Protocol for West Midlands

PROTOCOL FOR WEST MIDLANDS

DISCLOSURE OF INFORMATION IN CASES OF ALLEGED CHILD ABUSE AND LINKED CRIMINAL AND CARE DIRECTIONS HEARINGS

1. PARTIES

1.1.The Parties to this protocol are Crown Courts in West Midlands, Designated Family Judges in West Midlands, West Midlands Police, CPS West Midlands and the Local Authorities in West Midlands

1. INTRODUCTION

2.1.This protocol amends and replaces the following existing protocols:

• West Midlands Police ACPO Family Disclosure Protocol: Disclosure of Information in Family Proceedings
• Protocol between CPS, Police and Local Authorities in the exchange of information in the investigation and prosecution of child abuse cases in West Midlands

2.2.In addition, this protocol specifies a procedure to be followed for linked directions hearings when there are concurrent criminal and care proceedings.

2.3.The legal framework on which the duties and responsibilities of the Parties are based is set out at Annex A. In particular, the Police, CPS and Local Authorities have an obligation to protect the confidentiality of information disclosed pursuant to this Protocol.

2.4.This protocol will apply to criminal investigations involving child victims who were aged 17 and under at the time of the alleged offending. and to all children in family cases up to the age of 18.

1. AIMS AND OBJECTIVES

3.1.To provide early notification to Local Authority that criminal investigation has been commenced

3.2.To provide early notification to the police/ CPS of the existence and details of concurrent Family Proceedings

3.3.To provide timely early notification to Local Authority and Family Court of details and timescale of criminal prosecution

3.4.Subject to Family Procedure Rules 2010 (and relevant Practice Directions) Proceedings Rules 1991, to the duty of confidentiality and to ensuring the integrity of the police investigation, to facilitate timely and consistent disclosure of information and documents between the Local Authority and the police/ CPS

3.5.To provide for pre proceedings disclosure in family cases to assist in case preparation

Comment: the PLO approach is to ensure that cases are properly prepared pre issue. Disclosure and the provision of reports from key agencies including the police is essential and this should be explicit[m1][m2]

Comment: is this not encompassed within 3.4?

3.5.3.6.To provide notification to police/ CPS of an application to the Family Court for an order for the disclosure of prosecution material

3.6.3.7.To provide streamlined and standard process for application by police/ CPS for leave of Family Court for disclosure of material relating to Family Court Proceedings.

3.7.3.8.To provide for timely consultation between CPS and Local Authority where Local Authority material satisfies the test in Criminal Procedure and Investigations Act 1996 for disclosure to the defence

3.8.3.9.To specify a procedure for linked directions hearings in concurrent criminal and care proceedings.

1. EARLY NOTIFICATION TO LOCAL AUTHORITY AND REQUEST FOR DISCLOSURE

4.1.As soon as the investigating police officer believes that material exists within the Social Services and Education files which may be relevant to the investigation, he/she will notify the Local Authority by means of a written notice. Each Local Authority will establish a Single Point of Contact (SPOC) within the Legal Department for receipt of the written notice. Details of the SPOC for each Local Authority are set out in Annex Bto this agreement.

Comment: Birmingham City Council SPOC is now the Assistant Director Safeguarding Carole Douch. The administration of disclosure is dealt with by Children’s Services not Legal Services.

4.2.The form at Annex C to this agreement will be used for this purpose. The form will include details of the investigation (and prosecution if commenced). Requests for material must be as prescriptive and detailed as possible and limited to that which is strictly necessary for the pursuit of reasonable lines of enquiry (paragraph 3.6 Code of Practice CPIA). The form at Annex C will include timescales for the police to be given access to relevant material. Timescales will be case specific taking account of the stage/nature of the investigation/prosecution, but will be as long as reasonably practicable.

1. EARLY NOTIFICATION TO POLICE AND REQUEST FOR DISCLOSURE

5.1.The Local Authority will provide timely advance notice to the Police of the contemplation or existence of Family Proceedings using the form at Annex D to this agreement. Where Family Proceedings have commenced, details of all parties (and legal representatives) will be provided. Details of the allocated Local Authority lawyer will be provided. The form at Annex D also acts as a request for disclosure from the Police (to include timescale for disclosure of material). The form at Annex D will be sent to the Detective Inspector or other named designated officer at relevant PPU who will act as the initial point of contact. A list of contact points to be used for this purpose is attached at Annex E to this agreement.

5.2.Where the information or documents sought do not relate to child abuse investigations or material held by PPU, the DI (or other named designated officer) will forward the form at Annex D to the unit or units holding the information or documents and will take responsibility for liaison with those units and ensure the provision of information to the Local Authoritysupply the contact details of the other units to the Local Authority. It is then for those units and the Local Authority to liaise over disclosure of the material sought.

Comment: Birmingham is unhappy about the original proposal. The City Council does not direct police around different parts of the organisation. This simply shifts administrative burdens to local authorities. Birmingham would prefer that the position remains that the PPU takes responsibility for the provision of the information

5.3.It is to be understood by all Parties that the protocol should be used proportionately and is designed to facilitate only requests for items of evidence which the Local Authority held by the police relevant to the central issues in the casecannot easily obtain for itself, which only the police have and which are of central and not peripheral importance to the issues and incidents under consideration by the Family Court. Requests for disclosure should not be drawn any wider than is necessary and only relevant material should be disclosed.

1. SUBSEQUENT NOTIFICATION OF STATUS OF COURT PROCEEDINGS

No Concurrent Family Court Proceedings

6.1.Where form at Annex C is served on the Local Authority prior to charge of the suspect(s), the officer in the case (OIC) will notify the Local Authority SPOC at the point of charge, providing details of offences, bail/ custody status of defendants and court timescales (if known). The OIC will also provide to Local Authority contact details for CPS lawyer.

WWithin 7 days of Crown Court Plea and Case Management Hearing (PCMH), CPS will provide to Local Authority SPOCSPOC details of the future timescale of the criminal case

and details of any directions relevant to the Local Authority or to concurrent Family Proceedings. Such notification by CPS is not required where PCMH constitutes a linked directions hearing in accordance with this protocol.

Concurrent Family Court Proceedings

6.2.Where there are Concurrent Family Court Proceedings there should be early liaison between the Police, CPS , Local Authority Social Care and Legal Services so that timescales for police investigation and charging are known. Within 7 days of Crown Court Plea and Case Management Hearing (PCMH), CPS will provide to Local Authority allocated lawyer (or SPOC if details of allocated lawyer are not known to CPS)details of the future timescale of the criminal case and details of any directions relevant to the Local Authority or to concurrent Family Proceedings. Such notification by CPS is not required where PCMH constitutes a linked directions hearing in accordance with this protocol.

6.2.6.3.As appropriate, the Local Authority will forward the details at paragraphs 6.1 and 6.2 above to the Family Court.

6.3.6.4.Where the form at Annex D is sent to the Police at a stage before details of all parties to the Family Proceedings are known, the Local Authority will notify the police recipient of Annex D of the details of all parties (and legal representatives) to the Family Proceedings. The Local Authority will also provide details of future timetable of the Family Proceedings.

Comment: The above changes reflect what happens in practice. The City Council disagrees with the proposal to extend the SPOC role to cover liaison in family proceedings.

1. DISCLOSURE BY LOCAL AUTHORITY TO THE POLICE

7.1.Upon receipt of the form at Annex C from the Police, the Local Authority SPOC (or delegated officer) will identify and collate relevant material from the Social Services/ EducationChildren’s Services or other files which it is necessary to disclose for the purposes of the police investigation files . Aas appropriate, the SPOC (or delegated officer) will liaise with relevant departments within the Local Authority in the collation of such material. Where the Local Authority.

7.2.Where the Local Authority identifies a school as an independent or academy school, it should notify the police, so that the police may approach the school directly to obtain the material.

7.3.In disclosing material to the police, Local Authority is not agreeing to onward disclosure to the defence. Such disclosure will be decided either by agreement between the Local Authority and the CPS or in default of such an agreement, an order of the court following PII application at Crown Court by CPS.

7.4.Subject to paragraphs 7.5 and 7.6 below, the Local Authority will ensure that documents relating to Family Court proceedings are not included in the files to be examined by the police. Where there are documents relating to Family Court proceedings, the Local Authority will provide a list of that material without describing what it is, in order for the police/CPS, if appropriate, to apply to the Family Court for disclosure. However, the text or summary of a judgment given in such proceedings will be included in the files to be examined by the police.

7.5.Paragraph 7.4 above does not prevent the Local Authority providing to the police the text or summary of a judgement given in the Family Court proceedings. Rule 12.73(1)(c) Family Procedure Rules 2010 and Practice Direction 12G allows for such disclosure.

7.6.Paragraph 7.4 above does not prevent the Local Authority providing to the police documents or information relating to Family Court proceedings in accordance with Rule 12.73(1)(a)(viii) Family Procedure Rules 2010- i.e. where a) the police officer to whom disclosure is made is carrying out duties under s46 Children Act 1989 or serving in a child protection or paedophile unit and b) disclosure is for the purposes of child protection and not for the purposes of the criminal investigation.

7.7.Where material is disclosed under Rule 12.73(1)(a)(viii), the police cannot make onward disclosure of any documentation or information contained therein for the purpose of the investigation or prosecution without the express permission of the Family Court (for the avoidance of doubt, this will include disclosure to CPS).This issue was clarified in two recent High Court judgements: RE H (CHILDREN) (2009)[2009] EWCA Civ 704 & A DISTRICT COUNCIL (Applicant) v M (Respondent) & WEST YORKSHIRE POLICE (Interveners) (2007) Fam Div (Baron J) 10/10/2007

7.8.Where for reasons of confidentiality, lack of requisite third party consent or otherwise, the Local Authority is not able to include other material (not relating to family proceedings) in the files to be examined by the police, then the Local Authority will notify the police Disclosure Officer in writing of the existence of this material, and indicating the reason why the material is not being made available to the police. Such a course should be exceptional because the Local Authority recognises that the material will be regarded as sensitive by the police and CPS. It will not be disclosed to the defence without the consent of the Local Authority.

7.9.Within the timescales set out in Annex C (or otherwise agreed between the Local Authority and the police), the police will examine and review the material collated by the Local Authority. The review will usually take place on Local Authority premises but may be elsewhere by agreement.The Police may make notes and/or take copies of the materialwhich is relevant for the purposes of Criminal Procedure and Investigations Act 1996 and paragraph 2.1 Code of Practice CPIA 1996. None of these notes or copied material will be disclosed to the defence except with the consent of the Local Authority or order of the court (see paragraph 12.8- 13.3 below)as required for the purposes of the investigation.

7.10.7.9.

1. DISCLOSURE BY POLICE/ CPS TO LOCAL AUTHORITY

8.1.Where criminal proceedings have been commenced (or are contemplated), the Police should consult with the CPS lawyer before a decision is made on whether to disclose police material to the Local Authority.

8.2.Within the timescale specified by the Local Authority in Annex D, the police will provide the requested material to Local Authority. The police will complete and return the second part of the form at Annex D. The Local Authority agrees that the police material will only be disclosed to the professionals and Parties in the Family Proceedings (unless the permission of the court is obtained to disclose material to others).

8.3.Visually recorded interviews (ABE interviews) will not released to Local Authority except against written undertaking from the Local Authority in order to prevent the unauthorised use of the evidence. The form of undertaking at Annex F should be used for this purpose. Comment: this obligation is present in the existing ACPO protocol

8.4.The police will not disclose material where to do so might prejudice the investigation and/or prosecution. The police will indicate on the second part of Annex D the approximate date on which disclosure can be made.

1. FAMILY COURT PROCEEDINGS: ORDERS FOR DISCLOSURE AGAINST POLICE/ CPS

9.1.Where disclosure is not agreed under Annex D procedure, Local Authority to notify police officer completing Annex D and CPS lawyer of any application to Family Court for disclosure of prosecution material. Local Authority to notify police/ CPS of date and time of Family Court hearing at which disclosure will be determined. The Standard Direction at Annex G to this agreement should be available to the Family Court. Where appropriate, police/ CPS to provide input to Local Authority in drafting Directions.

9.2.Local Authority to notify police/ CPS of application by party other than Local Authority to Family Court for disclosure of prosecution material. Local Authority to notify police/ CPS of Family Court hearing at which disclosure will be determined.

9.3.Where practicable, police/ CPS should attend Family Court hearing to explain implications for criminal trial when orders for disclosure are being considered by the court. In any event, police/ CPS should provide written representations to the Family Court and Local Authority where disclosure is opposed (explaining why disclosure might reasonably be considered capable of prejudicing the investigation and/ or prosecution).

9.4.The Local Authority will ensure that any Order against the police and CPS is served forthwith on the police/ CPS.

1. POLICE/ CPS APPLICATION TO FAMILY COURT FOR DISCLOSURE OF MATERIAL RELATING TO FAMILY PROCEEDINGS

10.1.At the stage prior to committal to Crown Court or service of prosecution papers pursuant to section 51 Crime and Disorder Act 1998, applications will be generally be made by West Midlands Police Legal Services. After this stage, applications will generally be made by CPS.

10.2.Applications by the police for disclosure must contain details of named officer to whom release is sought and must specify the purpose and use to which the material is intended to be put. Applications should seek leave (where appropriate) to disclose the material to CPS and to disclose the material to the criminal defence solicitors (should disclosure to the defence by required under CPIA1996) .

10.3.Applications by CPS must specify the purpose and use to which the material is intended to be put and should seek leave to share the material with the police and (if this is necessary under CPIA) with the defence.

10.4.Applications will be made on Form C2. No court fee will be payable where the applicant is the Police or CPS. The application must be served by police or CPS on all Parties to the Family Proceedings (Local Authority will have informed the police of details of all Parties to Family Proceedings as per paragraph 6.4 of this protocol).

10.5.Where it is practicable to seek prior written consent to disclosure from all Parties to the Family Proceedings, police or CPS should do so. Application should then be made in writing to the Family Court for consent order, obviating the need for a hearing.

10.6.Alternatively, the police/ CPS should consult with Local Authority allocated lawyerSPOC(or SPOC if details of allocated lawyer are not known to CPS) to arrange for Local Authority to make application on their behalf to the Family Court for disclosure to police/ CPS. This is more likely to be practicable where a hearing at Family Court is listed imminently.