Audio-visual evidence under the Director of Public Prosecution’s Guidance on Charging 2020
The Director of Public Prosecution’s Guidance on Charging (31st December 2020) provides a clear structure in which criminal allegations are investigated and prosecuted. Defence teams must have a detailed working knowledge of the Guidance as part of a proactive pre charge engagement strategy.
This page focuses on Audio-visual evidence.
The significance of the Guidance for defence teams
The Olliers Investigations Team place huge emphasis in monitoring the police and their compliance with the Guidance as part of our pro-active approach to pre-charge work.
We look to engage with police at an early stage of an investigation. We always consider whether we can make representations against charge, by arguing that there is not a ‘realistic prospect of conviction’ or that it is not in the public interest to prosecute. The Guidance was published on the same day (31st December 2020) as the arrangements for ‘pre charge engagement’ (Annex B Attorney General’s Guidelines on Disclosure 2020).
Director of Public Prosecutions Max Hill QC;
‘There has been a major shift in working practices and priorities throughout the criminal justice system in recent years and it is vital there is clear guidance to help police and prosecutors navigate these effectively.
‘The Attorney General’s guidelines focus on getting disclosure right and getting it done early so its impact on the evidence is known. These are significant changes and we must continue to work collaboratively to embed them.’
At Olliers we regard the Guidelines as a powerful resource during the pre charge engagement process.
The significance of audio-visual evidence during the investigation stage of a criminal case
At Olliers our pre charge team appreciate the potentially huge significance of audio visual material during the investigation stage of a case. It is of vital importance to ensure that the guidance below is adhered to and that audio visual material that may assist the defence is preserved.
Audio-visual evidence may include audio recordings, e.g. a call to an emergency service provider, video recordings (CCTV, body worn video, or digital camera recordings), photographs or images.
The relevance and potential use of audio-visual evidence should be understood from the outset of an investigation.
A recording or image may capture an incident or part it, identify a suspect, or record a suspect’s involvement, capture other evidence. It may demonstrate the seriousness of the offence, it may contain an account of a victim, witness, or a suspect. Significantly for defence practitioners it may contain material which undermines the prosecution or which may assist the defence.
The guidance is not definitive and each case should be considered on its merits and where appropriate, prosecutors should consider specific guidance (e.g. body worn footage, visually recorded interviews, indecent images).
Prosecutors and police decision makers should review any relevant audio-visual material to assess whether it is ‘key evidence’ or unused (and potentially disclosable).
If audio-visual evidence is assessed as being ‘key evidence’, it should be made available to the prosecutor. Relevant sections of any lengthy audio-visual evidence should be clearly identified and extracted.
In Full Code Test cases, the key evidence should be available at the point of charge. Where audio-visual evidence forms part of key evidence, it should be made available to the prosecutor when referring a case for a charging decision, either directly or through a link.
If audio-visual material is provided to the CPS at the pre-charge stage the officer who has viewed the material must provide a summary of the recording including counter times for relevant sections.
If audio-visual material cannot be made available to the CPS pre-charge the police must give reasons.
It may be possible to proceed without viewing the evidence if a statement is provided by the officer who has viewed the material.
The statement must confirm whether the recorded material captures all or part of the incident. It must identify the relevant section and describe who and what is seen including relevant actions. Significantly for the defence, it should describe the evidential relevance including that undermines the prosecution case or assists the defence. The statement should also explains the basis upon which the suspect can be identified including clothing worn. Reference should be made to whether the material was shown to the suspect in interview and any response given. Finally the statement should confirm the quality of the recording including, and whether the suspect can be clearly identified.
The prosecutor or decision maker will then decide whether to proceed based on the statement, taking into consideration other available evidence, whether it provides a continuous account and whether anything put forward by the suspect requires further consideration of the material.
In the record of charging decision a prosecutor the reasons for proceeding without viewing audio visual material. They must also set an action for the material to be available to be viewed within seven days of charge.
Material for First Hearing
In anticipated not guilty plea Magistrates’ Court cases and in all Crown Court cases if audio-visual evidence has not been supplied and it is key evidence, it should be provided to the prosecutor before the first hearing. It should also be provided in anticipated guilty plea cases if it is the only evidence or it is likely to have an impact on sentencing.
In such cases CCTV evidence should be provided to the court and the defence as part of the prosecution’s initial details if it would be relied upon at trial and has been identified as important. The requirement also applies to video footage.
Audio-visual evidence should be referred to in the factual summary (MG5 or otherwise) required for charging or first hearing. It should reference, content, suspects account at time of arrest/interview/charge, provenance and any issues in relation to viewing sharing or copying the evidence.
Once audio-visual material is determined key evidence consideration should be given to other material generated by the line of inquiry. This should be assessed and classed as unused and consideration be given to whether it meets the disclosure test.
The Guidance recognises ‘the overarching principles’ set out in Sir Brian Leveson’s review of ‘Efficiency in Criminal Proceedings’, the most important of which is perhaps the concept of ‘getting it right first time’
Police officers and prosecutors must comply with this Guidance to ensure that charging decisions are fair and consistent, and comply with the Police and Criminal Evidence Act, the PACE Codes of Practice, and the Code for Crown Prosecutors (“the Code”). As the police get to grips with the Guidance it is inevitable that mistakes will be made. Failure to follow the Guidance may risk cases failing or decisions being subject to legal challenge.
The guidance is issued by the DPP for police use, but the provisions apply equally to other investigators where cases are prosecuted by the CPS
At Olliers we recognise the importance of defence teams being at least as familiar with the obligations upon the police as are their police counterparts.