Forensic 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 Forensic evidence
The significance of the Guidance for defence teams
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.
Pre-charge relevance of Forensic evidence in a criminal investigation
At Olliers our Investigations team appreciates the potentially huge significance of forensic evidence during the investigation stage of a case.
Forensic evidence is evidence obtained by scientific methods, its significance will vary from case to case.
The impact of forensic evidence must be assessed before a charging decision is made (Full Code Test). In Threshold Test cases an informed decision should be made about the likely impact of forensic evidence.
Use of Streamlined Forensic Reports (SFRs) is encouraged. SFRs may cover fingerprint evidence, data/digital downloads, data material, DNA evidence, drugs, footwear, marks and traces, firearms and toxicology.
An SFR1 is a summary of the forensic evidence that is served on the defence to ensure that they are aware of the nature of the evidence and web evidence and where possible to secure an admission as to contents. It must contain sufficient detail for the defence to make the admission.
Information sent to the prosecutor should provide context such as location of recovered evidence and its significance. The prosecutor should also be informed about any other findings, such as DNA/fingerprints, which do not relate to the suspect, and their attribution, crime scene/exhibit photography should be provided if available. If a stage 1 SFR is not admitted, a stage 2 SFR may be required.
If the case proceeds to trial and the matter is complex or elements of the SFR are challenged then a full evidential statement will be required.
If the case involves controlled substances and identification is challenged, further evidence will be required after charge. Investigators and prosecutors should have regard to up-to-date guidance in relation to the admissibility of the evidence.
SFRs should be available both for charging purposes and as part of the Magistrates’ Court Initial Details of the Prosecution Case (IDPC). Delay may have an adverse impact on evidence being agreed and early guilty pleas.
In all cases the prosecution should be aware of the existence of forensic evidence and the stage reached in terms of preparation of reports etc. A proactive approach is required in custody cases due to custody time limits.
The CPIA Code of Practice should be complied with. Full and accurate records must be maintained for scene examinations and these must be available for the disclosure officer. Where forensic analysis are negative and point away from the suspect or towards another individual, this must be communicate to the prosecutor as soon as possible (defence practitioners should be particularly alert to this issue).
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.