Police requests for third party disclosure during Criminal Investigations

Please ensure that the terms below have been met before completing the request information form you will find in the link. Once you have completed the form this will be forwarded to the Clinical Lead to assist with your request for information.  

Reasonable line of enquiry –

• Disclosure requests that are not a reasonable line of enquiry may well breach a survivor’s right to a private life under Article 8 European Convention on Human Rights.
• Police should only request disclosure where there is a reasonable line of enquiry based on specific facts of the case.
• Police should not request disclosure on a blanket basis that they ‘always’ look at certain categories of documents. That would be a speculative request or fishing expedition, which are not permitted. 

What amounts to a reasonable line of enquiry?

• The legal test is “a suspicion that the material held by the third party was likely to satisfy the disclosure test.” The disclosure test is whether the material might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused.
• Material that relates only to the credibility of the survivor would not usually be a reasonable line of enquiry unless there was a specific reason in the particular case.

Police can make a legitimate request for disclosure of:

• Documents containing an account of the offence by the survivor e.g., therapy records which contain discussion of what happened during the offence. However, if the prosecution then review the notes and there is nothing that is inconsistent or raises any other issues that would assist the defence or undermine the prosecution case then they do not have to disclose to the defence. If there is something they think meets the disclosure test, then they do have to disclose. They can block out other material that is not relevant.

Police should not make a request for disclosure in the following situations, unless there is a specific factual reason in the individual case:

• ISVA notes and pre-trial therapy notes which by their nature do not include accounts from the survivor of the offence because of policies of ISVA services and pre-trial therapy not to discuss the facts of the offence. If the police say they want to see the notes to check whether there is an account of the offence by the survivor in the notes this is not legitimate. The ISVA service or therapist can confirm whether there is an account or not and the police should accept this.
• Documents which pre-date the offence. These obviously will not contain an account of the offence and should not be requested simply to investigate the survivor’s credibility unless there is some specific reason in the individual case. If a specific reason is given, need to consider whether it is a reasonable line of enquiry.
• Other documents which do not contain an account from the survivor of the offence, and which are only sought to explore their credibility, such as education records, social services records, medical and mental health records.

If disclosure is refused by the organisation or the survivor:

• The CPS can make an application to the court for an order for disclosure.  There will be a hearing where the organisation that holds the records (e.g., ISVA service, therapist) and also the survivor can attend and tell the court their reasons for objecting to the disclosure. They can rely on privacy rights. Legal aid is available for a survivor to be represented (if they are financially eligible)
• If the court makes an order for disclosure, then the organisation can provide the document.
• The defence can make an application to the court for an order for disclosure. They would need to give specific reasons why they believed that the material meets the disclosure test, which is not just speculation