Disclosure of Information Between Family and Criminal Agencies and Jurisdictions: 2024 Protocol

A new  2024-Protocol in relation to Disclosure of Information Between Family And Criminal Agencies And Jurisdictions has been issued replacing the 2013 Protocol and Good Practice Model – Disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings.

This new protocol applies to the exchange of information and material between criminal and family agencies and jurisdictions. It relates to all private and public family law proceedings and all material held by the police. 

The judiciary, local authorities, police representatives, the National Police Chiefs’ Council and Crown Prosecution Service have developed this protocol which is to be applied from 1 March 2024 onwards.

2024 Protocol Disclosure of Information Between Family and Criminal Agencies and Jurisdictions

This protocol is in three parts:

• Part A: disclosure from the police to family proceedings
• Part B: disclosure sought by an investigator
• Part C: linked directions hearings

Part B is most relevant for the purposes of criminal lawyers in relation to disclosure sought by an investigator.

Disclosure sought by an investigator

An investigator may seek information about family proceedings from a local authority in writing. This is called a “Part B Request for Information”.

Attorney General’s Guidelines on Disclosure

The responsibilities of an investigator in respect of material which may be held by a third party are set out in the Attorney General’s Guidelines on Disclosure. An investigator will seek material from a third party if it is:

• relevant to an issue in the case;
• constitutes a reasonable line of enquiry to obtain it; and
• it is necessary and proportionate to do so

The request must be made prior to any charging decision so that any material disclosed will form part of the material submitted for the charging decision. The charging decision must be taken only when all outstanding reasonable lines of inquiry have been pursued. Occasionally the existence of relevant material comes to light after a charging decision has been made and an investigator will still seek such material.

The investigator’s responsibility to follow all reasonable lines of enquiry, including seeking material from a third party, is a key factor in securing the defendant’s right to a fair trial.

The investigator will first reveal the existence of relevant material to the prosecutor on a schedule of relevant non-sensitive material or, if the material is sensitive on a schedule of relevant sensitive material. The prosecutor must decide what material, if any, meets the disclosure test and provide that material to the defence. When seeking material from a third party, the investigator will expect to reveal its existence if relevant to the prosecution and defence, unless in relation to the latter it is sensitive. The investigator must not be put in a position where they are unable to reveal the existence of, or provide, relevant material to the CPS. Nor should the investigator be put in a position of being unable to reveal the existence of material to the defence unless it is, in fact, sensitive.

A third party may give handling instructions and the investigator and prosecutor will abide by the handling instructions. It will only be in the most exceptional circumstances, and where there is an urgent and compelling reason to do so, that material will be disclosed other than in accordance with such instructions. 

Sensitive material

Where a third party asserts that material which is being sought is sensitive, the following is important:

• the investigator, and prosecutor, may need to establish (a) why the assertion of sensitivity is made and (b) whether the material is itself sensitive, and whether any steps can be taken to allay those concerns – sometimes material is said to be sensitive when on further analysis it is not (or need not be)
• only material which meets the disclosure test must be provided to the defence – the prosecutor must carefully apply this test to all material
• it may be possible to make disclosure of material which meets this test without compromising its sensitivity – for instance, by redacting the document where the redacted sections do not constitute disclosable material, or providing a form of words which conveys what is disclosable about the document without providing the document itself

In circumstances where (i) the material is genuinely sensitive, (ii) the disclosure test is met and (iii) disclosure cannot be made without compromising its sensitivity, the prosecution may either decide not to proceed with the case, or to seek a public interest immunity ruling.

Police access to family proceedings information and material

Practice Direction 12G Family Procedure Rules allows a party to proceedings to provide to the police and the CPS the text or summary of the whole (or part) of a judgment for the purpose of a criminal investigation. In order to make a focused and proportionate request for material, the police may seek from a local authority or other party to proceedings the written judgment, if prepared by the judge, a note of the judgment taken by a party at court (with their permission and approved by the judge), or a transcript if this has been ordered. A local authority must provide one or more of these upon request, having determined what is available and what can be provided.

A Family Court judge who gives a judgment which they consider should be brought to the attention of the police may make directions for their written judgment, or an agreed note prepared by the advocates, to be sent to the police.

Where a local authority is a party to proceedings, it must also provide a list of material within the family proceedings papers to the police, without describing the specific content. The local authority must where possible highlight the documents on the index which are likely to be relevant to the criminal proceedings and for which an application for disclosure might be made.

If, following receipt of a Family Court judgment and/or the list of material, the police seek further information or material they will do so by completing the request form at Annex 6, to explain what is sought, and why.

Where proceedings are live a local authority must assist by establishing or assisting the police to establish whether the parties consent to the provision of the material. Form C2 must be completed by the police. The local authority must assist by providing the police with the information needed to complete form C2.

The Family Court material is provided to the police for further dissemination to the CPS, defence and court and the court order should make this clear.

In appropriate cases where there is a linked criminal investigation or prosecution, the police must with sufficient notice be provided by the local authority with dates for hearings and appropriate Orders made by the Family Court, as necessary.

Police access to local authority information and material

If the police believe that a third party holds material that may be relevant to the investigation, that third party must be told of the investigation as soon as possible and alerted to the need to preserve relevant material. There is no legal obligation on the third party to do so but the protocol advises this is best practice.

The police must inform local authorities as soon as possible of any decision to take no further action in a case where a request for material has already been made to avoid public resources being used to consider material  no longer required.

Consent is not required by law for disclosure to be made. The local authority must consider the appropriate lawful basis and conditions for sharing material with the police on the circumstances and merit of each individual request in line with GDPR and the Data Protection Act 2018.  The form includes the views of the individual concerned, unless there is a justified reason not to ascertain the individuals’ views. Any views must be taken into account but are not binding.

A local authority will not provide material which has been requested in Annex 6 but which relates to proceedings involving children under the inherent jurisdiction of the High Court, Children Act 1989, Adoption and Children Act 2002 or which otherwise wholly or mainly relate to the maintenance and upbringing of children unless expressly permitted by the relevant court or permitted by way of the Family Procedure Rules 2010.

This means that a local authority cannot automatically disclose to the police documents prepared specifically for the above proceedings or information which has emerged during the course of the proceedings once they have begun.  The local authority can however disclose documents which were in existence prior to the proceedings beginning, even if they were then filed as evidence within the proceedings at a later date.

The local authority must also not provide the police with material from other third parties which it may have in its possession without the agreement of the other third party and data controller of that material.  However, the local authority must tell the police where there is further material and what that material is, as well as the name and contact details of the author/medical practice/authority so the police can seek release of the material by approaching such  third party directly. 

Specialist lawyers for domestic offences

At Olliers, we specialise in representing individuals facing investigation or prosecution in relation to allegations of a domestic nature. We understand the complexities of cases involving allegations of a domestic nature and that investigators will inevitably only have one side of the story and are rarely as straightforward as may be initially presented to police.

At Olliers we specialise in representing individuals at the pre-charge investigative stage of the case and advocate a proactive approach to pre-charge engagement with investigators. We look to engage with police at an early stage of the investigation and will always look to make representations against charge by arguing there is not a ‘realistic prospect of conviction’ or that ‘it is not in the public interest to prosecute’.

The specialist Olliers pre-charge team recently held a panel discussion in relation to disclosure of material from family proceedings during a criminal pre-charge investigation. 

Contact our specialist team of domestic lawyers

If you are being investigated or face prosecution in relation to allegations of domestic violence please contact our specialist team by completing the form below, telephoning 0161 834 1515 (Manchester) or 020 3883 6790 (London) or email info@olliers.com. Whilst our Head Office is based in Manchester, we also have a London office and our team of specialist lawyers represent individuals across England and Wales frequently in relation to domestic allegations.