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EHJ November 2004
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Julie Barratt outlines the potential pitfalls with disclosure
and how to avoid falling into the trap of revealing more
than you intend
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Disclosure can be a minefield. The rule is simple - that the prosecutor
must disclose to the defence all material relevant to the case.
The problem with disclosure is that sometimes material discloses
rather more than you might want, and the information disclosed
may present challenges all of its own.
Often a complaint may be received that at first glance does not
have prosecution written all over it. When it does become clear
that prosecution may be the way to go, the file may have sustained
collateral damage that may be difficult to deal with. The first
damage to be sustained may be with correspondence, particularly
where this passes through the hands of a number of people. Incoming
letters will often have the date of receipt and a number written
on them for post book purposes, but sometimes other information
appears on them - the peremptory "see me" written by
a senior officer who wants to know what is going on, or worse,
some more obvious instruction "respond to this as a matter
of urgency" or "is this matter still on-going?" -
both instructions would have to remain on the letter and would
be seen by the defence on the letter being disclosed. "See
me" is easily dealt with - a responsible senior officer should
want to know what progress has been made, but comments like the
latter two invite defence comment. It is a cardinal sin to write
on original correspondence - using sticky notes that can be removed
is preferable unless you want the innermost thoughts of the person
distributing the mail to feature in the case.
Disclosure of photographs has the potential to cause embarrassment.
Generally, the prosecutor will be selective about which photographs
are used, picking the ones in focus and showing issues relevant
to the case. The defence, however, will wish to check all of the
shots taken to ensure that those on which the prosecutor does not
intend to rely would not be helpful to the defence case. This is
not a problem when the remainder of the shots are of the premises
or incident in question. It does, however, become a problem when
the remainder of the shots are of the officers' children or domestic
pets, inanely grinning clerical staff or worse, in the case of
building control officers of my acquaintance, of the officers "mooning" at
the camera. Hilarious at the time no doubt, but it is difficult
to claim professional credibility in the face of such evidence.
In such cases, less is more - either using the whole film, or where
that is not possible, just rolling the film on and not taking the
full number of exposures ensures that candid shots do not come
back to haunt the photographer.
Officers' notebooks can contain potentially explosive stuff. Long
boring stakeouts present opportunities for active minds and fertile
imaginations to run riot. Harmless doodling rarely is - there is
usually some underlying reason for the mind to be so occupied and
a picture can sometimes speak a thousand words, none of them helpful.
The relevant pages of officers' notebooks are disclosable, and
if they feature less than flattering cartoons of the main players
in the case, or a deep and undying affection for a football club,
band or member of the opposite sex, they display a less than wholly
focused attitude to the surveillance, which can lead to hard questions
as to whether the officer was watching or was absorbed in their
drawing at the critical point. Such questions probably will not
bring the case to its knees, but they tend to suggest a less than
professional attitude.
Internal office documentation must also be disclosed - the file
note or the telephone message scribbled on whatever was to hand
when the call was received are part of the case file and are therefore
disclosable. I have seen file notes that contain relevant material
alongside requests to pay lottery money and be at the leisure centre
at a prescribed time to play five-a-side.
Such extraneous information is not damaging but an example I was
quoted could have been. It seems that the officer taking the telephone
message had crossed swords with the caller on a previous occasion,
hence the message "SBFO rang" was understandable to the
officer for whom the message was left. The translation - less than
intelligent illegitimate person from O rang - would have to be
provided to the defence, and it is unlikely that their reaction
would be one of delight, even if they shared the stated view.
Anything that relates to a prosecution, or goes onto a case file
has the potential to be disclosed. Therefore, officers should ensure
that nothing other than relevant information is included. It is
better to stifle creativity than to lose credibility.
Julie Barratt is director of CIEH Wales
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