely producing analytical products to inform decision makers including SIOs.

Relevance of Historic or Other Intelligence Material


12.92 Intelligence held by the police on a person may date back a number of years and may, in the case of a person involved in serious or organised crime, amount to a considerable volume of information. In this regard, only that material that is considered relevant to the crimes charged should be examined to determine whether there is a requirement to reveal any of that material.There may also be the potential to block entry relevant historic inculpatory intelligence of a similar or repetitive nature. Reviewing Officers should be aware of this in an attempt to reduce the bureaucracy involved when preparing schedules for revelation purposes. (For further details see chapter 11, Paragraph 11.54 )

Retention of Intelligence

The Intelligence Officer will ensure that, if the SID weed period for that log has been set to one year, it will be changed to a minimum weed period of three years. The following form of words should be entered into the Action taken field in the SID log: "This log has been identified as being relevant material in relation to the summary / solemn case against (name of offender), Police report Ref No (AB12345678) refers and has been revealed to the PF at (location). This log should be retained.

Revelation of Intelligence Owned by Another Police Force or Agency


12.94 Under the Data Protection Act 1998, intelligence material is owned by the police force or law enforcement agency which collected that material. While the Scottish police service operates a shared intelligence system, SID, an investigator or other officer may become aware that relevant intelligence owned by a force or agency other than his or her own may have a bearing on the case. While it is accepted that all police officers

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12.93 If an officer (Reporting Officer, Reviewing Officer, etc.) identifies that an intelligence log is relevant to an investigation and has revealed its existence to COPFS, he or she should inform their Local Intelligence Officer or relevant intelligencecell / Department that the log has been identified as being relevant and been revealed. The Action Taken field of the SID log should then be updated by the Intelligence Officer with this information and that the log requires to be retained.

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have access to such intelligence, they can only act upon it in accord with the 5x5x5 handling instructions. 12.95 Consequently, where an SIO, RVO or RO becomes aware that another force or agency holdsrelevant intelligence, particularly if it may weaken the prosecution case, strengthen the defence case or exculpate the accused, and the handling code prevents revelation by the investigating agency, they should contact the originating agency, copying COPFS in on the communication; make them aware of the circumstances and request that they reveal that material to COPFS. 12.96 Where no such authority is given, the SIO, RVO or RO will draw the attention of COPFS to the fact that the officer is aware that another organisation hold intelligence that will impact on the ability of COPFS to ensure a fair trial. COPFS will thereafter contact that organisation and arrange for the material to be revealed. 12.97 In a joint investigation undertaken by one or more police forces or agencies, they may agree at the beginning of the investigation that one of the parties will accept responsibility for revealing, if necessary, any relevant intelligence material, taking cognisance of source protection protocols and, in specific instances, following discussion with the other organisations' senior management.

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12.98 However, it may be the case, that different agencies may have separate reviewing officers.This is particularly the case where the Intelligence Agencies are involved. In such circumstance where multiple reviewing officers are appointed, it may be appropriate to nominate a lead or principle reviewing officer to oversee all aspects of the revelation process and act as a Single Point of Contact (SPOC) with COPFS. Clear lines of responsibility should be agreed and drawn up between the different agencies. (See also Chapter 8)

Dealing with Sensitive Material That Satisfies the Materiality Test


12.99 COPFS has a duty to consider whether relevant sensitive material satisfies the disclosure test and is thus material evidence that may be required to be disclosed. 12.100 To assist COPFS to decide how to deal with disclosable sensitive material, the investigator SIO, RO or RVO should provide detailed information dealing with the following issues: The reasons why the material is said to be sensitive; The degree of sensitivity said to attach to the material in other words, why it is considered that disclosure will create a real risk of serious prejudice to an important public interest; The consequences of disclosing such material to the defence; The material itself; The category of the material; The apparent significance of the material to the issues in the trial
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The involvement of any third parties or outside agencies in bringing the material to the attention of the police; Where the material is likely to be the subject of an order for disclosure by the trial judge, what the police view is regarding continuance of the prosecution; Whether it is possible to disclose the material without compromising its sensitivity. 12.101 To assist in determining the degree of sensitivity as above, consideration should be given to the fact that the public interest may be prejudiced either directly or indirectly through incremental or cumulative harm. 12.102 Examples of direct harm are: exposure of secret information to enemies of the state; death of or injury to an intelligence source through reprisals; revelation of a surveillance post and consequent damage to property or harm to the occupier; exposure of a secret or highly sensitive investigative technique. 12.103 Examples of incremental or cumulative harm are: exposure of an intelligence source that does not lead to a risk of death or injury, or any reprisal, to that intelligence source, but which discourages others from giving information in the future because they lose faith in the system; revelation of a surveillance post, leading to a reluctance amongst others to allow their premises to be used (For more information on police procedures to protect persons allowing their premises to be used as observation posts, see the decision in R v Johnson [1998] 1 WLR 1377 and inclusions in the ACPOS Manual of Standards for Surveillance.); exposure of an investigative technique that makes the criminal community more aware and therefore better able to avoid detection; exposure of material given in confidence, or for intelligence purposes, that may make the source of the material, or others, reluctant to cooperate in the future (e.g. Crimestoppers material); an active denial that a source was used in a particular investigation, leading to the inability to deny it in future cases where one was used, thereby impliedly exposing the use of a source. In relation to general enquiries, the Crown should neither confirm nor deny the use of a source. 12.104 Police officers should be aware that COPFS must be satisfied that the risk is real, not fanciful. The prosecutor must be in a position that, if required, he or she can explain to the court the ground upon which it is asserted that there is a real risk of serious prejudice to an important public interest.

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12.105 When determining whether to apply for Public Interest Immunity (PII) to protect disclosure of sensitive or highly sensitive material, prosecutors will not apply an all encompassing test relating to the classes of material. All material will be considered individually, and whether the disclosure of an individual document would be likely to give rise to a real risk of serious prejudice to an important public interest must be assessed for each document in turn. 12.106 Whilst some material is always likely to carry that real risk, not all will and COPFS must assess the risk to the public interest of the disclosure of that document in the individual case, whilst also having regard to the risk of incremental or cumulative damage to the public interest. 12.107 COPFS must be satisfied that the prejudice that is anticipated from disclosure of a document is a serious, not a trivial, risk. Again, as with 'real risk', this is an assessment that must be made on an individual basis, having regard to the risk of incremental or cumulative damage to the public interest. 12.108 It may be possible to separate non-sensitive from sensitive parts of documents and describe them on different schedules. For example if the fact of surveillance is obvious from the evidence, an authorisation under the Regulation of Investigatory Powers Acts might neither be nor contain anything sensitive. It may therefore be included on the non-sensitive schedule where COPFS intend to lead such evidence. 12.109 On the other hand, if the authorisation contains sensitive material (or detail concerning an ongoing investigation etc), it should be placed on the sensitive schedule. This is a particularly useful way of dealing with RIPSA and RIPA authorities. 12.110 Where COPFS decides: that sensitive material requires disclosure to the accused because it satisfies the disclosure test; and in consultation with the police, that it is not possible to disclose in a way that does not compromise the public interest in question; and that material should be withheld on public interest grounds the ruling of the court must be sought, the case abandoned or the prosecution adopt a different trial strategy. 12.111 Neutral relevant sensitive material or material damaging to the accused need not be disclosed and, unless the issue of disclosability is truly borderline, should not be brought

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to the attention of the court see R (on the application of Secretary of State for the Home Department) v H [2008] EWHC 1045 (Admin) and R v C [2007] EWCA Crim 2996. This places a heavy onus on the police and COPFS to be aware of all factors which might affect the legality of or admissibility of evidence from sensitive sources or procedures.

Consultation
12.112 As there is currently no statutory scheme of PII in Scotland, before seeking to disclose any sensitive `material evidence` arising from an intelligence source, COPFS will consult the police. This should take place at a senior level, and a senior officer (who may be independent of the investigation) should be involved. Others may also be consulted, including the investigator, SIO, RO, or RVO. Consultation may need to involve the Director of Intelligence of police forces or agencies. 12.113 Consultation will include a careful examination of the circumstances of the case and the nature of the sensitive material. COPFS may be able to disclose the material in a way that does not compromise the public interest in issue. Material may, for example: be redacted; summarised; or formally admitted. 12.114 For consultation to be effective, the investigator, SIO, RVO or RO should ensure that COPFS is provided with the information necessary to make a proper decision to address the relevant sensitive material.This should be in documentary form. On the basis of the information provided at the consultation, COPFS will decide the next course of action as described above.

Highly Sensitive and CHIS Material


12.115 All relevant sensitive material should be included on the sensitive schedule. Highly sensitive material should be also listed and described on a separate Highly Sensitive Schedule, which will be handled in accordance with the following guidance. 12.116 Highly sensitive material is that material which, if compromised, is likely to: Lead directly to the loss of life; Directly threaten national security; or Lead to the exposure of a CHIS.

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12.117 There may be material that might not fall within this definition, but which, due to the GPMS marking that the material attracts, cannot be revealed to a precognoser or legal manager because they do not hold the required security clearance. Correspondingly, such material must be included in the highly sensitive schedule and revealed to a member of COPFS with the required level of security clearance, i.e. Area Fiscal, Divisional Fiscal or District Fiscal. 12.118 The small numbers of such cases where this situation may arise are likely to involve investigations into serious and organised crime or into terrorist offences.This material is likely to be in the Confidential, Secret or Top Secret categories. 12.119 There may be material that, whilst its compromise would not be likely to lead directly to the loss of life or directly threaten national security, relates to a CHIS who, or whose family, may be injured, threatened or harassed if the material is compromised. The police should apply the same procedures to CHIS material as for highly sensitive material.This said, sanitised intelligence arising from CHIS reporting may appear on the sensitive schedule protectively marked RESTRICTED. 12.120 Some of the material which has been listed on the highly sensitive schedule, due to its sensitivity and handling restrictions, may require to remain under the control of the police. However, relevant extracts or a summary report of the matter in question may be provided to and retained by COPFS and handled and stored in accordance with GPMS marking requirements. 12.121 As noted above, highly sensitive material may be brought to the attention of COPFS on a highly sensitive schedule by individual officers without the details being known to the investigator, SIO, RO or RVO. This is the responsibility of the individual officer and individual police force. 12.122 Where such material has been identified, consultation between the police and COPFS should take place as soon as possible. Initial contact with COPFS should be with the Area Fiscal, Divisional Fiscal or District Fiscal who have the required level of security clearance. 12.123 Inspection should be at an appropriate location, having regard to the sensitivity of the material. COPFS should take care to ensure that file or disclosure record sheet endorsements relating to the consultation do not inadvertently identify the nature of the material. 12.124 It should be noted that there are special provisions for handling material gathered under Part 1 Chapter 1 of the Regulation of Investigatory Powers Act 2000 (Interception of Communications) and no reference to the interception application, warrant or the product of communications intercepts should be made in any schedule.

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12.125 It is established practice that a senior officer at Superintendent or above level, who is a signatory to the safeguards afforded to intercept material under Section 15 of RIPA (see section on Interception of Communications and RCD contained within the Guidance on Disclosure of Sensitive and Intelligence Material in Summary & Solemn Procedure), will brief senior members of COPFS on communications interception matters via secret letter. 12.126 Such letters will be provided at the inception of an interception operation and thereafter on each arrest of any individual either subject to or whose conduct is relevant to said interception operation.

Handling and Security Arrangements


12.127 During consultation on sensitive material marked as CONFIDENTIAL or above, any copies of the items discussed or notes taken by COPFS which could identify the material should be kept separate from the main prosecution file and in secure conditions. 12.128 Access to the material or notes should be restricted to those prosecuting the case or advising upon it. If the material is taken to court, it must not be left in an unattended court file. Where the advice of Crown Counsel is sought, appropriate storage and handling arrangements must be made to ensure the security of the material.

Automatic Number Plate Recognition (ANPR)


12.129 The use of Automatic Number Plate Recognition (ANPR) can help to detect, deter and disrupt criminality, including terrorism. It can be used locally and nationally, as well as across force and national borders. ANPR is a tactical option which can provide lines of enquiry, evidence and intelligence to further investigations. 12.130 National protocols have been developed and are in force outlining practices and procedures to be followed when dealing with ANPR activations either from an overt or covert perspective. When activations result in offenders being detected and cases being reported to COPFS for consideration of prosecution or where activations are deemed to be relevant to a case then these must be revealed by using the recognised methods outlined in this manual. (SPR, Subject report, schedules) 12.131 The location of some fixed ANPR sites across Scotland are sensitive and as such it would not be in the public interest to have location details disclosed. The means of protecting these locations is for details of the activations to be placed onto the Scottish Intelligence Database which is then used to sanitise the information with it being forwarded to the reporting or investigating officer. Thereafter if this intelligence is deemed to be relevant to a case, it should be revealed to COPFS by reportingl officers in accordance with all other sensitive information i.e. remarks section of the SPR, appropriately GPMS marked subject report (restricted) and via the sensitive schedule in solemn cases.

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12.132 Should the location of a fixed site become material to a case, COPFS may request such details and consultation should take place with ANPR intelligence officers and revelation made via the appropriate method. (Confidential subject report or highly sensitive schedule to the Divisional, District or Area Procurator Fiscal). 12.133 For further details on practices and procedures to be followed in relation to ANPR please refer to local force guidance.

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Chapter 13

Major Investigations
Introduction
13.1 Major investigations are not confined to criminal investigations and, as such, each area of business within the police service requires to develop and maintain policies and strategies to ensure that, if required, they can respond to any given situation in a professional and appropriate manner and, if necessary, produce reports for submission to the relevant authorities. 13.2 Major investigations can include crimes of violence, all homicides, serious road crashes, public order incidents and mass death incidents, all of which require adherence to the principles of disclosure. However, most major investigations can be classified as such where an incident room has been established and an SIO appointed to oversee the investigation.

Briefing/Debriefing
13.3 The principles of revelation and disclosure encompass all aspects of police criminal investigations, including the briefing and debriefing processes adopted by officers involved in the enquiry. 13.4 The briefing and debriefing process is a fundamental strand in the creation and maintenance of a successful police investigation from the initial briefing process, establishing main lines of communication between the Senior Investigating Officer (SIO) and the wider investigation team, through to regular debriefing sessions, providing updates of work completed and allowing new lines of enquiry, tactics and strategies to be developed to progress the investigation. 13.5 Information discussed at briefings and debriefs will, on the majority of occasions, have been derived from source documentation obtained or generated during the course of the investigation. Information contained within statements, forensic reports, surveillance logs, sanitised intelligence reports etc routinely form part of the briefing and debrief process. 13.6 Importantly, it should be borne in mind that if any information is raised at briefings or debriefs which has the potential to materially weaken the prosecution case, materially strengthen the defence case or exculpate the accused and if this information is not contained within a source document elsewhere within the enquiry, and then it must be recorded and dealt with appropriately.

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HOLMES Investigations
13.7 More recently, in major crime enquiries where HOLMES has been utilised to administer the investigation, formal briefings are recorded in note format which is thereafter recorded onto the system. Such a course of action maintains the transparency and integrity of the investigation and is able to demonstrate and support future courses of action. 13.8 Forensic debriefs and Major Incident Advisory Group (MIAG) briefings are also held, and it is good practice to have these recorded in major crime investigations to progress lines of enquiry.As with all other decisions and directions given during the investigation, the notes derived from such proceedings will require to be reviewed for relevancy to establish whether they should be revealed to COPFS.

Non-HOLMES Investigations
13.9 As mentioned above, during HOLMES major crime investigations, formal recording procedures for briefings and debriefings have been established and should be maintained. Correspondingly, in non-HOLMES enquiries, the recording of formal briefings should also take place where an incident room has been established. 13.10 In investigations where an incident room has not been established, it is entirely at the discretion of the SIO/RO whether briefings or debriefs should be formally recorded or not. However, it should be seen as good practice for this process to be adopted 13.11 It is vital to ensure that any information raised which may have the potential to weaken the case, strengthen the defence or otherwise exculpate the accused (and which is not contained within a source document) must be recorded, retained and revealed to COPFS.

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Sensitive Information
13.12 Where an intelligence briefing or debrief is to take place, this should be restricted to only relevant staff within a controlled environment and outwith the operational arena. Any recordings made should be afforded the appropriate GPMS markings. (See Appendix P) 13.13 Where sensitive information is introduced to an operational briefing or debrief, SIOs must ensure that this aspect of the briefing is appropriately handled and recorded as above, ensuring that the identity of sources of such information being exposed is avoided. 13.14 All officers must be made aware of the appropriate methods of introducing sensitive material to the briefing/debriefing process and encouraged, where possible, to submit such information timeously to the appropriate database (SID) prior to summarised discussion at, or prior to, any briefing or debrief.

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13.15 Where a briefing or debrief has been recorded and it contains sensitive information such as intelligence, the appropriate Government Protective Marking (GPMS) must be applied to the document in order that it is appropriately assessed and dealt with in line with the handling and revelation of sensitive material.

Specialist Roles and Policy File Records


13.16 One of the most important aspects of managing any crime investigation is the accurate recording of policy decisions, no matter whether the prosecution is to progress under summary or solemn proceedings. As previously highlighted in Chapter 1, failure by the police to accurately record and reveal relevant material to COPFS may result in a miscarriage of justice or a breach of Article 6 of the European Convention of Human Rights. 13.17 The revelation of policy logs to the Crown is a relatively new concept. However, under the rules of revelation and disclosure all materials, including policy documents, require to be completed accurately, reviewed for relevancy and, if assessed to be relevant, revealed to COPFS.

General
13.18 Key management personnel and those with specific roles and responsibilities within a major investigation have at their disposal ACPOS-approved policy files and logs to record decisions and other key information made during the course of an investigation. These can often act as a record of their involvement and participation in the decision-making process. These documents will be subject to review and assessment and, if deemed relevant, must be revealed to COPFS. 13.19 This will impact in the main on Senior Investigating Officers (SIOs), Crime Scene Managers (CSMs), Family Liaison Officers (FLOs) and Interview Advisors (IAs), although no formal policy file for IAs has been established at this time. 13.20 At the conclusion of an investigation, the policy files become case related documents and require to be retained and stored in accordance with the ACPOS Policy and Guidance on the Disposal of Crime Records and Productions. (Appendix C)

SIO Policy Files


13.21 One of the most important aspects of an SIOs role in the management of any crime investigation is the recording of policy decisions. For serious crime investigations, mainly where an incident room has been established, SIOs should use the approved ACPOS Policy Files to record critical policy decisions.

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13.22 Although it is best practice to utilise these files during any investigation, particularly where it is envisaged that the management of information may become an issue at a later stage, individual forces may utilise other documents or systems to record such decisions. 13.23 Whatever method is used to record policy, it will form the definitive record upon which SIOs will rely when subsequently asked to account for decisions at: Internal/External Reviews Trials Fatal Accident Inquiries Criminal Case Reviews 13.24 By using policy files to record strategic policy decisions, the likelihood of any revelation issues impacting upon the content at a later stage will be minimised. 13.25 ACPOS-approved Policy Files are sequentially numbered bound books with each entry signed and dated by the SIO or anyone directed or requested to make an entry on behalf of the SIO. By adopting a disciplined approach to planning the investigation, the SIO can accurately record strategic and operational objectives. Care should also be taken to avoid recording personal opinion and hypothesis with decisions being made on factual information and sound logical reasoning. 13.26 Similar to Scene Management, Family Liaison and Interview Strategies, the SIO policy file should also be used to record revelation policy and what resource(s) will be deployed to carry out this role.

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13.27 Sensitive information, such as tactics and techniques, should not be recorded within this file, but SIOs may have elected to record sensitive policies and decisions within a sensitive policy file. This would also be subject to review, assessment and, if relevant, revelation. 13.28 By adopting these guidelines, the information contained within policy files will limit any concerns in the future that the SIO may have about a possible disclosure of the contents to the defence by COPFS. SIO policy files, after being reviewed by the RVO, and if deemed relevant, should be listed and described on the sensitive schedule.

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Family Liaison Logs


13.29 Family liaison officers (FLOs) are often deployed in major crime investigations and there is comprehensive guidance on how to complete FLO policy logs. However, due to its nature, a considerable amount of personal sensitive information is most likely to be recorded on it such as telephone numbers; family details etc. If this source document has been deemed relevant during the reviewing and assessment stage, it should be listed and described on the sensitive schedule. The reason why the information is thought to be sensitive also requires to be outlined. (see Chapter 11 Schedules of Relevant Material)

Crime Scene Manager Logs


13.30 Again, there is significant guidance on how to complete Crime Scene Manager's logs which will, when completed, provide an accurate account of the deployment of the CSM and their actions linked to policy directions given by the SIO. It will also support the continuity of evidence seized from a crime scene and any subsequent examination of the articles and the rationale behind this process. These, if deemed relevant, should be listed and described on the non sensitive schedule.

Interview Advisor
13.31 The role of Interview Advisors is well established within the Scottish police service and the structure of their role is defined in national training delivered at the Scottish Police College. It is recognised at this time that formal documentation, similar to that used by FLOs and CSMs, has not been developed. Therefore, to ensure that Interview Advisors fulfil their revelation obligations, any interview plan created and used must be retained and lodged as a case related document. Again, this will be subject of review and assessment for relevancy and revealed via the non sensitive schedule.

General
13.32 All officers should be aware, particularly Reviewing Officers (RVOs) deployed in major investigations, that, although there are specifically prepared ACPOS booklets and logs which are completed during major crime investigations, it may be that information is recorded elsewhere prior to the deployment of the expert disciplines highlighted. Relevant information may have been recorded in the Command and Control system or an officers notebook. This information should be retained and reviewed and dealt with in the appropriate manner for revelation. 13.33 Officers deployed in a role that requires them to record policy decisions or their actions within logs or interview plans must ensure that these documents are accurately completed, retained as case related documents and made available for review, assessment by the RVO.

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House to House Questionnaires


13.34 The need to conduct House to House enquiries, as a reasonable line of enquiry, often forms an intrinsic part of any criminal investigation both in summary and solemn cases and will routinely generate a significant amount of information, particularly in major crime investigations. 13.35 The management and dissemination of this information is initially the responsibility of the police and, while the existence of such information will always require to be revealed to COPFS, it will not necessarily require to be delivered to them. That will depend on the facts and circumstances of each individual case.

Duty to Disclose
13.36 It is the duty of the Crown to disclose all statements of all witnesses that the Crown or the defence either lists on the indictment or intends to call at trial and therefore it is essential that the police provide COPFS with an accurate account of the information generated during the course of an investigation. It should be noted that house to house questionnaires are legally defined as a statement.Accordingly, the Crown must disclose any questionnaires taken from anyone who subsequently becomes a witness at the trial. 13.37 There are provisions within the disclosure framework that permit certain material to be retained by the police to help reduce the administrative burden, one such example being house to house questionnaires. 13.38 While all questionnaires generated during the course of a criminal investigation will always be retained, very few may actually contain relevant information that would assist the Crown case or meet the disclosure test, i.e. contain information that could materially weaken the Crown case or materially strengthen the defence case. However, as questionnaires are considered to be statements, their existence will always require to be revealed. 13.39 To streamline the administrative process, it has been agreed that the Reviewing Officer should liaise with the relevant Solemn Legal Manager within COPFS to determine what, if any, questionnaires require to actually be submitted to COPFS. In many circumstances, it may be necessary for only material questionnaires to be provided to COPFS. The existence of all questionnaires generated during the enquiry would still need to be revealed to COPFS. This therefore limits, for example, the need to provide 2,000 questionnaires generated during a HOUSE TO HOUSE enquiry where only three questionnaires leading to the generation of a formal statement containing information of evidential value were generated.This does not mean, however, that the remainder of the information is to be disregarded. Rather, it must be managed and stored for future reference as per the ACPOS Policy and Guidance on the Disposal of Crime Records and Productions (Appendix C).

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RVO Responsibilities
13.40 It is the responsibility of the Reviewing Officer in the case of a Major Investigation, to ensure that: I) The existence of any source documents, such as questionnaires or personal descriptive forms (PDFs), is carefully recorded; II) There is proper liaison with the relevant Solemn Legal Manager within COPFS to agree what questionnaires require to be submitted to the PF; III) The agreed questionnaires are provided to the PF; and IV) The reconciliation inventory is completed correctly, as detailed below. 13.41 It is also the responsibility of the RVO to ensure that any ad hoc questionnaires completed by officers engaged in the initial stage of an investigation are retrieved and accurately detailed in any correspondence with COPFS.

Reconciliation Inventories
13.42 For all investigations which, commenced prior to the 5 October 2010, likely to result in a High Court trial the police have completed Reconciliation Inventories in an agreed format,detailing the statements,productions and witness CHRs which have been obtained during the investigation.This process was introduced as a result of the decision in HMA v G.B. which stated that the police must provide the Crown with a detailed inventory of all information contained within an investigation, regardless of materiality, to ensure at precognition that all relevant material is available for consideration for disclosure. Although inventories are still in existence, schedules of relevant material, introduced for investigations and subsequent cases reported on or after 5 October 2009, are now the recognised system of detailing such information.

Statements - taken after questionnaire completion


13.43 As previously stated, a questionnaire taken during a house to house exercise is legally classed as a statement and, as such, the Crown is always obliged to disclose it where it relates to a witness that the Crown lists on the indictment or intends to call at trial. Therefore where, during the course of an investigation, a house to house questionnaire is completed which then results in a further statement being taken from the witness, COPFS must always be provided with a copy of the questionnaire and the further witness statement or statements.

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Major Crime Reviews


13.44 The guidelines for the reviewing of major crime investigations have been developed by ACPO/ACPOS and these outline the principles and time scales for its conduct. The guidelines, which are reproduced within the ACPO/ACPOS Murder Investigation Manual, are flexible and can be adapted as each force or agency sees fit. They are most commonly commissioned in undetected major crime investigations, but have previously been undertaken in detected cases as a result of a particular issue or issues coming to light.

Principles of a Review
13.45 Reviews should be a dynamic process. They should not only be used to assist the SIO in the investigation of a crime, particularly identifying lines of enquiry which need to be pursued, but also to increase the effectiveness and intensity of major crime investigations. At the end of each process, lessons learned and identified good practice should be circulated within each force. Where appropriate, relevant force policies and working practices should be revised in the light of review findings.

Review Findings
13.46 The report into a major crime review will be delivered to the commissioning officer, but should be in the first instance be provided to the SIO who after examination can, if he or she wishes, make comment, which should accompany the report and be delivered to the commissioning officer. 13.47 The Review Report will contain an in-depth examination of the investigative process which has been undertaken in relation to a specific incident.There may also be reference to certain sensitive intelligence issues which would not normally be available for general consumption. Where there are concerns in relation to disclosure, the relevant areas should be highlighted. 13.48 If, as a result of the findings of a review, the SIO adopts a new line of enquiry, he or she must accurately record his/her reasons and actions within the policy file and clearly mark that the new approach was as a result of the review process.

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Revelation of Review Documents


13.49 In the event of a person or persons being charged in connection with a major crime investigation where a review has been conducted, the report must be made available to the Reviewing Officer (RVO) who must consider the document for relevancy and, if appropriate, reveal it to COPFS.

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13.50 It has to be recognised that such a report may well contain information which could weaken the prosecution case, strengthen the defence case or otherwise have the potential to exculpate the accused, and clearly such information must be highlighted as soon as reasonably practicable to COPFS.

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Chapter 14

Professional Standards and Disclosure


Introduction
14.1 This chapter should be read in conjunction with Chapters 10 (Reporting to COPFS Witness Criminal History Records CHRs) and 11 (Schedules of Relevant Material). 14.2 Under existing common law, the Crown has an obligation to disclose (a) all material that forms part of the prosecution case and (b) any other material obtained in the course of the investigation which either materially weakens the prosecution case or materially strengthens the defence case. This includes information which could cast doubt on the integrity, reliability or credibility of any witnesses called to give evidence during criminal proceedings. Any material previous convictions or outstanding charges (PCOCs) of police officers and staff fall within this category along with certain police officer misconduct findings. 14.3 This chapter will explain the practice and procedures to be adopted when dealing with police officer and police staff criminal history records and police officer misconduct.

Definition of Police Officers and Staff


14.4 As set out in the Joint ACPOS/COPFS Protocol on Disclosure of Evidence in Criminal Proceedings, all police officers, including police officers from different Scottish police forces and agencies are classified as police witnesses.This will also include officers who provide evidence of opinion, such as those located within the STOP Unit, Collision Investigation Units, Drug Squads etc. (For English / Welsh Police see Chapter 9). 14.5 All other police staff who are witnesses in the capacity of their employment are classified as police staff.This will include for example,,custody care staff, special constables, cadets and police authority traffic wardens. It does not as yet include SPSA staff

Criminal History Records (CHRs)


14.6 As a result of recent case law (HMA v Holland), and in the terms of the ACPOS/COPFS Protocol on Disclosure of Evidential Material in Criminal Prosecutions, the police have a duty to reveal to COPFS the existence of witness Criminal History Records by supplying each witnesss unique CHR number (S number).This includes any S numbers of police officers or police staff. This allows COPFS to fulfil its disclosure obligations.

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14.7 Where an S number has been supplied, COPFS can directly access the Criminal History System (CHS) and will thereafter consider each record in order to disclose to the defence relevant and material parts of each witnesss CHR, except where the case is proceeding on indictment, was submitted hard-copy or is otherwise not stored in COPFS Database. Again the decision as to what to disclose lies entirely with COPFS. 14.8 It is not anticipated that this situation will arise very often. The Crown, however, is still obliged to ascertain whether or not a police witness has a CHR and to disclose relevant and material parts of the record (which might include pending cases, previous convictions, Childrens Hearing appearances and fixed penalties issued by the prosecutor, police or other reporting agency in accordance with the materiality test). 14.9 Accordingly, integrated procedures have been established by police forces, SPSA and COPFS to ensure that the Crown can meet its obligations, whilst also ensuring that appropriate confidentiality is maintained and that the information is obtained efficiently. 14.10 A Memorandum of Understanding between Forces, SCDEA, SPSA an COPFS will be completed in due course detailing data protection and governance areas.

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The Police Officer/Staff CHS Database


14.11 Every police officer or police staff member from a Scottish Force or SCDEA has a unique reference number (URN). Whenever a police officer/staff is listed in an SPR as a police witness, his/her URN is also included in the report. This is mandatory and no police officer/staff can be listed as a police witness unless his/her URN is inserted. (see below for off duty police officers/staff) 14.12 COPFS maintains a database detailing all serving police officers and staff with S numbers (CHRs). In order to ensure confidentiality and satisfy data protection principles, police officers/staff are referred to in the database by their URNs rather than their names. Associated with each URN in the table is the corresponding CHR number for that police officer/staff. 14.13 This database is checked automatically against the list of witnesses contained within an SPR when it is transmitted to COPFS.Where an officer or a member of staff is listed in the SPR as a witness, and is also listed in the COPFS database, his/her S (CHR) number will be populated automatically in the COPFS case-marking system.This enables COPFS staff to obtain the relevant criminal history record directly from CHS. 14.14 The COPFS database can only be accessed by selected staff in COPFS Information Systems Division (ISD).

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Procedures for Summary Cases


14.15 Where a case proceeds on summary complaint, there will be no requirement for a schedule. COPFS will review any police witness CHRs and decide which, if any, parts of the Criminal History Record meet the disclosure test.

Procedures for Solemn Cases (Schedules)


14.16 When the police have reported a case and the Procurator Fiscal has decided to proceed by way of Petition, he/she, on establishing that a police witness (police officer or member of police staff) has a criminal history record, will forward a letter to the relevant force's Professional Standards Department, requesting the scheduling of the CHR. Professional Standards Departments will prepare and complete a sensitive schedule detailing the officer/staff CHR.The schedule will then be returned directly to the requesting Procurator Fiscal. For Example; URN Material Type Criminal H i s t o r y Record Description and Relevance Criminal History Record of Police Constable George Anonymous No 123456. S Number 1234567/89 refers Where lodged Scottish Criminal H i s t o r y System RFS Note

1.

18

14.17 Further details on schedule completion are contained in Chapter 11 of this manual.

Off-Duty Police Officers/Staff Witnesses


14.18 As set out in the ACPOS/COPFS Joint Protocol on Disclosure, a police officer or other member of police staff, who is a victim/witness to a crime, not in their capacity as police officers or police staff, are categorised as a civilian witness. Accordingly, in such circumstances, the Reporting Officer should forward the officer's/staff member's details to his or her respective Professional Standards Departments who will facilitate the necessary checks and forward the results of this directly to COPFS. In summary cases, this will be in the form of an appropriately marked (restricted) subject report, or in solemn cases via a sensitive schedule.

Misconduct Information
14.19 Misconduct by police officers is regulated byThe Police (Conduct) (Scotland) Regulations 1996, British Transport Police (Conduct) Regulations 2008 and the Ministry of Defence Police (Conduct) Regulations 2009 which provide for a number of different options to reach a conclusion.

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The Regulations state that an Assistant Chief Constable (in practice the Deputy Chief Constable (DCC) prepares and maintains procedures to secure that where any report, allegation or complaint is received from which it may reasonably be inferred that an act or omission, or an alleged act or omission, of a constable of the police force concerned amounts, or may amount, to misconduct it is properly considered).

Conduct Constituting Misconduct


14.20 Under Regulation 4, Schedule 1 of the Police (Conduct) (Scotland) Regulations 1996 there are a number of types of misconduct listed under the main heading of Conduct likely to bring discredit on the police force or service. All categories of misconduct where admitted or proved and dealt with at a Misconduct Hearing, should be revealed to the Crown for the purposes of potential disclosure.

Outcomes
14.21 There are six separate options for Forces in dealing with allegations of Misconduct:

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1) No action 2) Action out with the Conduct Regulations 3) Warning in terms of Regulation 5(2) 4) Warning in terms of Regulation 5(3) 5) Warning in terms of Regulation 6(6) 6) Misconduct Hearing 14.22 Options 1 - 5 are used for minor misconduct and would normally have no bearing on the integrity, credibility or reliability of the officer involved. Therefore, there is no requirement on the police to proactively reveal to COPFS the details of misconduct which does not proceed to a Misconduct Hearing. 14.23 However, if allegations of misconduct could be detrimental to the integrity, reliability or credibility of the officer involved, irrespective of the method of disposal, then liaison should take place between the Professional Standards Department and the appropriate Legal Manager or precognoscer within the PF's Office. 14.24 Notwithstanding the above, if a defence request is received by COPFS for the disclosure of police officers misconduct, the appropriate Legal Manager or precognoscer will consider such a request in terms of their disclosure obligations and may require that any detail held by the police in respect of misconduct warnings is revealed to them. 14.25 This will be facilitated after discussion between the appropriate Legal Manager or precognoscer and the Professional Standards Department. If, after discussion, there is relevant material within the misconduct record, this should be revealed to COPFS by an appropriately marked subject report in summary cases or a sensitive schedule in solemn proceedings. Usually, such material will carry a GPMS marking of Restricted.

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14.26 If, after the subject report or schedule has been submitted, COPFS requires any further information in respect of any item listed, the appropriate Legal Manager or precognoscer will contact the Professional Standards Department for this information. COPFS will then consider whether any of the information is material and, if so, it will then be disclosed to the defence. 14.27 Misconduct by British Transport Police officers is regulated by British Transport Police (Conduct) Regulations 2008, which provide for a number of different options to reach a conclusion. These Regulations apply where an allegation comes to the attention of an appropriate authority which indicates that the conduct of a police officer may amount to misconduct or gross misconduct. appropriate authority means a) where the officer concerned is a senior officer of the police force, the police authority; b) in any other case, the chief constable;

14.29 There are four options for BTP when dealing with allegations of Misconduct:1) No Action 2) Management Advice 3) Written Warning 4) Misconduct Proceedings Options 1 3 are used for minor misconduct and would normally have no bearing on the integrity, credibility or reliability of the officer involved, therefore there is no requirement on the police to proactively reveal to COPFS the details of misconduct which does not proceed to Misconduct Proceedings. All references to Misconduct Hearings regulated by The Police (Conduct) (Scotland) Regulations 1996, shall be considered a reference to Misconduct Proceedings regulated by The British Transport Police (Conduct) Regulations 2008. 14.30 Misconduct by Ministry of Defence Police officers is regulated by Ministry of Defence Police (Conduct) Regulations 2009 and apply equally to all MDP officers in England, Wales, Scotland and Northern Ireland.

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14.28 Under Regulation 3, Schedule 1 of the afore-mentioned legislation there are a number of types of misconduct listed under the main heading of Standards of Professional Behaviour. All categories of misconduct where admitted or proved and dealt with at Misconduct Proceedings, should be revealed to the Crown for the purposes of potential disclosure.

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14.31 appropriate authority means where the officer concerned is a senior officer, the police commitee; in any other case, the chief constable 14.32 There are 6 options for MoD Police when dealing with allegations of misconduct 1) 1 No Action 2) 2 Management Advice 3) 3 Written Warning 4) 4 Final Written Warning 5) 5 Dismissal With Notice 6) 6 Dismissal Without Notice 14.33 There are 2 types of Misconduct proceedings A Misconduct Meeting (where the maximum outcome would be 4 (Final Written Warning). A Misconduct Hearing (where the maximum outcome would be 6 (Dismissal Without Notice). At a Misconduct Hearing, in addition to the outcomes available at 1,2,3, and 4 above, the person conducting the hearing will also have available the options 5 and 6.

Chapter 14 Professional Standards and Disclosure

Misconduct Hearing
14.34 This is the only option which can see an allegation of misconduct being tested and resulting in a finding of misconduct. Following receipt of the Investigating Officers report, the DCC may require the officer to appear before the Chair of a Misconduct Hearing. 14.35 Police forces must proactively reveal to COPFS the findings of all Misconduct Hearings where misconduct has been admitted or proved. COPFS will then consider potential disclosure to the defence if indeed the information satisfies the materiality test applied to it by COPFS. 14.36 Accordingly, procedures have been put in place between the police and COPFS to ensure that it can meet its obligations, while also ensuring that the information is obtained efficiently. 14.37 Similar to police officer/staff Criminal History Records, COPFS will maintain a database containing details of all Misconduct Hearing findings where the misconduct has been admitted or proved. When the police have reported a case to the Procurator Fiscal, a cross-check on the police witnesses on this database will occur.

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Any positive matches will instigate transmission of a letter to the relevant force's Professional Standards Department, requesting the revelation of the relevant misconduct. 14.38 For summary cases, revelation will be achieved by the completion and submission of an appropriately marked subject report.In solemn cases,Professional Standards Departments will prepare and complete a sensitive schedule, detailing the officers relevant misconduct finding.The schedule will then be returned directly to the requesting Legal Manager or precognoscer. Usually such material will carry a GPMS marking of Restricted. 14.39 If, after the subject report or schedule has been submitted, COPFS requires any further information in respect of any item listed, the appropriate Legal Manager or precognoscer will contact the Professional Standards Department for this information. COPFS will then consider whether any of the information is material and, if so, it will then be disclosed to the defence.

Retention

14.31 However, if any Force record is held in relation to the outcome of a Misconduct Hearing, then this must be revealed to COPFS, who will then take a disclosure decision based on materiality and other relevant factors. 14.34 More detailed guidance for Professional Standards Departments on dealing with the revelation of police officer/police staff CHRs and police misconduct will be contained and held within force departments.

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14.40 The conduct regulations are silent on how long this finding should be retained. However, the Police (Scotland) Regulations 2004 state that the finding must be expunged from the officers record after three years clear of default. In effect, this means the finding is live for three years.

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Chapter 15

Disclosure by Access of Material or Information Held by the Police


Introduction
15.1 On occasion, there will be a requirement for the police to facilitate access to material or information held by them which has been obtained in the course of an investigation. Such access can either be to a defence agent (or even defence counsel) or to an unrepresented accused. 15.2 Such access must only be permitted on the direct instruction of the relevant Procurator Fiscal. 15.3 If the defence make a direct approach to the police to view material or information, then they must be directed to the Procurator Fiscal (PF), no matter how innocuous the request might appear to be. As previously stated in this manual, the role of the police is to provide all relevant material to the Crown, who will then determine what information will be disclosed to the defence. If the police were to allow the defence access to material or information without a direction from the Crown to that effect, then it would undermine this process.

Disclosure to the Defence Agent or Counsel


15.4 Where COPFS has instructed the facilitation of access of material or information to the defence agent/counsel, this will usually be in the form of allowing access to productions, e.g. DVDs, computer hardware etc.

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15.5 In such instances, COPFS will usually instruct access in one of two ways: 1) By providing an instruction direct to the police this should usually be in writing. However, where the access is being urgently instructed, the relevant PF may provide instruction by telephone. In such instances, a careful record of the telephone conversation should be taken, detailing the name of the COPFS staff involved and the exact details of the material or information to by accessed by the defence; or 2) By a written communication to the defence advising them that they can access particular material or information at the police office. The defence must produce this written instruction when seeking to view the material or information. Again, the letter must specify exactly what material or information the defence are being allowed to access.Where there is doubt as to the veracity of the letter or the material or information to be accessed, the relevant PFs office should be contacted for clarification.

Procedures to be Followed When Allowing Agents Access


15.6 Guidance on the procedures to be followed during the facilitation of the access is detailed below. 1) Arrange Access Upon instructions from COPFS to permit access to police retained material or information, the Reporting Officer (RO) will arrange, as soon as reasonably practicable, a suitable time and venue for access to the material or information. These arrangements must be strictly adhered to and recorded in an auditable format by the RO, in an official police notebook, including when the timing of the intimation to permit access to the viewer was delivered and in what format: verbally in person, telephone etc. 2) Arrange Venue The venue for any such access to material or information will in all cases be within a police office unless the material or information requires to be accessed by necessity at another location, e.g. if the material or information is held at the forensic laboratory. 3) Arrange Supervision Any access by a defence agent (or counsel) must be supervised by either the Reporting Officer or another officer. Such supervision, however, need not be corroborated unless the material or information being accessed is particularly sensitive. 4) Provide update to the PF's Office After the defence agent (or counsel) has been given access to the material or information, the supervising officer should prepare a subject report detailing:

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When the timing of the intimation to permit access to the viewer was delivered and in what format: verbally in person, telephone etc. Date and location the material or information was accessed; Exact details of what was accessed; and The name of the agent or counsel accessing the material or information and the supervising officer(s). 15.7 This subject report should be completed and submitted to the PF's Office prior to the officers termination of duty that day. A pro-forma style subject report is attached at Appendix M.

Disclosure to the Unrepresented Accused


15.8 Where an accused is unrepresented, COPFS must still disclose all information that (a) forms the prosecution case or (b) materially weakens the Crown case or materially strengthens the defence case. 15.9 However, COPFS must consider whether additional safeguards are required to ensure that the information is adequately protected. Accordingly, by necessity, COPFS will disclose a greater degree of information to unrepresented accused by access than it would if the accused were represented. 15.10 In addition, except in minor and non-sensitive cases (e.g. speeding offences), COPFS will seek an order from the relevant court, setting out the extent and nature of the disclosure to the unrepresented accused.The effect of this order is that, if the accused then misuses any of the information disclosed to him, then he may be found in contempt of court and punished accordingly. 15.11 Where an accused is to be allowed access to material or information, this will usually be carried out by the police, either at the police station or in prison (where the accused is in custody). In some cases, COPFS may arrange for access to be made at the local PF Office, but this will not be as common. 15.12 Full guidance on the procedures to be followed by COPFS when disclosing information to an unrepresented accused is contained in Chapter 23 of the COPFS Disclosure Manual.

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Prior to Arranging Access to an Unrepresented Accused


15.13 When instructing that access be arranged, COPFS will provide the reporting officer with a letter setting out: 1) What material or information is to be accessed; 2) The time scales (if any) specified by the court for arranging access; 3) Any restrictions imposed by the court in relation to the access. 15.14 A copy of the court order should also be provided. 15.15 Under no circumstances will any copies of the material or information be provided by the police to the accused without the express permission of COPFS. The accused is prohibited from taking of any photographs or videos, although the taking of notes will normally be permitted unless expressly prohibited by COPFS. 15.16 Where the accused is to be provided access to redacted copies of information, e.g. redacted statements, COPFS will specify this in the letter and will provide copies of the redacted information. 15.17 COPFS will also provide a blank acknowledgement receipt to be signed by both the accused and the supervising officer.

Procedures to be Followed When Allowing an Unrepresented Accused Access


1) Notification of Access Request Upon written instructions from COPFS to permit access to material or information, the RO will arrange, as soon as reasonably practicable, a suitable time and venue for access to the information. These arrangements must be strictly adhered to and recorded in an auditable format by the RO, in an official police notebook, including when the timing of the intimation to permit access to the accused was delivered and in what format: verbally in person, telephone etc. Note:The court order may specify a particular time scale within which the access should be arranged, e.g. within 48 hours. If so, this will be specified in the written instruction from COPFS.

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155

2) Arrange Venue The venue for any such access to material or information by the accused will be specified in the court order and will usually be either the police office or the prison, if the accused is in custody, 3) Confirm Accuseds Identity Prior to the access viewing, the viewer will have been issued with a written direction from COPFS, detailing his or her access rights, which must be presented to the attending officers at the time of his/her access. The attending officers must also verify the identity of the viewer, again to ensure the integrity of the process. 4) Confirm what the accused is entitled to access It is important that the attending officers thoroughly examine the content of the COPFS directions issued to the viewer to ensure that it matches the police copy. Any discrepancies should be immediately identified to the issuing representative from COPFS and the access denied until further directions can be issued. 5) Corroboration All access to material or information by an unrepresented accused will be conducted by the RO, or his/ her representative and one other officer, who will ensure that the contents of the written authorisation of COPFS are strictly adhered to. Any deviation from this direction will require immediate notification to COPFS, backed up by a written submission of the attending officers. 6) Signing Receipt After the accused has viewed the material or information, the acknowledgement receipt provided by the PF Office must be signed by the accused and the supervising officer(s), 7) Reporting of the Process Once the access visit has concluded, the supervising officer should prepare a subject report detailing: When the timing of the intimation to permit access to the viewer was delivered and in what format: verbally in person, telephone etc; Date and location the material or information was accessed; Exact details of what was accessed; and Details of the accused accessing the material or information and the supervising officer(s). 15.18 This subject report should be completed and submitted to the PF's Office prior to the officers termination of duty that day. A pro-forma style subject report is attached at Appendix N.

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Chapter 15 Disclosure by Access of Material or Information Held by the Police

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appendices

A: Glossary B: References C: ACPOS Recommended Records Retention Periods & Policy Guidance D: Schedules of Relevant Material Non Sensitive E: Schedules of Relevant Material Sensitive F: Schedules of Relevant Material Highly Sensitive G: Reviewing Process H: Generic Notes I: Reason for Sensitivity J: Schedule Undertaking Initial Report K: Schedule Undertaking Additional Information L: Schedule Undertaking No Additional Information M: Defence Access to Information Held by the police N: Unrepresented Accused Access to Information Held by the Police O: National Standard Statement P: Government Protective Marking Scheme - GPMS Q: 5x5x5 Intelligence Grading System R:Version Control

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159

Appendix A

Glossary
ACPOS Association of Chief Police Officers in Scotland ACPO Association of Chief Police Officers CC Chief Constable CCTV Closed Circuit Television CD Communications Data CFE Committal for Further Examination CHIS Covert Human Intelligence Source CHR Criminal History Record CHS Criminal History System COPFS Crown Office and Procurator Fiscal Service CSP Consumer Service Provider CSM Crime Scene Managers DCC Deputy Chief Constable HOLMES Home Office Linked Major Enquiry System FLO Family Liaison Officer

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Appendix A Glossary

160

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ID Intermediate Diet IA Interview Advisor LIO Local Intelligence Officer MO Modus Operandi MIR Major Incident Room MIAG Major Incident Advisory Group MIRSAP Major Incident Room Standard Administrative Procedures NSS National Standard Statement NSWG National Source Working Group OIC Officer in Charge PD Pleading Diet PF Procurator Fiscal PDA Personal Digital Assistant PDFs Personal Descriptive Forms

Appendix A Glossary

PNC Police National Computer PNG Plea Not Guilty PO Precognition Officer PCOCs Previous Convictions and Outstanding Charges RIPA Regulation of Investigatory Powers Act 2000
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RIPSA Regulation of Investigatory Powers (Scotland) Act 2000 RO Reporting Officer RVO Reviewing Officer SCDEA Scottish Crime and Drug Enforcement Agency SID Scottish Intelligence Database SEU Scene examination Unit SIO Senior Investigation Officer SPR Standard Prosecution Report SPSA Scottish Police Services Agency URN Unique Reference Number ViSOR Violent and Sex Offender Register

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Appendix A Glossary

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Appendix B

References
Review of the law and practice of Disclosure in Scotland 2007 Lord Coulsfield http://www.scotland.gov.uk/Publications/2007/09/11092728/0 Crown Office & Procurator Fiscals Service Disclosure Manual V 6 http://www.copfs.gov.uk/Resource/Doc/13547/0000576.pdf ACPOS Policy on Disposal of Crime Records and Productions ACPOS/ COPFS on police reports, statements and the presentation of Evidence in Court. ACPOS manual for the Management of Police Information (MOPI) ACPO/ACPOS Murder Investigation Manual ACPOS Review Startegy ACPOS/COPFS Joint Protocol on Disclosure of Evidential Material in Criminal Prosecutions - Part Two - Productions and the National Forensic Science Protocol ACPOS Manual of Standards for Surveillance RIPA / RIPSA Police Scotland Act 1967 Police Act 1997 Part III Criminal Procedure (Scotland) Act 1995 European Convention of Human Rights (ECHR) Police (Scotland) Regulations 2004 Data Protection Act 1998 Johnston & Allison V HMA [2006] HCJAC 30) R.v. Johnson [1998] 1 WLR 1377 EU Council Framework Decision 2006/960/JHASwedish Initiative http://www.homeoffice.gov.uk/about-us/publications/home-office-circulars/circulars2008/030-2008/

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Appendix B References

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165

Appendix C

Crime Extract Reference No Crime 1.0 Function Description The process of Recording and Investigating the incidence of Crimes & Offences made known to the police Serious Crime Enquiry (unresolved) Serious Crime Enquiry (resolved) Standard Crime Enquiry (unresolved & resolved) Retention Action Retain until case is detected From date made known to Police, Current Year + 12. Where accused is detected more than 12 months after date made known, retention period to be calculated from date case is reported to Crown. (Case assessment may initiate further retention) From date made known to Police, Current Year + 6. (Case assessment may initiate further retention) Examples of Records Police Officers Notebook Police and Civilian Statements Crime Report Production Register Voluntary Attendance Forms Arrest / Detention Forms Interview Tapes Q & A Interviews Record of Statement Voluntary Statement made by Accused Prisoner Processing Record Police Casualty Surgeon Examination Report Police Reports to Fiscal Scenes of Crime Examination Identity Parade Forms Surveillance Authorisations / Logs Major Enquiry Forms Major Enquiry HOLMES tapes Witness Protection Authorisations / Files Financial Investigation / Disclosures Racial Incident forms Homophobic Incident forms Policy Files Productions Notes Unless otherwise directed by Crown Office or Procurator Fiscal Service or subject to an order under the Criminal Procedure Scotland Act 1997 Section 194 in respect of the Scottish Criminal Cases Review Commission. In addition, where there is a requirement for a convicted person to register on the Sex Offenders Register, the registration does not take place until after the completion of a custodial sentence. Police forces and law enforcement agencies must ensure that where the custodial sentence exceeds the retention periods (6 and 12 years), appropriate records should be retained to facilitate risk assessments which require to be undertaken

Crime 1.1

The process of retaining productions relating to a Crime or Offence made known to the Police: Serious Crime Enquiry (unresolved) Serious Crime Enquiry (resolved) Standard Crime Enquiry (unresolved) Standard Crime Enquiry (resolved)

Retain until case is resolved Dispose of at conclusion of criminal proceedings unless instructed otherwise by Court or Crown From date made known to Police, Current Year + 6. (Case assessment may initiate further retention) In very minor cases, Current Year + 2. Dispose of at conclusion of criminal proceedings unless instructed otherwise by Court or Crown

See also ACPOS Policy for Disposal of Crime Records & Productions

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Appendix C Recommended Record Retention Periods & Policy Guidance

Recommended Record Retention Periods

166

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Appendix C Recommended Record Retention Periods & Policy Guidance

ACPOS Policy for Disposal of Crime Records and Productions and Guidance for the Implementation of the Policy
Introduction
This policy and guidance has been prepared to standardise retention, review and disposal of crime records and productions across the Scottish Police Service.Where an investigation has been jointly conducted either between Forces or with SPSA, agreement must be reached on appropriate retention of records. (Separate provisions cater for the retention, review and disposal of Intelligence material in Scotland.) Cases are categorised into two types - serious and standard crime enquiries, further sub-divided into resolved and unresolved cases. Resolved cases include all detected cases and those where it has been established that no crime has taken place as well as, for example, those cases which either result in a not proven or not guilty verdict but where enquiries have been concluded to the satisfaction of the investigating Force. Unresolved cases include all undetected cases as well as, for example, those where the case is detected but the offender has absconded or cannot yet be brought to justice.

Retention and Review


Based on the definitions below, every case will fall into one of three general categories: Serious unresolved cases - retain until case is resolved Serious resolved cases - retain for current year + 12 years from the date made known to the police Standard cases (resolved & unresolved) - retain for current year + 6 years from the date made known to the police (Where a case is resolved more than 12 months after the date made known to the police, substitute this date with the date on which the matter was reported to the relevant prosecuting authority) Where appropriate however, as defined further in this document, a case may be subject to review based on certain criteria and retention may then be extended as appropriate. Furthermore, where a case is the subject of a notified appeal, dispute, complaint or civil litigation or where notification to preserve records has been received from the Scottish Criminal Cases Review Commission (SCCRC), disposal of records must be suspended until the outcome is known

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Serious Crime Enquiries

1 Murder, Culpable Homicide (including statutory) & Drug Related Deaths Any contravention of Sections 1 or 3A of the Road Traffic Act 1988 Any Drug Related Death as defined in the 1994 Scottish Office Ministerial Drugs Task Force Report 2 Serious & Series Sexual Offences Cases which will require a sex offender assessment to be conducted on release and where the custodial sentence exceeds the initial retention period All incidents of rape or sodomy (both Common Law and Statute) All incidents of incest committed against children (both Common Law and Statute, but excluding circumstances where all parties are children and willing participants) The following crimes when committed by a stranger (ie a person not previously known to) against a child: Abduction of a child with intent to rape Assault with intent to rape or ravish Indecent assault Lewd, indecent or libidinous behaviour or practices Section 106(1) of the Mental Health (Scotland) Act 1984 (c.36) (have unlawful sexual intercourse with a mentally handicapped female) Section 8 of the Criminal Law (Consolidation) (Scotland) Act 1995 (abduction of girl under 18 for the purposes of unlawful intercourse) The following crimes when committed against a child: Section 107(1) of the Mental Health (Scotland) Act 1984 (being in a position of trust have unlawful sexual intercourse with a mentally handicapped female) Section 10 of the Criminal Law (Consolidation)(Scotland) Act 1995 (person having parental responsibilities causing or encouraging sexual activity in relation to a girl under 16) Section 3 of the Sexual Offences (Amendment) Act 2000 (c.44) (abuse of position in trust), where the offender was 20 or over Section 311(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) (nonconsensual acts) Section 313(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (persons providing care services: sexual offences)

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Appendix C Recommended Record Retention Periods & Policy Guidance

Investigations into any of the crimes listed below will be classed as Serious Crime Enquiries. Unresolved cases will be retained until the case is resolved and resolved cases are subject to a retention period of current year plus 12 years.

168

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3 Serious Violence Any serious assault where:

Appendix C Recommended Record Retention Periods & Policy Guidance

There is involvement of a firearm or imitation A victim suffers significant permanent impairment or disfigurement There has been endangerment to life 4 Abduction Involving Extortion Including cases where the abduction is resolved prior to any demand being issued but evidence or intelligence exists to suggest the motive was extortion 5 Any Act of Terrorism 6 High Value Acquisitive Crime This category includes: Robberies involving cash or property to the value of 50,000 or more Non-violent acquisitive crime and cases of seizure or restraints under the Proceeds of Crime Act 2002 involving cash or property to the value of 100,000 or more This category does not normally include acquisitive crimes involving clandestine possession (eg Section 178 Road Traffic Act 1988) 7 Major Drug Trafficking This category includes: Enquiries involving the importation or exportation of controlled drugs (including offences under Customs and Excise Management Act 1979) Any case of domestic (UK) drug trafficking involving a monetary street value of 100,000 or more On conclusion of the case or at any point during the retention period however, the retention of a serious case record may be extended by a further six years followed by review, where the case meets any of the following criteria: Do the records contain information necessary for the prevention and detection of crime or apprehension and prosecution of offenders which is not otherwise available, eg on CHS or PNC Did the case involve a custodial sentence in excess of twelve years? Did the case involve as yet unidentified forensic evidence?

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169

All cases where a decision has been made either to destroy the case records or extend the retention period, the decision-makers details, the reason(s) for the decision and date of the decision must be recorded. Standard Crime Enquiries All other criminal investigations not listed above will be classed as Standard Crime Enquiries and are therefore subject to a retention period of current year plus 6 years. On conclusion of the case, or at any point during this period however, a standard crime enquiry may be reclassified as serious, thereby extending the retention to current year plus 12 years, where the case meets any of the following criteria: Does other information/ intelligence exist which suggests that the crime may be part of a sequence of escalating violent or sexual offending behaviour? Does the case record indicate that the accused is likely to pose a continuing risk to either children or vulnerable adults? Did the case involve a custodial sentence in excess of six years? Did the case involve as yet unidentified forensic evidence? Does the case involve ongoing operational issues? Does the case involve significant witness protection issues? Did the case involve serious damage (100,000 or more) to property? In all of the above cases, the decision-makers details, the reason(s) for re-designation and date of the decision must be recorded. Records with Historical Value Certain criminal investigations are of intrinsic historical interest to society, whether on a national or local scale. Once there are no longer operational policing reasons to retain investigative material, consideration may be given to retain these records as historical archives. Such further retention will however be the exception rather than the rule and the following aspects must be considered: Did the case have a significant impact on policing strategy? Did the case cause grave public concern or have a significant impact on the community/ society? Did the case involve substantial police resources? Did the case involve landmark developments in policing methods (eg new forensic techniques, case law)? Did the case attract or is it likely to attract significant media or external scrutiny?

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Appendix C Recommended Record Retention Periods & Policy Guidance

170

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Productions Productions are items seized in the course of a criminal and/or deaths investigation into an incident which may give rise to criminal proceedings or a fatal accident inquiry, and which have evidential value in terms of the investigation and possible subsequent court proceedings. The disposal of productions will be conducted as follows: Unresolved Serious Case productions will be retained until the case is resolved. Notwithstanding this, where issues of health and safety, security or best value arise, permission should be sought from the Procurator Fiscal regarding earlier disposal. In these cases, the decision-makers details, the reason(s) for the decision and date of the decision must be recorded. Unresolved Standard Case productions will be retained for current year + 6 years from the date made known to the police except where the case has been identified for exceptional retention during a review. In such circumstances, the productions will be retained in line with the case records Unresolved Minor Case productions may be retained for a lesser period of current year plus 2 years in the following circumstances: Cases where there are no injuries Cases where property damaged/ stolen is of low value Cases where there are no aggravations Cases where there is no available evidence/ intelligence to suggest that the crime is part of a sequence of offending behaviour All Resolved Case productions, both Serious & Standard, will be disposed of following notification from the Procurator Fiscal that criminal proceedings are concluded. Retention of productions for longer periods can only be achieved through formal representation to or from the Procurator Fiscal and such retention will be reviewed annually unless the Procurator Fiscal has stipulated a longer retention period. In such cases, the reason for further retention, together with details of the decisionmaker and date of the decision should be recorded.

Appendix C Recommended Record Retention Periods & Policy Guidance

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Valuable/ Sentimental Items None of the above prevents best practice of returning valuable or sentimental items to owners. If this course of action is taken the item may be photographed, replaced by a signed label, together with a supporting corroborative statement from the owner. Notebooks/ Personal Digital Assistants (PDA) Where a Police Notebook or equivalent PDA record has been lodged as a production it should be regarded as such until the conclusion of criminal proceedings at which time it will be retained in accordance with the general rules on notebook management. Scottish Criminal Cases Review Commission (SCCRC) Productions must not be destroyed in instances where notification to preserve them has been received from the SCCRC

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Appendix C Recommended Record Retention Periods & Policy Guidance

Deterioration of Productions Due to their very nature, some productions will deteriorate over time to the point where they have no evidential value - for example forensic evidence such as gel foot and fingerprint lifts and some DNA evidence. Any such productions may be destroyed. In such cases, the reason for the destruction, together with details of the decision-maker and date of the decision should be recorded.

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173

Appendix D

Schedule of Relevant Non-Sensitive Material

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Appendix D Schedule of Relevant Non-Sensitive Material

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175

Appendix E

Schedule of Relevant Sensitive Material

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Appendix E Schedule of Relevant Sensitive Material

176

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Appendix E

Schedule of Relevant Sensitive Material

Appendix E Schedule of Relevant Sensitive Material

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177

Appendix F

Schedule of Relevant Highly Sensitive Material

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Appendix F Schedule of Relevant Highly Sensitive Material

178

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Appendix F

Schedule of Relevant Sensitive Material

Appendix F Schedule of Relevant Highly Sensitive Material

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179

Appendix G

Reviewing Process

Investigation Commences Collate, Retain & Record all Information Lines of Enquiry Apply Relevancy Test Apply Sensitivity Test
Yes

Reveal to COPFS via SPR/Subject Report/NS Schedule

Manifestly No Irrelevant

Retain & Assess

Exculpatory Test

No

Becomes Relevant

Highly Sensitive, Confidential & Above

Level & Reason of Sensitivity

Sensitive RESTRICTED

Apply Exculpatory Test Reveal to COPFS


Highly Sensitive Sensitive

Reveal to COPFS

Subject Report GPMS

Confidential & Above Highly Sensitive Schedules

Subject Report/GPMS Sensitive Schedule

SPR - Remarks Section

Retain in Accordance with ACPOS Review Policy

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Appendix G Reviewing Process

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181

Appendix H

Generic Notes
1) This material contains sensitive information and may require redaction prior to disclosure. 2) This witnesss statement was taken after a questionnaire was completed during the house to house exercise in this investigation. 3) These individuals were interviewed during house to house enquiries and did not provide any relevant information and it has been agreed with the appropriate Solemn Legal Manager within COPFS that the forms need not be submitted. 4) This production has been forwarded for forensic examination. 5) This scientific joint report is a copy and the original has been forwarded directly to COPFS by the SPSA 6) The date in the date of submission to PF column relates to when the electronic version of this statement was submitted.

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Appendix H Generic Notes

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183

Appendix I

Reason for Sensitivity


The reasons why the material is assessed as being sensitive must be recorded, and the following types of material have been identified as having the potential of being sensitive and must be considered, if relevant, for insertion on the sensitive schedule; 1) Material relating to national security 2) Material received from intelligence and security agencies 3) Material relating to intelligence from foreign sources, revealing sensitive gathering methods 4) Information received by the police on an undertaking by them that the information is received in confidence 5) Material relating to the use of a telephone system and supplied for intelligence purposes only 6) Material relating to informants, undercover police officers and others at risk if identified 7) Material revealing police surveillance location(s) or the identity of any person allowing that location to be used 8) Material revealing techniques and investigative methods relied upon by the police 9) Material that facilitates the commission of other offences or hinders the prevention and detection of crime 10) Internal police communications 11) Material upon the strength of which search warrants were obtained 12) ID parade participant personal details 13) Material generated by an official concerned with the regulation of corporate bodies or financial activities 14) Material generated by social services, an (area) child protection committee or other party and relating to a child or young person 15) Police intelligence information 16) Restricted personal information, such as addresses, telephone and vehicle numbers 17) Material relating to the private life of a witness (including witness Criminal History records, medical and Social Work records) 18) Police misconduct information

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Appendix I Reason for Sensitivity

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185

Appendix J

ACPOS Disclosure
Police Division: Station: Date: SUBJECT: UNDERTAKING BY REVIEWING OFFICER OF COMPLETION AND TRANSMISSION OF SCHEDULES OF RELEVANT MATERIAL INITIAL REPORT

CASE AGAINST: REP OFFICER: AGENCY REF: PF REF: 1 With reference to the above subject and previous correspondence from (insert details of PF requesting and PF office details) dated (insert date) I have to report as follows. As the reviewing officer in this case, I can confirm that as per the date of this report, I have reviewed all the information which has been obtained or generated during this investigation and to the best of my knowledge and belief, all relevant material, has been recorded on the appropriate schedules of relevant material. There are no schedules of sensitive relevant material in this case. (Dictate only if required) The schedules that have been completed and submitted are as follows: (Insert schedule file name as per naming convention) (Insert schedule file name as per naming convention) 5 These schedules of relevant material were forwarded to (Insert case management unit details) on . (insert time and date). I respectfully request that this report be forwarded to the Pf (Insert Office as per Initial Pf memo), for the attention of (Insert recipient as per initial Pf Memo) along with the relevant schedules of relevant material. Name: Not Protectively Marked

3 4

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Appendix J Subject Report Proforma Schedule Undertaking Initial Report

Subject ReportNot Proforma Schedule Undertaking Protectively Marked Initial Report Appendix K

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Appendix K

Subject Report Proforma Schedule Not Protectively Marked UndertakingAdditional Material


Appendix L

ACPOS Disclosure
Police Division: Station: Date: SUBJECT: UNDERTAKING BY REVIEWING OFFICER OF COMPLETION AND TRANSMISSION OF SCHEDULES OF RELEVANT MATERIAL ADDITIONAL MATERIAL

CASE AGAINST: REP OFFICER: AGENCY REF: PF REF: 1 With reference to the above subject and previous correspondence from (Insert details of PF requesting and PF office details) dated (Insert date) I have to report as follows. As the reviewing officer in this case, since the previous submission of schedules, further relevant material has been obtained in this investigation. I have reviewed all the additional information which has been obtained or generated and to the best of my knowledge and belief, can confirm all relevant material has been recorded on the appropriate schedules of relevant material. There are no schedules of sensitive relevant material in this case. (Dictate only if required) The schedules that have been completed and submitted are as follows: (Insert schedule file name as per naming convention) (Insert schedule file name as per naming convention) 5 These schedules of relevant material were forwarded to (Insert case management unit details) on (insert time and date. I respectfully request that this report be forwarded to the Pf (Insert Office as per Initial Pf memo), for the attention of (Insert recipient as per initial Pf Memo) along with the relevant schedules of relevant material. Not Protectively Marked

3 4

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Appendix K Subject Report Proforma Schedule UndertakingAdditional Material

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189

Subject Report Proforma Schedule Not Protectively Marked UndertakingNo Additional Material
Appendix M

ACPOS Disclosure
Police Division: Station: Date: SUBJECT: UNDERTAKING BY REVIEWING OFFICER OF COMPLETION AND TRANSMISSION OF SCHEDULES OF RELEVANT MATERIAL NO ADDITIONAL MATERIAL

CASE AGAINST: REP OFFICER: AGENCY REF: PF REF: 1 With reference to the above subject and previous correspondence from (Insert details of PF requesting and PF office details) dated (Insert date) I have to report as follows. As the reviewing officer in this case, and since the previous submission of schedules I can confirm that to the best of my knowledge and belief that as per the date of this report there has been no relevant material obtained or generated in this case which has not already been listed on the schedules submitted. I respectfully request that this report be forwarded to the Pf (Insert Office as per Initial Pf memo), for the attention of (Insert recipient as per initial Pf Memo)

Name: Rank: Reg No:

Not Protectively Marked

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Appendix L Subject Report Proforma Schedule UndertakingNo Additional Material

Appendix L

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191

Appendix M

Subject Report Defence Access Not Proforma Protectively Marked to Information held by Police Appendix N
ACPOS Disclosure (To be completed prior to completion of officers tour of duty)
Police Division: Station: Date: SUBJECT: DISCLOSURE BY AUTHORISED ACCESS BY DEFENCE AGENT TO MATERIAL OR INFORMATION HELD BY THE POLICE

CASE AGAINST: REP OFFICER: CRIME REF: PF REF: 1 2 With reference to the above subject I have to report a follows.

. 3

On (Insert date) the reporting officer was instructed via (Insert method of communication) to permit access to a representative from (Insert name and address of company,) to examine material or information currently held by (insert Police force or Agency) in relation to the prosecution in the above case On (insert time and date) the reporting officer contacted the above company (Insert method of communication) and spoke to (insert details of person spoken to) and arranged for access to be facilitated as per the Pfs instructions for ( Insert Time, Day, Date and location of access) The reporting officer was advised that (Insert details of attending rep) would attend / would not attend (Insert any reason for nonattendance). On (Insert day/time/date) after verification of their identification (insert details) was permitted access as instructed under the terms of the aforesaid Pf instruction to the following listed material or information within (Insert venue) by (Insert officers details) who remained throughout the period of access. The access visit terminated at (insert time) Items viewed by defence agent (Insert list of items viewed by defence agent) I respectfully request that this report is forwarded to the Pf (insert details of Pf office), for the attention of (Insert recipient as per initial Pf Memo)

Name: Rank: Reg No:


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Not Protectively Marked

Appendix M Subject Report Proforma Defence Access to Information held by Police

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193

Appendix N

Subject Report Proforma Unrepresented Accused Access to Information held by Police

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Appendix N Subject Report Proforma Unrepresented Accused Access to Information held by Police

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195

Appendix O

National Standard Statement Templates

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Appendix O National Standard Statement Templates

196

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Appendix O National Standard Statement Templates

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197

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Appendix O National Standard Statement Templates

198

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Appendix O National Standard Statement Templates

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Introduction
The Chief Constables Council originally mandated adoption of the Government Protective Marking Scheme in 2001. This is now a formal compliance requirement of the ACPO/ACPOS Information Systems Community Security Policy. Since the original guidance leaflet was published, there have been significant changes that are incorporated in this revised issue. Personnel need to be aware that it is important that protective security practices: When selecting the appropriate marking, personnel should also consider: The majority of information held within the Police Service contains personal or sensitive data and therefore requires a level of Protective Marking. (Information already in the public domain will not require a protective mark.) This guide predominantly deals with assets that are marked at either PROTECT, RESTRICTED or CONFIDENTIAL, as they comprise the vast majority of sensitive information assets held within the Police Service. It is intended to give very basic guidance on the application of protective markings to police information together with storage handling and movement requirements. It is not exhaustive! For further clarification and in particular for advice regarding SECRET and TOP SECRET please contact your Information Security Officer. Implement the need to know principle Are workable and user-friendly Deal with all the prevailing threats Are effectively co-ordinated by the Personnel who use them Are just, open and reasonable, where they may impinge on the lives of staff As from February 2007 there are now five levels of Protective Marking* that can be applied to sensitive assets, depending on the degree of sensitivity involved: It does not provide exemption from Freedom of Information legislation Regular reviews of the material may be necessary in order to downgrade or destroy any such material

Appendix P

Handling Protectively Marked Material


1. PROTECT 2. RESTRICTED 3. CONFIDENTIAL 4. SECRET 5. TOP SECRET

Handling Protectively Marked Material

A Guide for Police Personnel

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How damaging the consequences would be if material was lost, stolen, disclosed or destroyed Correct marking is applied (over or under classification damages the credibility of the system) A compilation of many items marked at the same level may require the whole to be marked at a higher level The scheme should not be used to protect against sensitivities likely to arise due to inefficiency or administrative error

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*NB When used as a Protective Marking the words PROTECT / RESTRICTED / CONFIDENTIAL / SECRET and TOP SECRET, will be displayed in capitals to differentiate them from ordinary use within documents. The same rule applies when attaching a descriptor (see later) all DESCRIPTORS will be written in capital letters.

199

Appendix P Handling Protectively Marked Material

200

Appendix P Handling Protectively Marked Material

Impact Criteria Public Order, Public Safety and Law Enforcement

PROTECT
Impact Level 3
Would accidental or deliberate compromise of assets marked RESTRICTED be likely to cause: Would accidental or deliberate compromise of assets marked CONFIDENTIAL be likely to cause:

RESTRICTED
Impact Level 4 Impact Level 5

CONFIDENTIAL

SECRET
Would accidental or deliberate compromise of assets marked SECRET be likely to cause:

Impact Levels 1 & 2

Would accidental or deliberate compromise of assets marked PROTECT be likely to cause:

Impact Level 1

No impact on life and safety; Minor disruption to emergency service activities that requires reprioritisation at local (station) level to meet expected levels of service; No impact on crime fighting; No impact on judicial proceedings;

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Impact Level 2

A risk to a group of individuals safety or liberty; Disruption to emergency service activities that requires reprioritization at national level (e.g. one police force requesting help from another) to meet expected levels of service; Impeding of the investigation of, or facilitate the commission of serious crime (as defined in legislation); A serious crime prosecution to collapse; cause a conviction for a serious criminal offence to be declared unsafe or referred to appeal;

A threat to life directly leading to limited loss of life; Disruption to emergency service activities that requires emergency powers to be invoked (e.g. military assistance to the emergency service) to meet expected levels of service; Major, long term impairment to the ability to investigate serious crime (as defined in legislation); A number of criminal convictions to be declared unsafe or referred to appeal (e.g. through persistent and undetected compromise of an evidence-handling system);

TOP SECRET
Impact Level 6
Would accidental or deliberate compromise of assets marked TOP SECRET be likely to: Lead directly to widespread loss of life; Threaten directly the internal stability of the UK or friendly countries leading to widespread instability; Cause major, long term impairment to the ability to investigate serious organised crime (as defined in legislation); Cause the collapse of the UK Judicial system;
When a protective marking is applied to an information asset it is indicating its value in terms of the damage that is likely to result from that information being compromised. The sections on this page detail the criteria specific to public order, public safety and law enforcement for each level of Protective Marking.

Inconvenience or cause discomfort to an individual; Minor disruption to emergency service activities that requires reprioritisation at area / divisional level to meet expected levels of service; Hindrance to the detection of low level crime Minor failure in local Magistrates Courts

NOTE

PROTECT is not a national security classification and the policy relating to the use of RESTRICTED remains unchanged. Not to be used for operational issues. Must be accompanied by a Descriptor, (e.g. PROTECT STAFF).

A risk to an individuals personal safety or liberty Disruption to emergency service activities that requires reprioritization at the County or organizational level to meet expected levels of service Impeding of the investigation of, or facilitate the commission of low level crime (i.e. crime not defined in legislation as serious crime), or hinder the detection of serious crime A low-level criminal prosecution to collapse; cause a conviction for a lowlevel criminal offence to be declared unsafe or referred for appeal A breach of proper undertakings to maintain the confidence of material provided by third parties; A breach of statutory restrictions on disclosure of material (does not include the Data Protection Act 1998, where non-sensitive information is involved); An undermining of confidence in public services;

Protective Marking is the method by which the originator of an asset (that is all material assets, ie papers, drawings, images, disks and all forms of electronic data records), indicates to others, the levels of protection required when handling the asset in question, in terms of its sensitivity, security, storage, movement both within and outside the originators own department or force and its ultimate method of disposal.

PROTECT
Impact Level 3
Would accidental or deliberate compromise of assets marked RESTRICTED be likely to cause:

Impact Criteria Defence, International Relations and Intelligence

RESTRICTED

CONFIDENTIAL

SECRET

Impact Levels 1 & 2 Would accidental or deliberate compromise of assets marked CONFIDENTIAL be likely to cause: Would accidental or deliberate compromise of assets marked SECRET be likely to cause:

Impact Level 4

Impact Level 5

Would accidental or deliberate compromise of assets marked PROTECT be likely to cause:

Impact Level 1

Delay or loss of minor supply service;

Impact Level 2

Inconvenience or cause discomfort to an individual; The loss of a number of minor supply services;

A risk to an individuals personal safety or liberty; Minor loss of confidence in Government; More difficulty to maintain the operational effectiveness of security of UK or allied forces (e.g. compromise of UK forces doctrine or training materials); Embarrassment to Diplomatic relations; Disadvantage to a major UK company; Damage to unique intelligence operations in support of intelligence requirements at JIC Priority Three or less;

A risk to a group of individuals safety or liberty; Major loss in confidence in Government; Damage to the operational effectiveness of security of UK or allied forces (e.g. compromise of a logistics system causing re-supply problems without causing risk to life); Disadvantage to a number of major UK Companies; A halt in unique intelligence operations in support of intelligence requirements at JIC Priority Three or less, or damage unique intelligence operations in support of intelligence requirements at JIC Priority Two;

TOP SECRET
Impact Level 6

A threat to life directly leading to limited loss of life; A direct threat to the internal political stability of the UK or friendly countries; Severe damage to the operational effectiveness or security of UK or allied forces (e.g. compromise of the operational plans of units of company size or below in a theatre of military operations); A rise in international tension, or seriously damage relations with friendly governments; Disadvantage to the UK in international negotiations (e.g. advance compromise of UK negotiation strategy or acceptable outcomes, in the context of a bilateral trade dispute); A halt in unique intelligence operations in support of intelligence requirements at JIC Priority Two, or damage unique intelligence operations in support of intelligence requirements at JIC Priority One;

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Would accidental or deliberate compromise of assets marked TOP SECRET be likely to: Lead directly to widespread loss of life; The collapse of internal political stability of the UK or friendly countries Cause exceptionally grave damage to the operational effectiveness or security of UK or allied forces (e.g. compromise of the operational plans of units of battalion size or above in a theatre of military operations) Directly provoke international conflict, or cause exceptionally grave damage to relations with friendly governments Severely disadvantage the UK in international negotiations (e.g. advance compromise of UK negotiation strategy or acceptable outcomes, in the context of a major EU or WTO negotiating round) Halt unique intelligence operations in support of intelligence requirements at JIC Priority One.

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Appendix P Handling Protectively Marked Material

202

Appendix P Handling Protectively Marked Material

PROTECT
Impact Level 3
Would accidental or deliberate compromise of assets marked RESTRICTED be likely to cause: Would accidental or deliberate compromise of assets marked CONFIDENTIAL be likely to cause:

RESTRICTED
Impact Level 4 Impact Level 5

Impact Criteria Critical National Infrastructure

CONFIDENTIAL

SECRET
Would accidental or deliberate compromise of assets marked SECRET be likely to cause: Loss of telecoms nationally for up to a week; Loss of power in a region causing distribution for more than 1 week; Severe losses to UK Business of up to 1 billion; Severe national disruption of key transport systems for up to a week; Breakdown of regional water suppliers and/or sewage service (effecting >100 people) or prolonged drought (up to 3 months); National disruption to the distribution of essential goods, fuel, raw materials and medicines and widespread disruption of food for up to a month;

Impact Levels 1 & 2

Would accidental or deliberate compromise of assets marked PROTECT be likely to cause:

Impact Level 1 Local loss of telecoms for up to 24 hours; Loss of power in a region causing distribution for up to 24 hours; Major loss of a Leading Financial company of millions; Disruption of a number of key local transport systems for up to 24 hours; Breakdown of local water supplies and/or sewage service for a number (up to 100) of people or prolonged drought (up to 1 month); Regional disruption to the distribution of some essential goods, fuel, raw materials and medicines and/or widespread disruption of food for up to a week; Loss of telecoms of a region for up to 24 hours; Loss of power in a region causing distribution for up to a week; Major loss of a Leading Financial Company of 10s millions; Major disruption of key regional transport systems for up to a week; Breakdown of local water suppliers and/or sewage service for over 100 people or prolonged drought (up to 1 month); Regional disruption to the distribution of some essential goods, fuel, raw materials and medicines and widespread disruption of food for up to a month;

Local loss of telecoms for a few hours; Local power outages causing disruption for up to 12hours; Minimal impact on finance (less than 10,000); Minor disruption of a key local transport systems for up to 12 hours The breakdown of local water supplies and/or sewage service for a small number (<10) of people for more than a day; Local disruption to the distribution of some essential goods, fuel, raw materials, medicines and/or food of up to a week;

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Impact Level 2

TOP SECRET

Impact Level 6 Would accidental or deliberate compromise of assets marked TOP SECRET be likely to cause:

Local loss of telecoms for up to 12 hours; Local power outage causing distribution for up to 24hours; Minor loss to a Financial Company (less than 1 million); Minor disruption of key local transport systems for up to 24 hours; The breakdown of local water supplies and/or sewage service for a small number (<50) of people for more than a week; Local disruption to the distribution of some essential goods, fuel, raw materials, medicines and/or disruption of food for up to a month;

Loss of telecoms nationally for more than 1 week; Loss of power nationally affecting the whole of the UK for more than 1 week; Severe financial losses to UK Business of 10s billions; Severe national disruption of key transport systems for over a month; Total breakdown of national water supplies and/or sewage service (effecting >100 people) or prolonged drought (> 6 months); National disruption to the distribution of essential goods, fuel, raw materials and medicines and widespread disruption of food for over a month;

Marking documents Storage of hard copy documents

Application / Activity
Top and bottom of every page Protected by one barrier, e.g. a locked container within a secure building.

PROTECT
Top and bottom of every page Protected by one barrier, e.g. a locked container within a secure building.

Handling, Storage and Movement


RESTRICTED CONFIDENTIAL

Disposal of paper waste

Disposal of magnetic media

Reuse of Media (Hard Drives etc)

Movement within Force using own internal distribution system

Top and bottom of every page Protected by two barriers e.g. a locked container in a locked room, within a secure building. Use a SEAP approved cross cut shredder. Keep secure when left unattended. Securely destroy. Floppy disk - dismantle and cut disk into quarters & dispose with normal waste. Optical Media - destroy completely disintegrate, pulverise, melt or shred. Use approved contractor for bulk items. Triple overwrite using CESG approved software. In a new sealed envelope with protective marking shown. Transit envelopes must not be used.

Movement between forces/partner agencies

Use secure waste sacks. Keep secure when left unattended. Securely destroy. Floppy disk - dismantle and cut disk into quarters & dispose with normal waste. Optical Media - destroy completely disintegrate, pulverise, melt or shred. Use approved contractor for bulk items. Triple overwrite using CESG approved software. In a sealed envelope with protective marking shown. A transit envelope may be used if sealed with a security label. By post or courier, in a sealed envelope. Do not show protective marking on the envelope. May be used. May be used if private secure network. May be used in cases of operational urgency if due caution is exercised. Not to be used. May be used in cases of operational urgency if due caution is exercised. May be used. May be used. Not to be used without encryption service compliant with ACPO/ACPOS Community Security Policy.

Use secure waste sacks. Keep secure when left unattended. Securely destroy. Floppy disk - dismantle and cut disk into quarters & dispose with normal waste. Optical Media - destroy completely disintegrate, pulverise, melt or shred. Use approved contractor for bulk items. Triple overwrite using CESG approved software. In a sealed envelope with protective marking shown. A transit envelope may be used if sealed with a security label. By post or courier, in a sealed envelope. Do not show protective marking on the envelope.

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May be used with due diligence and exercise of caution. May be used. May be used for Impact Level 1 May be used for Impact Level 2 in cases of urgency if due caution is exercised. May be used. May be used. May be used EXCEPT transmission of sensitive personal information must be protected by an encryption service compliant with ACPO/ACPOS Community Security Policy

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Force Internal Phone Network

Public Telephone, Mobile Telephone and WAP phone networks Pager Systems & SMS Facsimile Machines

By post or courier. Double enveloped both fully addressed. Protective marking shown on inner envelope only. Return address on outer envelope. May be used if private secure network in cases of operationally urgency. Not to be used. Not to be used. Not to be used unless encrypted fax service available.

Airwave Radios

Force Data Network, Email Services using PNN GSI NHS CJSM MOD secure addressing conventions Internet Email / Internet Services

Not to be used unless enhanced end to end encryption service deployed. Not to be used without encryption service compliant with ACPO/ACPOS Community Security Policy. Not to be used without encryption service compliant with ACPO/ACPOS Community Security Policy.

If there is a requirement to use any of the above methods of communication at a higher level than recognized safe to do so, the operational urgency and the need for transmission must be weighed against the risk of a security breach, for which the force may be held accountable. If it is decided that such transmissions are essential, they should be kept short and guarded speech used. The use of some form of prearranged codes should be considered to avoid identifying officers, informants or locations.

Requirements and restrictions on the handling/disposal etc of SECRET and TOP SECRET material are not included in this aide-memoire. Should you find yourself confronted with or required to deal with such material, seek advice or assistance from your force Information Security Officer, who will be able to advise you accordingly.

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Appendix P Handling Protectively Marked Material

204

Appendix P Handling Protectively Marked Material

Descriptors
DESCRIPTORS that can be used with either PROTECT or RESTRICTED include: COMMERCIAL Relating to a commercial establishments processes or affairs CONTRACTS Concerning tenders under consideration and the terms of any tenders INVESTIGATIONS Concerning investigations into disciplinary or criminal matters, involving members of the police service PRIVATE For information collected through electronic government services provided to the public and agencies and relating to the individual or agencies Other DESCRIPTORS include: POLICY Proposals for new or changed force policy, prior to publication VISITS Concerning details of visits by, for example, royalty, ministers and other dignitaries. CHIS (Covert Human Intelligence Source) regarding informants and their handling. Any informant related information should be protectively marked CONFIDENTIAL as a baseline, with the appropriate handling procedures. Information which identifies an informant should be marked SECRET

When you originate material requiring a Protective Marking, you may, if necessary, add a DESCRIPTOR where it helps indicate to others the nature of the sensitivity and the groups of people who need access.

This leaflet is designed to inform staff of procedures and help them determine and indicate to others, the levels of protection required when handling official documents. The term document refers to all material assets, ie papers, drawings, images, disks and all forms of electronic data records. This leaflet is designed as an aid only. Further and more comprehensive guidance can be found in the Manual of Protective Security or from your own Information Security Officer.

One exception is the PROTECT marking which should always be used with a DESCRIPTOR from the following list:

APPOINTMENTS Concerning actual or potential appointments that have not yet been announced

HONOURS Unannounced recognition for exceptional Achievement

MANAGEMENT Policy and planning affecting the interest of groups of staff

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MEDICAL Medical reports, records and material relating to staff

PERSONAL Material intended for the person to whom it may be addressed

STAFF Concerning references to named or identifiable staff or personal confidences entrusted by staff to management

With the exception of PERSONAL or PRIVATE, which may be used by themselves, the above descriptors may only be used in conjunction with a protective marking. Special handling instructions may also take the form of caveats, nicknames and code words or exceptionally other handling instructions e.g. DESCRIPTOR may take the form of an operation name such as - OPERATION RAINBOW EYES ONLY.

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205

Appendix Q

5x5x5
Information
A ALWAYS RELIABLE There is no doubt of the authenticity, trustworthiness and competence of the source. Information has been supplied in the past and has proven to be reliable in all instances. This grading should only apply to cases where reliability can be assured. B MOSTLY RELIABLE Information has been received from this source in the past and in the majority of instances has proven to be reliable. C SOMETIMES RELIABLE Some of the information received from this source has proved to be both reliable and unreliable.Any information with this grading should not generally be acted upon without corroboration.Where a potential risk demands a response, the intelligence manager will need to obtain as much corroboration as possible before commissioning action. D UNRELIABLE Information under this grading will refer to individuals who have provided information in the past which has routinely proved unreliable. There may be some doubt regarding the authenticity, trustworthiness, competency or motive of the source.Any information with this grading should not be acted on without corroboration E UNTESTED SOURCE This grading refers to information received from a source that has not previously provided information to the person recording or where they have provided information which has not been tested. The information may not necessarily be unreliable but should be treated with caution. Corroboration of this information should be sought.

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Appendix Q 5x5x5

206

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Intelligence

1 KNOWN TO BE TRUE WITHOUT RESERVATION This could be information generated from an event or incident which was witnessed or dealt with by a law enforcement officer or prosecuting agency. This grading refers to first hand information. 2 THE INFORMATION IS KNOWN PERSONALLY BY THE SOURCE BUT NOT TO THE PERSON REPORTING Information under this grading will be believed to be true by the source although is not personally known by the person recording the information. The information is provided second hand. 3 THE INFORMATION IS NOT KNOWN PERSONALLY TO THE SOURCE BUT CAN BE CORROBORATED BY OTHER INFORMATION Information given may have been received by a source from a third party; its reliability has been corroborated by other information, e.g. CCTV, other force / agency systems. 4 THE INFORMATION CANNOT BE JUDGED The reliability of this information cannot be judged or corroborated. Information with this grading must be treated with caution. 5 SUSPECTED TO BE FALSE Information with this grading should be treated with extreme caution.This information should be corroborated by a reliable source before any action is taken. Any person applying this grade must justify within the body of the report why it is appropriate to use this grading.

Appendix Q 5x5x5

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207

Appendix R

Version Control

AMENDMENT INFORMATION
Amended By AB AB AB AB SL Role NDIT NDIT NDIT NDIT
NDIT

Version Amended 0.1 0.2 0.3 0.4 1.0

Date
12/03/2009 08/05/2009 21/05/2009 29/06/2009

Comments Review by ACPOS Steering Group Review by COPFS Comment Review by National Disclosure Strategic Manager Review by Disclosure Steering Group Badging and Format

24/09/2009

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Appendix R Version Control

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209

Appendix R

Version Control

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Appendix R Version Control

210

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Notes

Notes

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211

Notes

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Notes

212

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Notes

Notes

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Designed and Printed by Scottish Police Services Authority Elphinstone House 65 West Regent Street Glasgow G2 2AF T: +44 (0)141 585 8300 F: +44 (0)141 331 1596 www.spsa.police.uk