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Audio-visual evidence

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.

Principles

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).

Assessment

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.

Charging

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. 

Unused material

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.  

Contact our pre-charge investigations lawyers

If you would like to explore how Olliers can assist you please contact Ruth Peters or Matthew Claughton for a confidential discussion.

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Case Studies

Case Study One
21-year-old male of good character faced allegation of date rape in which the complainant claimed to have been unconscious for ten hours. Olliers were able to prove social media activity throughout the night and downloading of an app together with text activity from the alleged victim the following day. Olliers also provided police with details of a flatmate who witnessed sexual activity. Police were also provided with a motive for the fabricated complaint. Following representations to the police, matter came to a swift conclusion without even going to the Crown Prosecution Service for a charging decision.

Case Study Two
Young man faced allegation of sexual assault in a nightclub. It was suggested that he had assaulted a complete stranger without any earlier interaction. Olliers were able to show that alleged victim had in fact connected with the suspect on WhatsApp at the time of the incident which would have been impossible on her version of events. Olliers were also able to show that complainant’s boyfriend had unexpectedly arrived in the nightclub which gave an explanation and motive for the false allegation. No charges were brought.

Case Study Three
Client faced an allegation of historic rape based upon one incident thirty years earlier. Olliers were able to produce to the police a poem sent to the defendant by the complainant ten years previously i.e. twenty years after the alleged incident in which she admitted to her infatuation with the suspect at the time of the incident. Representations were made including a defence explanation for the allegations being made.  Crown Prosecution Service took the view that there was not a realistic prospect of conviction and no charges were brought.

Case Study Four
Client  was arrested and interviewed under caution in connection with historic allegations of rape. He was subsequently released under investigation pending further police enquiries. On contacting Olliers, we immediately adopted a proactive approach and established contact with both the officer in the case and the duty solicitor who had represented the client at the police station. Following detailed consideration of the police station notes, and on taking thorough instructions from our client, we drafted representations against charge on his behalf. The aim of our representations was to persuade the Crown Prosecution Service that there was ‘not a realistic prospect of conviction’ as required by the Code for Crown Prosecutors. The police investigation was ongoing for some time and we periodically liaised with the investigating officer to provide the client with updates. Having considered our representations, the police decided to take no further action against our client and the matter came to a close.

Case Study Five
Our client was arrested and interviewed under caution in relation to historic allegations of rape, sexual assault and controlling or coercive behaviour. He was subsequently released under investigation pending further police enquiries. The client contacted Olliers shortly after his arrest. Following this, we obtained the case papers from the duty solicitor who had represented him during interview. We also established contact with the investigating officer and drew their attention to some initial points about the case which would require further investigation. As the investigation developed, we drafted comprehensive representations against charge based on our client’s detailed instructions and relevant material he had provided. On considering our representations, the police decided to take no further action against our client and the matter was concluded.

Case Study Six
Our clients were directors of a payment processing company. This was a multi-jurisdictional investigation involving restraint of assets on several continents. Extensive police liaison took place, a substantial amount of exculpatory material was provided to the police. Complex and ultimately successful applications to vary and discharge restraint orders were made. Representations against charge were submitted. The matter concluded following a successful application under the Criminal Justice and Police Act 2001 for return of items unlawfully seized by police and decision was made to take no further action against our clients.

Case Study Seven
Client E was arrested and interviewed under caution concerning allegations of rape and sexual assault. He was released under investigation as the police continued with their enquiries. Client E contacted Olliers only a few days following his arrest to request pre-charge representation. We swiftly proceeded to make contact with the investigating officer to establish a line of communication. We also quickly obtained the case papers from the duty solicitor whom represented Client E at the police station. For the following five months, we maintained contact with the investigating officer and regularly liaised with them regarding bail requirements and the progress of their investigation. After in-depth consideration of the police station notes and all of the information and instructions provided by the client, we disclosed some material to the investigating officer concerning the allegations. Following review by the police and consideration of their lines of enquiry, a decision to take no further action was reached thereby concluding the investigation.

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