Over recent years the amount of Unused Material in criminal case has increased exponentially. When premises are searched in cases involving any level of complexity, it is invariably computers, hard drives and laptops that attract the attention of investigators.
For the Defence, Unused Material is a crucial area of case preparation. Cases can turn on material that did not form part of the Prosecution case but where meticulous defence preparation and requests for Disclosure of material in the possession of the prosecution have led to an acquittal.
Yet some feel that now, due to the sheer volume of Unused Material that may exist it, the most salient and potentially helpful or exculpatory material is not reaching the Defence. (It may also be relevant that in publicly funded cases a Defendant may prejudiced because his team is no longer paid to look at Unused Material, thereby hindering proactive Defence strategies. However this is something that the best defence teams have learnt to live with).
It is now crucial for Defence teams to be familiar with the updated Attorney General Guidelines in respect of Digitally Stored Unused Material, which recognise the enormous increase in the volume of digitally stored material.
A Disclosure Officer may inspect retained material by sampling or the usage of search terms but a transparent approach needs to be adopted and the Defence have a role to play in defining the scope of searches.
The general principles are that data must not be changed, those accessing data must be competent to do so, an audit trail must exist and the Officer in the case must ensure adherence to these principles.
Save for where provided by the Criminal Justice and Police Act 2001, if Legal Professional Privilege applies – material should not be seized.
Prior to a search of premises, Investigators are expected to consider what they are likely to find and also consider the practical impact of seizure upon the business – an important consideration for defence lawyers when instructed by a client whose business has been paralysed following a search and seizure of material.
Police and Criminal Evidence Act 1984
Under the Police and Criminal Evidence Act 1984 anything for which a search has been authorised can be seized. Significantly, if information is stored electronically it can be reproduced in a visible/legible form in which it can be taken away. This will reduce disruption upon a business.
The Criminal Justice and Police Act 2001 extends powers of search and seizure under PACE 1984. It is important to know that a written notice must be given to the owner/occupier of premises from where items are seized. Moreover materials seized under CJPA 2001 must be kept securely and separately. Provisions exist for examination, retention/return of such material. Retention is limited to evidence and relevant material. Four categories of material can be retained namely – evidence, material inextricably linked to evidence, relevant unused material, material inextricably linked to unused material.
CJPA 2001 allows Investigators to seize items containing LPP material where it is not reasonably practicable to separate LPP material from non LPP material on the premises. Thereafter examination of such material may be undertaken by a person independent of the investigation.
Any items containing LLP material must be reviewed by an independent lawyer and proper records must be kept. Excluded and special procedure material is governed by similar principles to LPP material.
The 1996 Code of Practice requires Investigators and Prosecutors to “pursue all reasonable lines of enquiry including those that point away from the suspect” although this does not involve combing through everything which might conceivably or speculatively assist the Defence. This can be done by way of a sift but equally it can be done by sampling, key words or other appropriate search tools. It is important for the Defence to become involved if search tools are used, they can suggest additional search terms if applicable.
A record or log must be made of all digital material seized or imaged. Records should include searches carried out, persons involved, search words/terms, log of judgments made while finding searches, decisions not to examine “hit” material. Scheduling of material should be carried out in accordance with the 1996 Code of Practice. This may be done in a block and through the use of generic titles.
Third Party Material is that held by a person/organisation other than the Prosecution. The obligation on the Prosecution is to pursue all reasonable lines of enquiry in relation to third parties in the UK. The obligation also applies to material outside the UK.
There is no doubt that we live in changing times and few could have predicted the level of enormous increase in digitally stored material over the last 5-10 years.
However, we all have to keep pace with change and these Guidelines, properly adhered to by prosecuting authorities who in turn are monitored by active defence teams can ensure fairness for a defendant and keep to a minimum the level of disruption caused by the action of Investigators pre charge.
Matthew Claughton is the Managing Partner of Olliers solicitors, Manchester Legal Awards, Crime Firm of the Year 2011.