FOREWORD by suchenfz

VIEWS: 3 PAGES: 133

									  ENFORCEMENT PROCEDURES




GEN-33/March 2009/35132
                            IMPORTANT NOTE
This Volume has been produced by Legal Services of Nuneaton and Bedworth Borough
Council.

The document has been adopted by Members and therefore constitutes formal Council policy.

Individual Procedures cannot cover every possible contingency and in cases of doubt,
Officers should consult Line Management.

The Procedures are intended as a guide to Officers and there will be occasions when they
may not completely fit the circumstances of the case. Where it has been necessary to depart
from the Procedures, Line Management must be informed of the details and reasons.




GEN-33/March 2009/35132
                                   INDEX
                           TITLE                                 PAGES

             The Principles of Enforcement                         1

             Covert Surveillance                                  22

             Searches and Warrants                                24

             Tape Recorded Interviews                             29

             Continuity of Evidence                               59

             Procedure for the Preparation for Prosecution        72

             Procedure for the Disclosure of Unused Material      80

             Data Protection Act                                  94

             Environment and Safety Information Act 1988         101

             Environmental Information Regulations               104

             Human Rights Act                                    111

             Procedure for the Use of Digital and Audio Visual
             Media in Evidence                                   121




GEN-33/March 2009/35132
                 THE PRINCIPLES OF
                   ENFORCEMENT
INDEX
              1.0    Introduction

              2.0    Legal Provisions

              3.0    Specific Considerations

              4.0    Statutory Code of Practice for Regulators

              5.0    Specific Enforcement Actions

              6.0    Prosecution

                            a) Supplement 1 (Flowchart for determining Prosecution)
                            b) Supplement 2 (Explanatory Notes to Supplement 1)

              7.0    Cautions

                            a)   Supplement 1 (Home Office Circular 30/2005)
                            b)   Supplement 2 (Formal Caution Flowchart)
                            c)   Supplement 3 (Explanatory Notes to Supplement 2)
                            d)   Supplement 4 (Format of Formal Caution)

              APPENDIX 1            Legislation relevant to Enforcement.




GEN-33/March 2009/35132
1.0   Introduction

1.1   The Council has it own Enforcement Policy in respect of Environmental Health,
      Planning    and     Building Control.       This    can   be    viewed    on
      www.nuneatonandbedworth.gov.uk. The following should be read in conjunction
      with the Council policy.

      The following Procedure deals with the main Principles of Enforcement

1.2   Wherever possible, officers will seek to find solutions which are arrived at by
      agreement and co-operation and will keep in mind the maxim that prevention is better
      than cure.

1.3   However, the aim behind much of the department‟s efforts is the protection of persons
      at work, the general public and the environment from harm caused by failure to
      comply with the safeguards provided for in law.

      This being the case, there will be circumstances in which enforcement is unavoidable
      and the Council does not shrink from using its full legal powers, including
      prosecution, where it is necessary to do so.

1.4   There are two distinct facets to enforcement, which may be taken to mean either of
      the following:

      a) Enforcement for Compliance. This ensures that the Council has programmes in
      place for monitoring compliance by businesses and individuals with the various
      legislation affecting them.

      For example, there will be inspection programmes in place for food premises,
      workplaces, authorised processes and HMOs.

      b) Enforcement for Non Compliance In this aspect of enforcement, the options
      available for taking action against businesses or individuals for ignoring or otherwise
      failing to comply with their legal obligations are discussed.

1.5   For the purposes of this Procedure, enforcement for non compliance includes the
      following:

      a) Prosecution

      b) Cautions

      c) The service of Notices.

      d) Works in Default, including seizure of equipment

      e) Revocation (of Licenses or Authorisations)

      f) Written warnings (sometimes known as informal Notices)



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      and the principles outlined in the Code of Practice for Regulators and paragraphs 3.1
      to 4.8, below, are to be applied to all such actions.

1.6   Enforcement action may be taken as a result of an incident, a complaint or an
      inspection.

2.0   Legal Provisions

2.1   Apart from the specific laws relating to the technical aspects of environmental health
      work, there are a number of other legal or semi-legal provisions relating to or having a
      bearing on enforcement as a whole.

      These include:

             a) The Statutory Code of Practice for Regulators

             b) PACE/CPIA                    c) Regulation of Investigatory Powers Act

             d) Human Rights Act             e) Freedom of Information Act

             f) Data Protection Act          g) Environmental Information Regulations

             h) Local Government Act         i) Race Relations (Amendment) Act

             j) FSA CoP and HSC Guidance.

2.2   Many of the above contain little more than a passing reference to the needs of
      enforcement and their main requirements are brought together in Appendix 1. Some,
      such as PACE, CPIA, RIPA and others, are fundamental. Detailed Procedures have
      been written for these latter which are to be found elsewhere in this Enforcement
      Procedures series.
       In essence, all of the enforcement provisions of the above must be complied with at
      all times when they are relevant to a particular task. In addition, approved Procedures
      which exist either for Environmental Health as a whole, or to cover the work of a
      specific

3.0   Specific Considerations

3.1   Enforcement is to be based on firmness and fairness. Where it is necessary,
      enforcement will be undertaken without fear or favour and without consideration of
      the race, ethnic background, religion, social status, colour, sex or sexual orientation of
      any persons involved.

3.2   If any person exerts undue or improper pressure in an attempt to influence a decision
      concerning enforcement, it is to be reported to line management without delay.

3.3   As a general rule and where there may be options, the level of enforcement
      contemplated will be the minimum at which a satisfactory solution is thought to be
      achievable.



GEN-33/March 2009/35132                                                                       3
4.0   Statutory Code of Practice for Regulators

      This can be found on the Department for Business Enterprise and Regulatory Reform
      (BERR) website http://breberr.gov.uk/regulation.

5.0   Specific Enforcement Actions The Procedures or guidance to be followed when
      conducting specific types of enforcement are contained in paragraphs as follows:

      a) Prosecution. Paragraphs 6.0-6.13 and associated Supplements 1 and 2

      b) Cautions. Paragraphs 7.0 - 7.5 and associated Supplements 1,2,3,4.

      c) Notices. Paragraphs 8.0 - 8.4 and associated Supplements 1and 2

      d) Works in Default. Paragraphs 9.0 - 9.2

      e) Revocation. Paragraphs 10.0 - 10.5

      f) Written warnings. Paragraphs 11.0 - 11.3

6.0   Prosecution

6.1   Where statutory powers to prosecute exist, the decision to do so is not to be taken
      lightly.

      Each case is unique and must be processed according to its own merits. There is to be
      no suggestion that Prosecution will automatically follow the discovery of an alleged
      offence. In particular, alternative actions to prosecution which are outlines in
      paragraphs 6.3, below, must be considered in all cases.

6.2   The decision as to whether to prosecute or not must be constantly reviewed and, if
      necessary, changed up until such time as an irrevocable step (e.g. offering a Formal
      Caution) is made.

6.3   Alternatives to Prosecution The following steps must be considered as alternatives to
      prosecution, where applicable, as part of the decision making process. However, each
      must be examined in light of Public Interest (see guidance at paragraphs 5.0 to 5.3
      below);

      a) Caution

      b) Works in default

      c) Written Warning

6.4   Test for Prosecution Before a decision to prosecute is taken, the case must satisfy, in
      general terms, the following Tests:

      a) EVIDENTIAL TEST



GEN-33/March 2009/35132                                                                    4
      b) PUBLIC INTEREST TEST

      Each of which is described in more detail below.

6.5   Evidential Test There must be sufficient good quality evidence to provide a realistic
      prospect of conviction against each defendant and on each charge, before prosecution
      is authorised.

      This is an objective test and means that a jury or bench of Magistrates, properly
      directed in accordance with the law, is more likely than not to convict each defendant
      on each charge.

6.6   Each prospective prosecution is scrutinised throughout the Line Management chain
      before the papers are sent to Legal Services, in accordance with the policy set out in
      the Preparation for Prosecution section of the PACE/CIPA Procedures. The reason
      for this is that the evidence can be tested by officers not directly involved in the
      preparation of the case.

6.7   The following must be borne in mind by case officers throughout the investigation:

      a)     If the defendant or a witness were formally interviewed under Caution and
             using a tape recorder, was PACE Code E complied with in full?

      b)     Were the proper steps taken at all times to protect the continuity of evidence
             taken and to be able to demonstrate such continuity in documented records.

      c)     Were meticulous notes and records kept at every stage of the investigation and
             can these all be produced/disclosed if required? If not, the requirements of the
             Criminal Procedure and Investigation Act 1996 (as amended by Part 5
             Criminal Justice Act 2003) may not have been complied with.

      d)     If the case depends to any extent upon evidence gained from covert
             surveillance, was the Regulation of Investigatory Powers Act 2000 complied
             with in full, and can the relevant Authority to Conduct Covert Surveillance
             form(s) be produced if necessary?

      e)     Were the terms of the Enforcement Concordat adhered to and can this be
             demonstrated?

      f)     Was there any substantive departure from any of the principles of enforcement
             contained in this document, or from any of the legislation listed which has a
             bearing on enforcement?

      If the answer to any of the above is negative, then this must be made known to line
      management and Legal Services, so that their decisions on whether or not to proceed
      can be properly informed.

6.8   Officers should attempt to obtain as much evidence from as many evidential
      categories as possible throughout the investigation.



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       However, it is important to bear in mind that all unused material is liable for
       disclosure, if it could be construed as damaging to the prosecution case.

       The various evidential categories are listed in the flowchart Appendix 1 to Section
       three of the PACE/CPIA Policy together with the different methods of handling each.

6.9    In considering the evidence, the following questions need to be addressed in deciding
       upon its reliability:

       a)     Might a confession made at taped interview be seen to be unreliable, for
              example, because of a defendant‟s age, intelligence of lack of understanding?

       b)     Is a Witness‟s background likely to prove damaging, for example, a criminal
              record or perhaps dubious motives for testifying?

6.10   If, after balancing all of the above, it is concluded that there is not a realistic prospect
       of conviction, the case should NOT proceed to prosecution.

       One of the alternatives listed in paragraph 6.3, above, may still be used if appropriate.

6.11   The Public Interest Test A number of factors will determine whether or not a
       particular prosecution is in the public interest and a balance in favour or against will
       have to be made between these factors, any or all of which might be present.

6.12   Those factors which will tend to indicate the need for prosecution include the
       following, which may not be an exhaustive list:

       a) number of people affected by the offence

       b) degree to which people are/were affected (seriousness of the offence)

       c) evidence that the offence was committed deliberately or maliciously

       d) evidence that the defendant intimidated or harassed those affected

       e) evidence of previous or on-going offences of a similar type

       f) likelihood of repeated offence which may be deterred by prosecution

       g) defendant was in a position of authority

       h) lack of co-operation on the part of the defendant

       i) offence is widespread, at least in the general area in which it was committed

6.13   Factors which might argue against a protection will include:

       a) Court is likely to impose a very small penalty on conviction

       b) offence appears to have been the result of a genuine misunderstanding or mistake


GEN-33/March 2009/35132                                                                          6
       c) harm done was minor and was the result of a single incident, particularly if it was
       caused by a misjudgement

       d) willingness on the part of the defendant to co-operate and to ensure that no future
       offences of a similar nature are committed

       e) long delay between offence and trial, unless

              i) The offence is serious

              ii) The delay has been caused, at least in part, by the defendant

              iii) The Offence has only recently come to light

              iv) The complexity of the investigation results in unavoidable delays.

       f) defendant is elderly, in poor health or confused (unless there is a real possibility
       that the offence will be repeated).

       g) defendant has, so far as possible, put right the harm caused by the offence

       h) a key witness has refused to testify or to provide a Witness Statement or, if they
       are the only victim, they have strongly indicated opposition to a prosecution

6.14   Supplements The following Supplements are to be found in the next two pages:

              Supplement 1 - Flowchart

              Supplement 2 - Explanatory Notes to Flowchart




GEN-33/March 2009/35132                                                                     7
                                                                                                SUPPLEMENT 1


                                              THE FLOWCHART WILL
                                              APPLY TO EACH OF THE       1
                                              CASE REVIEW STAGES




 CASE OFFICER            SECTION HEAD             UNIT MANAGER          PROSECUTION                  LEGAL
    REVIEW               CONFERENCE                   REVIEW            PANEL REVIEW              CONFERENCE




                                                      APPLY
                                              2     EVIDENTIAL
                                                       TEST
                                4                                                           3
                                                                               IS THE
                          ARE REPAIRS
      NO                                               YES                   EVIDENCE
                           POSSIBLE                                                                       NO
                                                                             FLAWED ?


                    5                              REPAIR AS
                               YES
    ARE THE                                       APPROPRIATE                       IS THE
  FLAWS FATAL                                                                    EVIDENTIAL
 TO THE CASE ?                                                                 TEST SATISFIED
                                         NO



      YES                                                                    NO                 YES




                                       ABANDON                                  APPLY PUBLIC
                                                                                                      7
                                     PROSECUTION                               INTEREST TEST

               For an
         explanantion of the
          boxes annotated                                                        CONSIDER
                w ith                                                           FACTORS IN
                                                                                                      8
                                                                                FAVOUR OF
                                                                               PROSECUTION

                                                                  NO
           see Supplement 2
                                                                                 CONSIDER
                                      CONSIDER                                   FACTORS
                                                                                                      9
                                6    ALTERNATIVE                                  AGAINST
                                       ACTIONS                                 PROSECUTION




                                                                                IS THE PUBLIC
                                                                               INTEREST TEST
                                                                                  SATISFIED ?




                                           TASK
                                                                 PROSECUTE           YES
                                        COMPLETED




GEN-33/March 2009/35132                                                                                        8
                                                                           SUPPLEMENT 2

         EXPLANATORY NOTES ON FLOWCHART AT SUPPLEMENT 1

Those boxes in the Flowchart at Supplement 1 which are annotated with a numbered lozenge
are explained below:

Note 1        The Case Review procedure is explained in full at Appendix 1 to Section 5 of
              the PACE/CPIA Procedure document.

Note 2        See paragraphs 6.5 to 6.10 of main text

Note 3        Flawed evidence will include that which is:

                     a) Incomplete

                     b) Unreliable

                     c) Liable to be ruled as inadmissible

Note 4        Repairs to flawed evidence may be possible. For example, if it is incomplete
              it may be possible to obtain, say, another Witness Statement, more
              photographs, interviews, etc.

              Legal advice should be obtained before proceeding with evidence which might
              be thought unreliable or inadmissible.

Note 5        Evidence which is flawed should not normally be used and if it is crucial to
              the Prosecution case the serious consideration should be given to abandoning
              the prosecution.

              In such cases, legal advice should be sought.

              Flawed evidence which is not going to be used must be disclosed to the
              Prosecutor if it undermines the prosecution or helps the defence case. See
              ?Disclosure Procedures at Section 4 of the PACE/ CPIA Procedure document.

Note 6        Alternatives to prosecution are listed in the main text at paragraph 5.0

Note 7        Criteria for the Public Interest Test are listed in the main text at paragraphs
              6.11 to 6.13 to 6.12 of main text

Note 8        See paragraph 6.12 of main text

Note 9        See paragraph 6.13 of main text




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7.0   Simple Cautions

7.1   Where it is felt that prosecution may not be appropriate, the use of the Simple Caution
      should be considered. In all such cases, the Home Office Guidance on the use of
      Simple Cautions is to be closely followed, where it applies to legislation enforced by
      Environmental Health. This is reproduced in full at Supplement 1 to this Section.

7.2   Typically, the reason for choosing this option will be that the case does not fully meet
      the PUBLIC INTEREST TEST described in paragraphs 6.11 to 6.13, above. It may
      be, for example, that the offence did not result in real harm to any person, or that the
      person responsible co-operated fully in limiting the effects of the offence.

7.3   A Simple Caution is never to be used simply because the evidence in a case is not
      robust enough to give a reasonable prospect of success in prosecution. Indeed, if a
      Simple Caution is offered and refused, the most likely alternative enforcement action
      would be prosecution, so the evidence must always be sufficient before a Simple
      Caution is considered.

7.4   A flowchart setting out the steps to be followed is at Supplement 2 to this Section and
      further explanatory Notes, based on the flowchart, are at Supplement 3.

7.5   Other factors governing the use of a Simple Caution include:

      a)     Line Management are to be informed before a Formal Caution is offered.

      b)      No more than one Simple Caution is to be issued to the same business or
             person for a similar offence within the expiry period. If a further, similar
             offence is committed before the expiry of the Simple Caution, then
             prosecution should be taken in all but the most exceptional circumstances.

      c)     Unless the circumstances are wholly exceptional, details of any outstanding
             Simple Caution will be placed before the Court in any prosecution taken
             within the expiry date of the Simple Caution.

      d)     The format given at Supplement 4 to this Section is to be used in all cases for
             Simple Cautions, adapted as may be necessary to take account of the
             legislation used and the circumstances of the case.

      e)     The suspect must be given the opportunity, if he so wishes, of viewing all of
             the evidence gathered in the case, including any which may weaken or
             undermine the prosecution. This is to enable him, and/or his legal advisor, to
             assess the evidence, so that the decision whether to accept the Caution or not
             can be an informed one.

      f)     If accepted, the Caution is to be fully recorded and a copy of the
             documentation held with the Service Request/Premises file and a separate
             Register of Simple Cautions. In the case of business operators, a copy must
             also be sent to the Office Of Fair Trading.




GEN-33/March 2009/35132                                                                    10
                                                                              SUPPLEMENT 1
                                                                                (to Paragraph 7)
HOME OFFICE CIRCULAR 30/2005
THE CAUTIONING OF OFFENDERS

SIMPLE CAUTIONING OF ADULT OFFENDERS: KEY POINTS

This highlights the key points of the process for quick reference. It should be read in
conjunction with the full circular, which provides additional important detail.

More detailed guidance on the use of the simple caution is given in Home Office Circular
30/2005 www.homeoffice.gov.uk.

1.       Criteria for a Simple Caution

            Is there sufficient evidence of the suspect‟s guilt to meet the Threshold Test (as
             outlined in the Director‟s Guidance on statutory charging)? If the offence is
             indictable only (and the available evidence meets the Threshold Test) then the
             disposal option may only be considered by a Crown Prosecutor.
            Has the suspect made a clear and reliable admission of the offence (either verbally
             or in writing)?
            Is it in the public interest to use a Simple Caution as the appropriate means of
             disposal?
            Is the suspect 18 years or over?

If all of the above requirements are met, the officer must consider whether the seriousness of
the offence makes it appropriate by a Simple Caution. The Gravity Factors Matrix is
available to assist officers in considering aggravating and mitigating factors when assessing
seriousness.

2        The Victim

The views of the victim must be considered when deciding whether a Simple Caution is the
most appropriate course of action. However, it must be made clear to the victim that the
decision rests with the police and CPS.

3.       Further Considerations

Does the suspect have any other cautions for similar offences?

               National and local records must be checked. If „yes‟ then a Simple Caution
                should not normally be considered. Unless a two year period has passed with
                no further convictions or cautions, or unless the offence is trivial or unrelated.
                If the suspect has previously received a Reprimand or Final Warning, a period
                of two years should also be allowed to elapse before administering a Simple
                Caution.



GEN-33/March 2009/35132                                                                        11
Has the suspect been made aware of the significance of a Simple Cautions?

            If a simple Caution is being considered, then the full implications and
             consequences must be explained to the suspect. Under no circumstances should
             suspects be pressed to admit offences in order to receive a Simple Caution as an
             alternative to being charged. Be aware of additional consequences for those
             receiving a Simple Cautions for sexual offences or who are employed in
             notifiable occupations.

Has the suspect given informed consent to being cautioned?

            If they do not consent, then police may choose to continue with a prosecution.
             The suspect should not be pressed to make an instant decision on whether to
             accept the simple Caution. They should be allowed to consider the matter, and
             if need be, take independent advice.

4.     Approval

If the offence is suitable for disposal by means of a Simple Caution, then it should be referred
for approval to an officer who is unrelated to the investigation of the offence and is of a lease
Sergeant rank (they or may not be a Custody Officer).

Once the approving officer is satisfied that the requirements for administering a Simple
Caution have been met, they will need to consider: -

            If it is appropriate to the offence and offender; and
            If it is in the public interest to deal with the offence in this way.

When the approving officer has reached a decision in favour of issuing s Simple Caution,
they should sign the custody record or other suitable documentation to say that they have
approved this as the appropriate method of disposal.

5.     Administering the simple Caution

After the Simple Caution has been approved, it should be administered by someone who is
suitably trained for this purpose and to whom the relevant authority has been delegated. If a
suitable person is not immediately available an officer of Inspector rank or above may
determine an appropriate person to deliver the simple Caution.

Once the Simple Caution has been administered, the offender should sign a form accepting
the terms of the caution and should be given a copy of the acceptance pro-forma to take
away.

Ensure the details of the Simple Caution are accurately recorded on PNC (if and ministered
for a recordable offence) and any relevant local records.




GEN-33/March 2009/35132                                                                       12
                                                                          SUPPLEMENT 2
                                                                           (To paragraph 7)


                                  PREPARE CASE AS
                                  FOR PROSECUTION         1




                                       DISCUSS
                                    ENFORCEMENT
                                  OPTIONS WITH LINE
                                                          2
                                     MANAGEMENT




                                   DECIDE TO OFFER
           NO                                                              YES
                                  FORMAL CAUTION ?




                                                                  CHECK REGISTER OF
                                                              3    FORMAL CAUTIONS
                              5
                                     IS THE OFFER
                                      ACCEPTED ?


                         NO
                                         YES
                     6                                            4
                                                      7
                                                                      OFFER FORMAL
        CONSIDER
                                  ARRANGE MEETING                      CAUTION TO
       ALTERNATIVE
                                                                       SUSPECT, IN
      ENFORCEMENT
                                                                         WRITING


                                  CAUTION ACCEPTED
                         NO
                                    AND SIGNED ?
                                                          8



                                         YES




                                  DISTRIBUTE SIGNED
                                       CAUTIONS           9




                                  TASK COMPLETED




GEN-33/March 2009/35132                                                                13
                                                                            SUPPLEMENT 3
                                                                               (To paragraph 7)


                      EXPLANATORY NOTES TO SUPPLEMENT 2


The numbering of the Notes below matches that of the diamond lozenges in Supplement 2.


NOTE 1       Where an offence has been committed or is suspected, the case should be
             prepared with prosecution in mind. This will serve the following purposes:
              a) it will keep enforcement options open
              b) it will help to ensure the Evidential and Public Interest Tests are met
              c) it will save time if the offer of a Caution is refused and a Prosecution
                 becomes necessary.


NOTE 2       The decision on which enforcement route to follow will be taken by line
             management, following close consultation with the case officer.


NOTE 3       When the decision has been made in principle to offer a Simple Caution, it will
             be necessary to ensure, by checking the premises records and Register of
             Simple Cautions that there are no outstanding Cautions for similar offences.
             If research shows existing „unspent‟ Cautions for similar offences, further
             Cautions should not be given. (See paragraph 7.5, above.)


NOTE 4       The offer of the Caution should be made in writing and a copy held on file.
             The offer must be accompanied by sufficient information for the suspect, or
             his legal advisor, to make a considered judgement as to whether accepting a
             Caution is in his best interests.
             The purely voluntary nature of the Caution is to be made clear, as are the
             implications of agreeing to one. It must also be pointed out that the suspect
             may be legally represented at every stage, if he so wishes.


NOTE 5       The offer should include a time limit for acceptance and, if this passes without
             response, one reminder should be sent. The acceptance of the offer is not, in
             itself, a Caution.


NOTE 6       If the offer of a Simple Caution is refused, or if there is initial acceptance but a
             refusal to sign when the time comes, alternative enforcement measures should
             be considered, including prosecution.


NOTE 7       A meeting should be arranged for the Simple Caution to be signed and this
             should take place in the Council Offices. Legal Services will issue the Caution



GEN-33/March 2009/35132                                                                       14
            letter and this together with the certificate of caution be handed to the
            offender.
            The suspect should be asked whether he wishes his legal representative to be
            present, and a member of NBBC Legal Services should attend for the Council,
            in any case.


NOTE 8      Whether legally represented or not, the suspect must be allowed reasonable
            time to read and understand the format of the Caution thoroughly. Any
            relevant questions should be answered in full before a signature is obtained.


NOTE 9      If the Caution is accepted and a signature provided, copies are immediately to
            be given to the suspect and to his legal advisor, if any.
            Legal Services will retain a copy and will be responsible for registering the
            Formal Caution with the Office of Fair Trade, if applicable.
            Two further copies will be retained by the case officer, one for the premises or
            Service Request file, and the final one to the Register of Simple Cautions
            which will be held centrally for all Environmental Health, by the Admin
            Assistants.




GEN-33/March 2009/35132                                                                  15
                                                                                SUPPLEMENT 4
                                                               CORPORATE SERVICES DIRECTORATE
                                                     PHILIP RICHARDSON MA LLB (HONS) BARRISTER
                                                               AD - LEGAL & DEMOCRATIC SERVICES
                                                         Town Hall, Nuneaton, Warwickshire, CV11 5AA

                                                                                 Telephone: 02476 376376
                                                                              Direct Dialling: 02476 376223
Date:                                                                            Starfax No: 0870 608 9457
                                                                                       DX Nuneaton 16458

                                                   e-mail:           @nuneatonandbedworth.gov.uk

                                                   Our Ref: /
                                                   Your Ref:
                                                   Please ask for:




Dear ,

Nuneaton and Bedworth Borough Council v Yourself

I refer to the investigation and in particular the interview under caution on

In light of investigations by the Council I am satisfied that an offence pursuant to Section
111A and 111A(1A) of the Social Security Administration Act 1992 as inserted by Section 13
of Social Security Administration (Fraud) Act 1997, have been committed in that on
you failed to give prompt notification of changes in circumstances to the described person
namely Nuneaton and Bedworth Borough Council in that you failed to notify that your partner
had moved in on                             made a false statement that

I am further satisfied that there is sufficient evidence to give a realistic prospect of conviction.
However, with your agreement I intend to deal with this matter by a simple caution as set out
in Home Office circular 30/2005. If you accept this simple caution by signing the admission
below no further proceedings will be taken against you in respect of this matter.

You are advised that this simple caution will be recorded and maintained on file. Should any
further offences of a similar nature be committed in the future, this caution will be taken into
account when the Council considers what action is merited at that time. Furthermore should
proceedings be successfully concluded in respect of any future offence this caution will be
cited to the Court. The Court may then take this caution into consideration when deciding
which penalty to award in respect of those future offences.

Yours sincerely                    I, make a formal admission of guilt in respect of an offence
                                   under Sections 111A and 111A(1A) of the Social Security
                                   Administration Act 1992 and Section 13 of Social Security
                                   Administration (Fraud) Act 1997 and understand that this
                                   formal caution may be cited in any further proceedings.

                                   Signed ………………………………………………………

for Assistant Director - Legal &   Date …………………………………………………………
Democratic Services



GEN-33/March 2009/35132                                                                          16
                                                               CORPORATE SERVICES DIRECTORATE
                                                     PHILIP RICHARDSON MA LLB (HONS) BARRISTER
                                                               AD - LEGAL & DEMOCRATIC SERVICES
                                                         Town Hall, Nuneaton, Warwickshire, CV11 5AA

                                                                                Telephone: 02476 376376
                                                                                  Direct Dialling: 02476 37
Date:                                                                           Starfax No: 0870 608 9457
                                                                                      DX Nuneaton 16458

                                                   e-mail:           @nuneatonandbedworth.gov.uk

                                                   Our Ref:
                                                   Your Ref:
                                                   Please ask for:




Dear ,

Nuneaton and Bedworth Borough Council v Yourself

I refer to the investigation and in particular the interview under caution on

In light of investigations by the Council I am satisfied that an offence pursuant to Section 112
and 112(1A) of the Social Security Administration Act 1992 as inserted by Section 13 of
Social Security Administration (Fraud) Act 1997,          have been committed in that on
you failed to give prompt notification of changes in circumstances to the described person
namely Nuneaton and Bedworth Borough Council in that you failed to notify that your partner
had moved in on                               made a false statement that

I am further satisfied that there is sufficient evidence to give a realistic prospect of conviction.
However, with your agreement I intend to deal with this matter by simple caution as set out
in Home Office circular 30/2005. If you accept this simple caution by signing the admission
below no further proceedings will be taken against you in respect of this matter.

You are advised that this simple caution will be recorded and maintained on file. Should any
further offences of a similar nature be committed in the future, this caution will be taken into
account when the Council considers what action is merited at that time. Furthermore should
proceedings be successfully concluded in respect of any future offence this caution will be
cited to the Court. The Court may then take this caution into consideration when deciding
which penalty to award in respect of those future offences.

Yours sincerely                    I, make a formal admission of guilt in respect of an offence
                                   under Sections 112 and 112(1A) of the Social Security
                                   Administration Act 1992 and Section 13 of Social Security
                                   Administration (Fraud) Act 1997 and understand that this
                                   formal caution may be cited in any further proceedings.

                                   Signed ………………………………………………………

for Assistant Director - Legal & Date …………………………………………………………
Democratic Services




GEN-33/March 2009/35132                                                                          17
                                                                                                                        APPENDIX 1
LEGISLATION Etc WHICH MAY BE RELEVANT TO ENFORCEMENT PROCEDURES
TITLE                      PRINCIPAL PROVISIONS                                          REMARKS
Police   and     Criminal Application to non-Police enforcement agencies. Gathering of Detailed Procedures within this document as
Evidence Act 1984         evidence. Protection of evidence. Evidence „Audit Trails‟. „Searches and Warrants‟, „Tape Recorded
                          Code B Searches. Formal Interviewing. Formal Caution         Interviews‟, „Continuity of Evidence‟.
Criminal Procedure and Primary Prosecution Disclosure. Duties of Investigating           1. See „Disclosure of Unused Material‟ and
Investigations Act 1996 Officer, Officer in Charge, Disclosure Officer and Prosecutor.   „Preparation for Prosecution‟.
                        Material which undermines the prosecution case, voluntary
                        defence disclosure, secondary disclosure. Recording and          2. Further reading available in Course Notes
                        retention of material.                                           „Criminal Investigation and Prosecutions‟
Environmental Information 1. Basic presumption towards disclosure. 2. Response to be Further information available from BGS
Regs 2005                 ASAP but within 20 working days. 3. Reasonable charges can document      „Guidance      on Access to
                          be raised. 4. Discretion to withhold but reasons in writing. Environmental Information‟
Data Protection Act 1998   1. Act applies to computerised AND manual filing systems. 2. see www.homeoffice.gov.uk/ccpd/dpfacts.htm
                           Information must be lawfully processed, kept for limited
                           purposes and periods, securely held, relevant and not
                           excessive
Human Rights Act 1998      1. New interpretation of all legislation in light of the see www.homeoffice.gov.uk/hract
                           provisions of the Convention. 2. Right to peaceful enjoyment
                           of possessions. 3. Rules concerning deprivation of
                           possessions. 4. Trial within a reasonable time.
Local Government           Local Authorities can do anything to achieve the promotion See www.legislation.hmso.gov.uk/acts
Act 2000                   or improvement of the Economic, Social or environmental
                           well-being of their area.
                                                                                                                        Continued/....


GEN-33/March 2009/35132                                                                                                              18
TITLE                       PRINCIPAL PROVISIONS                                          REMARKS
Freedom of Information 1. Facilitate disclosure by setting good administrative practice. See also Draft S of S Code of Practice of 3 May
Act 2000               2. Set standards for providing advice and encourage effective 2001
                       complaint concerning decisions made. 3. Protect the interests
                       of third parties.
Regulation of Investigatory 1. Certain tasks, such as noise monitoring, may be classed as See www.legislation.hmso.gov.uk/acts/acts
Powers Act 2000             „directed surveillance‟ and, as such, are permissible for the See also NBBC guidance Procedure Document
                            protection of public health. 2. Directed surveillance must be Surveillance
                            separately authorised for each occasion. 3. Only specified
                            officers may authorise directed surveillance.
Race           Relations Discrimination by any public Authority in carrying out any of See www.legislation.hmso.gov.uk/acts/acts
(Amendment) Act 2000     its functions is unlawful.
Regulatory   Reform   Act A Minister can issue a code of practice relating to See www.legislation.hmso.gov.uk/acts/acts
2001                      enforcement. If any officer bound by such a code fails to
                          follow it, this fact may be taken into account by a Court or
                          Tribunal.
 The Central and Local Not legislation but we have adopted its provisions, including The Concordat has now been adopted across the
Government Concordant the setting of clear standards, openness, helpfulness, Council.
on Good Enforcement    complaints service, proportionality and consistency.




GEN-33/March 2009/35132                                                                                                               19
      COVERT SURVEILLANCE




GEN-33/March 2009/35132     20
       Covert Surveillance is regulated by The Regulation of Investigatory Powers Act 2000.

       The Council has produced detailed Guidance and Procedure Documents on Directed
       Covert Surveillance Appendix and Human Intelligence Source Appendix .Officers
       should be familiar with the same.

1.1    Officers should be aware that the legislation is highly prescriptive and that there is
       very little scope for departure from the main principles.

1.2    As with PACE and other enforcement Procedures, the likely price of failing to follow
       the stipulated actions closely is that cases will be lost in Court, with costs awarded
       against the Council.

       Even more importantly, surveillance which is not properly authorised is unlawful.

All forms can be downloaded from the Home Office website details of which are given in the
above procedure documents.




GEN-33/March 2009/35132                                                                    21
             SEARCHES AND WARRANTS




INDEX

       1.0   Introduction and background

       2.0   Service of P.A.C.E. Code B Notices

       3.0   Searches under Warrant


       APPENDICES

                            APPENDIX 1            Procedure for obtaining/executing a Warrant

                            APPENDIX 2            Form for the laying of „Information‟




GEN-33/March 2009/35132                                                                   22
1.0   Introduction

1.1   This Section deals with the organisation and conduct of „searches‟, including those
      made under Warrant.

1.2   For the purposes of this legislation, a search may be described as an entry onto
      premises or land by an Officer in order to carry out an inspection, whether by prior
      arrangement, routine pro-active work, or to make investigations in response to a
      complaint.

2.0   Service of PACE Code B Notices

2.1   It is NOT necessary to serve a PACE Code B Notice when acting within powers
      granted by legislation. This is the advice from LACOTS, LGA and an independent
      legal source

3.0   Searches under Warrant

3.1   Where it is necessary to carry out a search under Warrant, the procedure to be
      followed is at Appendices 1 to 4.

3.2    In summary, the main points are:

      a) Information must be laid, normally under Oath, before a Magistrate.

      b) The completed Information (Appendix 2) and Warrant (Appendix 3) will usually
      be examined for legality, by the Clerk to the Justices.

      c) The Court will retain the Information, so a copy must be taken before the
      Application is made

      d) The original of the Warrant is to be held as controlled evidence (see the Procedure
      for Evidence Continuity) and an Authorised Copy (Appendix 4) is to be given to a
      responsible person at the site, before the search is commenced. A Notebook entry to
      that effect is to be made.

      e) It will be the normal practice for a Warrant to be executed only with Police
      support. Details of the arrangements required are in Appendix 1.




GEN-33/March 2009/35132                                                                  23
                                                                                        APPENDIX 1

                       APPLICATION FOR A WARRANT OF ENTRY Etc

The type of Warrant required, and the uses for which it is intended will be different in each case.

Powers of a Warrant will depend upon which legislation is used and great care must therefore be
taken to ensure that the wording used is appropriate to the legislation.

A Warrant can be used once only and the lifetime of a Warrant before it is used may vary with
circumstances.

It is not practical to provide detailed guidance on the wording of every Warrant which may be
required, that will be a matter for individual officers when the time comes. However, the method
of application to the Court is the same in each case, and is detailed below.

1.      When it is decided that a Warrant is necessary, the most appropriate legislation must be
        used, in which the powers (and the limitations) of the Warrant will be detailed. For the
        purposes of this Procedure, the examples given of the documentation required are for a
        works in default equipment seizure under EPA 1990.

        Instructions should be sent to Legal. Legal will require

2.      Note that, in this case, the Warrant must specify firstly entry and secondly, seizure of
        property.

3.      To arrange a Hearing, the Court should be contacted by telephone on 01926-429133
        during normal working hours.

        Unless the matter is urgent, arrangements should be made for the hearing to take place the
        following working day. This is because much time can be saved if the Application can be
        heard before the main business of the Court commences.

        „Same day‟ hearings can also be arranged if required, but a lot of time is taken up in
        „slotting in‟ the hearings between other cases.

        Application may be heard either in open Court before a full bench, in the retiring room
        with between one and three Magistrates or, in urgent cases, at a Magistrate‟s home.

4.      The following documents will be needed to process a Warrant Application:

        a)      Information - An example of a completed Information is attached at Appendix 2.
                THIS IS THE FORM WHICH MUST BE USED, amended as necessary to take
                account of differences in legislation.

        b)      A partially completed Warrant - A completed example is at Appendix 3.

5.      These documents should be prepared as fully as possible before the hearing, leaving only the
        Magistrate‟s name and signature to be added.

        The „Information‟ is retained by the Court so a photocopy for file MUST be made prior to the
        hearing.




GEN-33/March 2009/35132                                                                               24
6.    Obtaining an Entry Warrant involves the following steps:

      a)      Information is laid before a Magistrate/Magistrates.

      b)      It is usual practice for the Clerk of the Court to examine the information for legality
              before it is presented to the Magistrate(s).

      During this process, a copy of the relevant legislation is useful so that each party has access to
      the information simultaneously.

      c)      When Information is laid, the officer will be required to give evidence under Oath or
              Affirmation, indicating the reasons for which entry and the exercise of any other
              powers are necessary and must be prepared to answer searching questions before a
              Warrant is granted. The granting of a Warrant is in no sense a mere formality.

7.    Having obtained the Warrant, an Authorised Copy must be made by photocopying the
      original on to prepared text as shown in attached example. It is the Authorised Copy only
      which must be handed to the person responsible at the object premises. A completed example
      is at Annex C to this Appendix 4.

      The original will not be taken on site, but will be held under the secure conditions as noted in
      the Procedures for Evidence Continuity.

8.    It will be normal practice to execute a Warrant only with Police support but this will be a
      matter for decision by the appropriate level of line management in individual cases.

      If support is required, arrangements for Police presence should be made by telephone for a
      time which is mutually convenient. The telephone number is which is the main switchboard.

      Callers should ask for           Police Station and state their business as ‘Police presence
      requested in support of execution of a Warrant’.

      Where possible, notice should be given for action the following day as this will enable the
      Police to programme the task in and allocate officers. A Log number will be given which
      should be quoted in a final telephone call for confirmation of the arrangements.

      When the arrangements are confirmed (as close to the time of execution as possible), the Lead
      officer should give the Police the number of the mobile telephone which is to be used.

      This telephone should be switched on half an hour before proceedings commence and is to
      remain on throughout.




GEN-33/March 2009/35132                                                                              25
                                                                   APPENDIX 2

                    WARWICKSHIRE MAGISTRATES COURT


THE INFORMATION of NUNEATON AND BEDWORTH BOROUGH COUNCIL of

Town Hall, Coton Road, Nuneaton, CV11 5AA WHO STATES that:



1.   On or about the                ,          of                   did, without
     reasonable excuse contravene a noise abatement notice by permitting
     amplified music to be played at the premises of .


     Contrary to section 80 (4) of the Environmental Protection Act 1990.


                                                       ________________________

                                                                  Philip Richardson
                                                             Head of Legal Services


TO THE ABOVE NAMED DEFENDANT:                                of.


The above information having been this day laid before me YOU ARE THEREFORE
HEREBY SUMMONED to appear before the MAGISTRATES’ COURT sitting at the
Criminal Justice Centre, Vicarage Street, Nuneaton, on             at       to
answer the said information.

Dated the                  day of                   2009



                                                    __________________________
                                             Designated Officer/Justice of the Peace
                                             for the Warwickshire Commission Area




GEN-33/March 2009/35132                                                            26
 TAPE RECORDED INTERVIEWS




GEN-33/March 2009/35132   27
INDEX

1.0   Introduction

2.0   Tapes

      2.1     Tape stores

      2.1.1   New stores and tape logs
      2.1.2   Master tape store log
      2.1.3   Working copy tape store and log

      2.2     Tape types, (master, working, second copy).

      2.3     Supply of tapes to defence.

      2.4     Unrepresented Interviewees.

      2.5     Storage period of tapes.

      2.6     Disposal of tapes.

      2.7     Breaking seal on master tape.

3.0   Equipment

      3.1     Tape Recorder.

      3.2     Transcriber.

      3.3     Portable Radio-cassette player.

      3.4     Audio Cassette tapes.

4.0   Points to Remember when Interviewing

      4.1     The tape recorder is blind.

      4.2     The tape recorder has good hearing.

      4.3     Speak carefully.

      4.4     Speak normally.

      4.5     Oppression and Inducement.

      4.6     Presence of defence solicitors.



GEN-33/March 2009/35132                                     28
      4.7    Interpreters.

      4.8    The Deaf.

5.0   Conduct the Interview

6.0   Record and Transcript of Taped Interview

      6.1    General requirements.

      6.2    Preparation of record.

             (a)      Purpose of the record.

             (b)      What is the record of interview?

             (c)      Format of the record.

                      (i)      Avoid use of inconclusive statements.

                      (ii)     Retraction of earlier admission.

                      (iii)    Timing.

                      (iv)     how much Verbatim speech.

                      (v)      Identification of participants.

                      (vi)     If the interviewee maintains silence.

                      (vii)    Written Statements under caution.

                      (viii)   Sensitive, prejudicial and inadmissible evidence.

                      (ix)     Acceptance of the record.

6.3   Transcription

7.0   Use of Tapes, Transcripts and Records

      7.1    Disclosure and Amendment.

      7.2    Case preparation/officer statements.

      7.3    At Court.




GEN-33/March 2009/35132                                                            29
APPENDICES

      APPENDIX 1 - Tape recorded interviews - notes for guidance

      APPENDIX 2 - Tape Recorded Interviews – Check List

      APPENDIX 3 - At the beginning of the interview.

      APPENDIX 4 - At the end of the interview.

      APPENDIX 5 - Notice to person whose interview has been tape recorded.

      APPENDIX 6 - Record of the Tape Recorded Interview.

      APPENDIX 7 - Request for copy of tape recorded interview.

      APPENDIX 8 - Issue of tapes.

      APPENDIX 9 - Privacy sign for interview room door.

      APPENDIX 10 - Tape Log

      APPENDIX 11 - Master Tape Log

      APPENDIX 12 - Working Copy Tape Log




GEN-33/March 2009/35132                                                       30
1.    INTRODUCTION

      The tape-recording of interviews is provided for in Section 60 of the Police and
      Criminal Evidence Act 1984. A Code of Practice (Code E) governs the procedures to
      be adopted.

      The code of practice has the same effect in law as other codes issued under the act and
      any breach of its provisions by an officer may mean a court may exclude as
      inadmissible any evidence obtained in breach of the conditions.

      The purpose of tape-recording procedures is to provide an accurate and reliable
      account of interviews. This will provide an effective safeguard for the rights of
      individuals and should also reduce challenges to the admissibility of prosecution
      evidence based on these interviews.

      The Code of Practice requires that any interview at a Police Station where
      tape-recording facilities are available must be tape-recorded.

      The whole of each interview should be tape-recorded including the taking and reading
      back of statements, the reading out of statements and the playing of the tape-recording
      of another person if necessary.

      All separate interviews should be conducted using a fresh set of tapes, under no
      circumstances will any attempt be made to add to the content of a recording of a
      previous interview. Where a second or subsequent interview is tape-recorded, the
      officer should make a reference to the previously recorded interview at an early stage.

2.0   TAPES

2.1   Tape Stores

      The three tape stores are the responsibility of the Tape Librarian. Access to each is
      restricted to the Tape Librarian!

2.1.1 New Tape Store and Tape Logs

      The store will contain:

      - Sufficient unused tapes for day to day use; - (new tapes to be ordered by Tape
      Librarian).

      -   The office logs of tape-recorded interviews;

      -   All stationery requirements for tape-recorded interviews.

2.1.2 Master Tape Store and Log

      -   This store is to be used solely for the storage of master tapes.




GEN-33/March 2009/35132                                                                   31
      -   tapes will be filed in date order and recorded in the „tape log‟ held by the
                librarian. (See Appendix 10)

      -   Any removal and return of master tape from the store will be recorded on
          the „master tape log‟. (See Appendix 11)

2.1.3 Working Copy Tape Store and Log

      This store contains working copy tapes filed in date order and recorded in the „tape
      log‟ held by the librarian. (See Appendix 10)

      -   Any removal and return of the working copy from the store will be recorded on the
             „working tape log‟. (See Appendix 12)

2.2   TAPE TYPES

      Master Tape

      The importance of this tape cannot be stressed too greatly; it is the definitive record of
      the interview and a court exhibit. It will only be moved from the main tape store on
      the authority of the Lead/Investigating Officer.

      It is to be used only in court proceedings and will be returned to the store immediately
      afterwards.

      Any movement will be recorded in the master tape log (held by Tape Librarian).

      Working Copy Tape

      The second of the two tapes or sets of tapes will be labelled, but not sealed. It may be
      used for the preparation of second copy tapes.

      The working copy tape will not be removed from the office precincts and will be
      treated at the same security level as the master tape.

      Second Copy Tape

      These tapes may be prepared by the Tape Librarian for issue to:

         Interviewing officers for the purposes of completing their record of interview.

         Defence solicitors. There will be no charge for this tape.

         Other officers with a legitimate interest, for instance Prosecutor.

      NB: The making of unnecessary copies must be avoided. Any copies made are to be
      recorded on the appropriate Log.




GEN-33/March 2009/35132                                                                      32
2.3   SUPPLY OF TAPES TO DEFENCE

      Copies of WORKING TAPES will only be released to the defendant or his solicitor
      upon receipt of a written request. Preparation of copy tapes will ONLY be carried out
      by the Tape Librarian and supplied through legal section. Except where a three copy
      PACE tape recorder is used and the third tape will be provided at the time of the
      interview to the person being interviewed.

      Requests for such copies must be made in writing to the Tape Librarian, in accordance
      with the instructions on the `Notice to Person whose Interview has been Tape
      Recorded‟ - form Tape 2 at Appendix 5.Except where a three copy PACE tape
      recorder is used and the third tape will be provided at the time of the interview to the
      person being interviewed.

      Form Tape 6 (Appendix 7) is to be completed by Interviewing Officer to Tape
      Librarian.

2.4   UNREPRESENTED INTERVIEWEES

      Interviewees have the same right of access to a tape of his or her interview as the
      solicitor of a represented person. If the interviewee lives locally, he or she will be
      allowed the facility of listening to his/her tape at the office. Otherwise, or if it is
      impractical for him/her to attend, the interviewee will be sent a second copy tape on
      receipt of a request. Except where a three copy PACE tape recorder is used and the
      third tape will be provided at the time of the interview to the person being interviewed.

2.5   STORAGE PERIOD OF TAPES

      (a)    Master Tapes These tapes will be routinely stored for a period that complies
             with the statute of Limitations or three years whichever is the greater.

      (b)    Working Tapes and Copy Tapes These tapes will be routinely kept until the
             Tape Librarian receives written notification from the officer in the case, to
             dispose of the tape. This must not be until the conclusion of the case and all
             possible Appeals

2.6   DISPOSAL OF TAPES

      Used MASTER TAPES and working tapes which have reached the end of their
      storage period will be destroyed.

2.7   BREAKING THE MASTER TAPE SEAL

      (a)    Other than at Court An officer has no authority to break the seal on a Master
             Tape which is required for criminal proceedings.           If an exceptional
             circumstances (e.g. breaking of working copy) it is necessary to gain access to
             a master tape, other than during court proceedings, the defendant or his legal
             adviser must be informed and be given a reasonable opportunity to be present.




GEN-33/March 2009/35132                                                                     33
               If the defendant or his legal adviser is present he must be invited to re-seal and
               sign the master tape.
               A note will be made on both the original and new seals cross-referencing them
               and the officer will make a pocket-book entry explaining what has happened.

               Both the old empty library case and new sealed tape will be returned to the
               Tape Store and both will be stored securely with appropriate cross-referencing
               to enable them to be made available at any later date.

      (b)      At Court Where it has been necessary to break the seal on a master tape during
               court proceedings, it is anticipated that the tape will remain in the possession
               of the court until those proceedings end, however local court procedures may
               vary.

               Whenever an opened master tape is returned to the custody of an officer in
               order to retain its integrity the tape will be re-sealed in a new library case, in
               the presence of a representative of the defence. A new Master Tape Seal will
               be used.

      Note: The exhibiting officer will be responsible for taking sufficient tape library
            cases and tape seals to the court. These will be available from the Tape
            Librarian.

3.0   EQUIPMENT

3.1   Tape Recorder

      -     The tape recorder makes recordings simultaneously on three cassettes.

      -     The machine can only record, it does not re-play or re-wind.

      -     For operation - see manual.

3.2   Transcriber

      -     For listening to a tape recorded interview.

      -     Speed and volume control.

      -     Foot pedal for play/rewind functions.

      -     Headphones available.

3.3   Portable Radio-cassette Player

      -      With twin tape deck for copying of tapes.

3.4   Audio Cassette Tapes

      -     To be obtained from Tape Librarian


GEN-33/March 2009/35132                                                                       34
      -     Only one side is used for recording purposes.

      -     To be unwrapped during interview only.

4.0   POINTS TO REMEMBER WHEN INTERVIEWING

4.1   The Tape Recorder is Blind

      During any interview bear in mind that the recorder can only hear what is going on. If
      you show the suspect any object describe it, e.g. "I am now showing ........... a knife.
      This knife has a wooden handle and a twelve inch blade. It is in a plastic bag bearing
      a label marked `ABC/1'".

      If any person enters or leaves say so. Remember you have the sound of a door
      opening to explain. Remember to identify the person entering or leaving.

      EXPLAIN ALL EXTRANEOUS NOISES (You may exclude natural bodily noises)

4.2   The Tape Recorder has Good Hearing

      However, it will not easily distinguish the voices of several people talking at once.
      When you ask a question, WAIT FOR AN ANSWER. Do not speak over someone
      else talking. Do not speak if you are unwrapping an exhibit - the sound of paper
      rustling can be deafening.

4.3   Speak Carefully

      As well as speaking clearly be careful what you say about any person. The tape may
      be played in open court.

4.4   Speak Normally

      After the initial introduction, which is a formal procedure, conduct the interview as
      you would normally.

4.5   OPPRESSION AND INDUCEMENT

      (a)      Statements or confessions must be RELIABLE if they are to be admissible in
               evidence.
               They may become unreliable if it can be shown that any oppressive conduct or
               inducement was utilised to obtain them

      (b)      Examples of Oppression

               If the officer does something that is threatening, whether directly or indirectly,
               then it will most likely be held to be oppressive. Drumming fingers on the
               table persistently or stamping the feet (it will be heard on tape) may also be
               oppressive.



GEN-33/March 2009/35132                                                                       35
                   If the officers behaviour is perceived as a threat to the suspect this may
                   jeopardise the prosecution case.

      (c)          Examples of Inducement

                   If the officer says anything that makes the interviewee believe that by
                   confessing he/she will get more favourable treatment then basically the officer
                   is inducing that person to confess.

                   If the officer says anything that sounds like a promise about the outcome, then
                   it may be considered an inducement.

                   If the confession is made as a result of an inducement it will be unreliable and
                   therefore inadmissible.

                   In the event of a question directly asked by the suspect to the officer such as,
                   "What will happen if I say nothing" or "What will happen if I answer the
                   questions?" then these can be answered by the officer provided that action is
                   itself proper and warranted.

4.6   Presence of Defence Solicitors

      The presence of a Solicitor at a tape-recorded interview makes no difference
      whatsoever to the conduct of the interview. Confidentiality will not be breached as
      the interviewee will have had the opportunity to consult the solicitor beforehand. A
      solicitor may only be required to leave the interview if his/her conduct is such that the
      officer is unable properly to put questions to the interviewee.

      See Code (C), Codes of Practice paragraphs 6.10 and 6.11 for more detail.

4.7   Interpreters

      (a) Where the interview is conducted through an interpreter the following points are of
          importance:

            (i)       The tape recorder will make an accurate record of all conversation in both
                      languages, including `explanatory‟ conversation between interpreter and
                      interviewee.

            (ii)      Both the interpreter and the interviewing officer will have to make a
                      statement dealing with the fact that the interview was held, giving date,
                      time, place, etc. identifying the tape, and stating that the interview was
                      conducted through the named interpreter.

            (iii)     The interpreter will also have to deal in his/her statement with the question
                      of explaining the procedures and also with the question of service of the
                      notice to interviewee. (Form Tape 2 at Appendix 5).

                      He/she will have to state that he/she translated this form to the interviewee.



GEN-33/March 2009/35132                                                                          36
             The interpreter should be present when the interviewee is invited to sign the
             master tape seal and translate what is written and said for the benefit of the
             interviewee. The interpreter‟s statement should include the account of the
             above procedure.

      (iv)   If following an interview conducted through an interpreter, the interviewee
             indicates an unwillingness to sign the sealing label because he/she does not
             understand what is written on it in English, the interviewee will be deemed to
             have refused to sign the label, and action regarding certification by an
             independent officer will be taken.

      (v)    The provision of paragraphs 13.2, 13.5 and 13.9 of Code (C) on interpreters for
             the deaf or interviews with suspects who have difficulty in understanding
             English continue to apply. In a tape recorded interview there is no requirement
             on the interviewing officer to ensure that the interpreter makes a separate note
             of interview as prescribed in paragraph 13.3 of Code (C).

      (vi)   Following an interview involving a foreign language interpreter, the
             interviewing officer will prepare a record of taped interview based upon the
             English language content of the tape recording and will explain within the
             record that this is the action taken.

4.8   The Deaf

      a)     If the suspect is deaf or there is doubt about his/her hearing ability, the officer
             shall make a contemporaneous note of the interview in accordance with the
             requirements of Code (C), as well as tape record it. This gives the deaf access
             to the full interview record and thereby affords the deaf the equivalent rights of
             other hearing persons.

      b)     In these circumstances it will not be necessary for the interviewing officer to
             prepare a record of taped interview. The contemporaneous notes will be used.

5.0   CONDUCT OF THE INTERVIEW

5.1   It is essential that certain formal steps are followed at various stages before, during
      and after the Interview and guidance can be found in paragraphs 5.2 to 5.5, below.

5.2   Check List of Equipment. The items required in order to conduct a successful
      Interview are listed in Form Tape 4, at Appendix 2

5.3   At the beginning of the Interview, follow the requirements of Form Tape 1a, at
      Appendix 3. This is available from the Tape Librarian.

5.4   Throughout the Interview, the Guidance contained in Form Tape 3 at Appendix 1 must
      be followed.

5.5   At the end of the Interview, follow Form Tape 1b at Appendix 4, available from the
      Tape Librarian.



GEN-33/March 2009/35132                                                                      37
6.0   RECORD AND TRANSCRIPT OF TAPED INTERVIEW

6.1   General Requirements

      Where proceedings are to follow an interview, a written record of the interview should
      be prepared by, or on behalf of, the interviewing officer using FormTape 5 at
      Appendix 6.

      The preparation of the written record may be carried out by other staff, including
      clerical personnel. The interviewing officer shall be responsible for the accuracy of
      the written record which he should sign.

      The prosecution and defence are EXPECTED TO REACH AGREEMENT on any
      record of taped interview before any trial.

6.2   Preparation of Record In order to prepare the record of the interview, an officer
      should refresh his/her memory by listening to the working tape.

      (a)    Purpose of the Record of Interview

             1.     To provide a balanced, accurate and reliable summary, to enable the
                    prosecution to make informed decisions about the case on the basis of
                    what was said in the interview.

             2.     To be exhibited to the officers witness statement.

             3.     To enable the prosecutor to comply with the rules of advance
                    disclosure.

             4.     Where the record is accepted by the defence, to be used for the conduct
                    of the case by the prosecution, the defence and the court.

      (b)    What is the Record of Interview?

                    1. The record of interview reflects what the interviewing Officer will
                    say if required to give evidence.

                    2. It must provide an accurate and reliable account of the interview
                    upon which the prosecution will rely in any subsequent case.

                    3. It must be a fair and balanced account of the tape recorded interview
                    including, where appropriate, admissions, evidence to establish intent,
                    other ingredients of the offence and possible lines of defence. It must
                    also include matters to the benefit of the interviewee, including
                    mitigation.

      (c)    Format of the Record of Interview

             Generally the record of interview may be written in the third person.
             However, salient points must be recorded verbatim including:


GEN-33/March 2009/35132                                                                  38
            1.     Any questioning of, or statements by the suspect on intent, dishonesty,
                   self-defence, consent, or discussions concerning alternative pleas or
                   charges.
            2.     Admissions by the suspect to the offence(s) under investigation any
                   other offence for which he may be prosecuted.

                   (Both the questions and answers are to be recorded verbatim).

            Note: Wherever direct speech is referred to in the record the identify of the
                  speaker will be indicated.

                   (i)     Avoid Using Inconclusive Statements

                           Statements such as "the accused admitted the offence" should
                           never appear in a record of taped interview.

                   (ii)    Retraction of Earlier Admission

                           Where an earlier admission is retracted or qualified it will again
                           be necessary to record both question and answer verbatim, as
                           will also be the case where the accused provided a defence to an
                           allegation going beyond a mere denial of guilt.

                   (iii)   Timing

                           Records of taped interviews will include marginal notes to
                           indicate the minutes into the interview where admissions or
                           salient points occurred. It is advisable that interviewing officers
                           take notes of the times of relevant items during the interview for
                           retrieval when preparing their record of taped interview in order
                           to avoid the time-consuming and unnecessary process of
                           listening to whole interviews.

                   (iv)    How much Verbatim Speech?

                           The amount of verbatim speech included in the record of taped
                           interview will vary with each interview. The objective is to
                           give an account which accurately reflects the content of the
                           interview with the key parts in direct speech.

                   (v)     Identification of Participants

                           Whenever direct speech is referred to in a record of taped
                           interview persons will at all times be referred to by name.

                   (vi)    If the Interviewee Maintains Silence

                           In cases where a person being interviewed maintains silence or
                           answers `no comment‟ throughout the interview there will be no


GEN-33/March 2009/35132                                                                    39
                           need to prepare a record of taped interview. The fact that the
                           interview took place will be referred to in the officers statement
                           and reference will be made to the accused remaining silent or
                           consistently answering `no comment‟.

                  (vii)    Written Statement Under Caution

                           Officers are reminded that the fact that an interview is being
                           tape recorded does not preclude an interviewee electing to make
                           a written statement under caution. Such statements should be
                           taken whilst the tape is running. When this occurs the record of
                           taped interview may be shorter if the written statement under
                           caution accurately summarises what the interviewee has said
                           during the interview.

                  (viii)   Sensitive, Prejudicial and Inadmissible Evidence

                            Sensitive, inadmissible or prejudicial evidence should not be
                           included in the record of taped interview but must be reported
                           on elsewhere.

                  (ix)     Acceptance of Written Record

                           Should the defence not accept that the written record of taped
                           interview accurately reflects the content of the taped interview,
                           they will undoubtedly return the written record with a request
                           for amendment. On receipt of such a request, the interviewing
                           officer will have to consider the requested amendment and
                           prepare a revised record.

                           ANY REVISED RECORD MUST BE CLEARLY
                           MARKED ALONG THE TOP OF EACH PAGE WITH
                           THE WORD REVISED AND THE DATE OF THAT
                           REVISION.

                           Although the record of taped interviews may have been given
                           an exhibit reference when first prepared, that exhibit reference
                           will not be changed even though the Record is subsequently
                           revised, since the record of taped interview has no evidential
                           status until AGREED by both parties AND entered into
                           evidence in judicial proceedings.

                           The officer will retain the original record of taped interview and
                           all subsequent revisions.

                           When the prosecution and the defence are unable to agree on a
                           record of interview it will normally be appropriate to play the
                           tape or relevant part(s) in court.




GEN-33/March 2009/35132                                                                   40
6.3   Transcription

      (a)    What is a Transcript?

             A `transcript‟ is a verbatim account of the entire interview.

      (b)    Who Prepares It?

             A transcript would be prepared by an audio typist and its accuracy vouched for
             by the interviewing officer.

      (c)    When is a Transcript needed?

           Full transcripts shall always be prepared if it is possible a case may be taken
           further.
7.0   USE OF TAPES, TRANSCRIPTS AND RECORDS

7.1   Disclosure and Amendment

      A transcript will not be treated as an exhibit in an officer‟s witness statement. He/she
      will exhibit the transcript and indicate that the master tape is available.

7.2   Case Preparation/Officer Statements

      (a)    The prosecution file should include a statement from the interviewing officer
             which exhibits both the master tape(s) used and the record of taped interview
             (Form Tape 5 at Appendix 6).

             Example

             "................ at 3.14 pm I interviewed John Smith at .......................
             The interview was tape recorded on master tapes numbered .......................

             I later produced a record of taped interview in respect of these tapes.............

             Notes: 1.       Each master tape is identified by its unique tape reference
                             number and individually exhibited.

                      2.     In cases where two officers are present in an interview the
                             Record of Interview will be prepared by the Interviewing
                             Officer and only he will refer to it in his statement. The second
                             interviewing inspector will merely state that he was present at
                             the interview and will identify the master tape(s) used by means
                             of their unique tape reference numbers and exhibit references.




GEN-33/March 2009/35132                                                                            41
7.3   At Court

      (a)   Trials

            Although master tapes will be referred to in the interviewing officers
            statement, they will also be taken to court for trials, with the working copy.
            Master tapes required as court exhibits will be available from the master tape
            store.

            They MUST be returned as soon as possible.

            Where the officers evidence of the interview is accepted by the defence, the
            evidence shall refer to the fact that the interview was tape recorded and may be
            presented to the court in the form of the Record of Tape Interview. Where the
            officers evidence of the interview is not accepted by the defence, the officer
            shall refer to the fact that the interview was tape recorded and shall produce the
            master tape as an exhibit. The officer shall inform the court of any transcript
            which has been made of which he/she is aware.


            Production of the tape as an exhibit will have the effect in court proceedings of
            producing the content of the whole interview.




GEN-33/March 2009/35132                                                                    42
                                                                                       APPENDIX 1

      TAPE-RECORDED INTERVIEWS - NOTES FOR GUIDANCE

1.    Ensure that the equipment has been sound tested in the room where the Interview is to be
      held.

2.    Only interview one person at a time. Can have legal representation but we are not obliged to
      allow interviewees to be accompanied by anyone else.

3.    Always use new sealed tapes and break the seals in the presence of the person to be
      interviewed.

4.    A warning signal will sound when the tape starts. When it stops, the tape is recording.

5.    Introduce the interview. Follow the format set out on Form Tape 1a (Appendix 3)

6.    If the person being interviewed nods, shakes his head or points to an exhibit or part of his
      body, explain what he did and ask him to confirm your account.

7.    If you need to stop the interview for a short comfort break- state what you are doing and why -
      stop the tape. On re-entering the room, start the tape, state the time, re caution and reconfirm
      those present.

8.    For long breaks, i.e. rest periods or where interviewee needs to leave the room, conclude the
      interview and seal tapes immediately. Use fresh tapes when you resume. Re-caution before
      continuing.

9.    If there are any interruptions - explain what has happened clearly.

10.   If you show the person being interviewed an exhibit - describe it, including any reference
      numbers.

11.   When you need to change tapes, explain clearly what you are doing and why.

      There will be a warning signal when the tape has one minute to run. When you hear it - don‟t
      wait - prepare to use new tapes.

      Tell the interviewee that the tape is coming to an end and round off that part of the interview.
      It is important that this is not delayed as the precise length of individual tapes will vary and
      could lead to difficulties if the break is not made soon after the alarm sounds.

      Remove the two/ three tapes and mark and seal them immediately. New tapes can then be
      opened and the interview resumed using Form Tape 1a at Appendix 3.

12.   As you are introducing the interview make notes on the form ( Form Tape 1a at Appendix 3).
      You will have to record certain information on the label on the tape. If you have not got the
      information you cannot play the tape through to find it.

13.   When the interview is over and the machine is switched off, seal the master tape in the
      presence of the person being interviewed. Put into envelope and get anyone present at the
      interview to sign across the seal.




GEN-33/March 2009/35132                                                                            43
14.   Mark the working copy clearly with the name of the person being interviewed, tape reference,
      etc.

15.   When conducting interviews try and avoid breaks in the interview. Allow the defendant to use
      the toilet before you start the interview. Ensure you can complete the interview before a meal
      break is due.




GEN-33/March 2009/35132                                                                          44
                                                                          APPENDIX 2

      TAPE RECORDED INTERVIEWS - CHECK LIST
You Will Need

(a)   Tape Recorder -   ensure microphone is set up correctly - refer to user manual.

(b)   Cassettes

      The machine takes two cassettes at a time (one Master Copy and one Working
      Copy), with a total recording time of 45 minutes. Sealed cassettes to be obtained from
      Tape Librarian. Ensure sufficient tapes for interview.

(c)   Tape Reference Number and Tape Log

      An entry will be made in the office register of tape-recorded interviews. This number
      will be series of figures indicating:

      SECTION
      DAY OF MONTH
      MONTH
      YEAR
      CONSECUTIVE NUMBER OF INTERVIEW UNDERTAKEN THAT DAY.

      Therefore FS/01/04/97/2 is the second interview of the Food Safety Team on 1st April
      1997. If more than one tape is used for an interview they should be alphabetically
      annotated 2a, 2b, etc. Master Copies will be suffixed (M) and Working Copies (W).

      Sections -     FS   - Food Safety
                     HS   - Health and Safety
                     HOUS - Housing
                     EP   - Environmental Protection
                     DW - Dog Warden
                     LIC - Licensing

(d)   Paperwork Certain pieces of paperwork are necessary to carry out a successful taped
      interview, available from Tape Librarian.

      Form/tape 1a      Tape Recorded Interviews - at the beginning of the
                        interview. (Appendix 3)

      Form/tape 1b      Tape Recorded Interview - „at the end of the
                        interview.‟(Appendix 4)

      Form/tape 2       Notice to Persons whose Interview has been Tape
                        Recorded.(Appendix 5)

      Form/tape 3       Taped interviews - Notes for Guidance.(Appendix 1)



GEN-33/March 2009/35132                                                                  45
(e)   Police and Criminal Evidence Act 1984
      (S.60(1)(a) and S.66).
      Codes of Practice.

(f)   Materials for sealing master copy.

(g)   Digital clock.

(h)   Signs for door if appropriate „Quiet please ......... etc.‟. (Appendix 9)

(i)   Drink.

(j)   Pens and paper.

(k)   Any samples, photos, documents you wish to discuss.

(l)   List of solicitors/legal aid.

(m)   Forms for contemporaneous Interview Notes.

(n)   Forms for taking written Statements during a recorded Interview.




GEN-33/March 2009/35132                                                           46
                                                                               APPENDIX 3
AT THE BEGINNING OF THE INTERVIEW

NB: WORDING IN BOLD TEXT MUST BE SAID VERBATIM

Name of interviewee

Tape reference number                                 Date

This interview is being tape recorded.

I am

The interview is being conducted at

What is your full name

What is your date of birth

Also present are (anyone present should announce their full name and position)
(It is essential that each person present speaks for the purpose of voice identification).



The date is                                     The time is

At the end of this interview I will give you a notice explaining what will happen to the
tapes.

(Caution the interviewee).

You do not have to say anything. But it may harm your defence if you do not mention
when questioned something which you later rely on in court. Anything you do say may
be given in evidence.

Do you understand?

(If the interviewee does not understand the caution, explain again (in different words if
necessary)

You are not under arrest. You may seek legal advice. You are not obliged to stay and
you may leave at any time.

I have a list of local solicitors and legal aid centres if you wish to see it. Do you
understand?

Here is a copy of the Codes of Practice made under sections 60 (1a) and 66 of the Police
and Criminal Evidence Act 1984 if you wish to consult them.

NOW CONDUCT THE INTERVIEW


GEN-33/March 2009/35132                                                                      47
                                                                            APPENDIX 4
AT THE END OF THE INTERVIEW

NB: WORDING IN BOLD TEXT MUST BE SAID VERBATIM

Obtain and read back any written statement made by the interviewee under caution.

ASK ...

Do you wish to clarify anything you have said?

Do you wish to add anything?

This matter may be reported for further action.

This is the notice I told you about at the beginning of the interview.

Complete form TAPE/2 (Appendix 5) and hand to interviewee.

The interview is now concluded,

The time is                                       I am turning the tape off.

-      Switch off tape.

-      Allow interviewee to choose one tape as the master copy.

-      Seal master copy in presence of interviewee.

-      Interviewing officer must record the following details in his/her own notebook.

       •      details of interviewee;
       •      date, time, place of interview, inc. start and finish time;
       •      details of persons at interview;
       •      tape reference numbers.

-      Immediately log all tapes (used and unused) with Tape Librarian.




GEN-33/March 2009/35132                                                                  48
                                                                           APPENDIX 5

                NUNEATON AND BEDWORTH BOROUGH COUNCIL



                       NOTICE TO PERSON WHOSE INTERVIEW
                            HAS BEEN TAPE RECORDED


This notice explains how the tape recording will be used and how you or your solicitor can, if
you wish, arrange to listen to it if you are prosecuted.

General

The interview has been recorded on two tapes. One of these tapes/sets of tapes, has been
sealed in your presence and will be kept securely in case it is needed in court. The other
tape/set of tapes will be a working copy to which the Environmental Health Department and
you or your solicitor may listen if you wish.


If you have a solicitor

If your solicitor wishes to obtain a copy of the tapes he should apply to the Chief
Environmental Health Officer, Nuneaton and Bedworth Borough Council, Town Hall, Coton
Road, Nuneaton, CV11 5AA. If we decide to institute proceedings you will be supplied with
a copy of the tapes as soon as practicable.

If you do not have a solicitor

If you do not have a solicitor now you should think about whether you should seek one. If
you do not want a solicitor and you are prosecuted, you will be given a copy of the tape
recording yourself.



Interviewing Officer

Tape Reference Number(s)

Date

Time




GEN-33/March 2009/35132                                                                    49
                                                                                 APPENDIX 6
                NUNEATON AND BEDWORTH BOROUGH COUNCIL



                       RECORD OF TAPE RECORDED INTERVIEW


Person interviewed

Place of interview

Tape reference number(s)

Date                   Time Started                  Time Finished

Interviewing Officer

Other person(s) present (full names)
___________________________________________________________________________


___________________________________________________________________________


___________________________________________________________________________


___________________________________________________________________________


___________________________________________________________________________



This record consisting of             page(s) is the exhibit referred to in my

statement of                                  .


Name _____________________________________ Date___________________________




Signature




GEN-33/March 2009/35132                                                                  50
                                                                   APPENDIX 7
               NUNEATON AND BEDWORTH BOROUGH COUNCIL


To: Tape Librarian

Request for copy of tape recorded interview. (FROM WORKING COPY)

Please supply a copy of the tape recorded interview as follows:-

Tape reference number:

Name of person interviewed:

Reason for request:




Name                                Position

Signature                                  Date


For use by Tape Librarian

       Tape Ref. No.

       Date copied: ______________________________________________

       NB Complete working tape log.


       Name                              Position


       Signature

       ‘THE WORKING COPY MUST BE RETURNED TO THE TAPE LIBRARY
       AFTER USE’.

Received by


Date                               Signature


GEN-33/March 2009/35132                                                    51
                                                                               APPENDIX 8
                NUNEATON AND BEDWORTH BOROUGH COUNCIL


Issues of tapes for
Section

A      ISSUE OF TAPES (to Interviewing Officer from Tape Librarian).

       Person interviewed (full name)

       Date                 Time                Total number of Tapes Issued

       Issued by (name)                              Position

       Signature

       Received by (name) _________________________ Position ______________

       Signature
       _______________________________________________________________


B      RETURN OF TAPES (To Tape Librarian)

       No. of tapes used for interview                          No. Unused

       (number)       Master tapes to store Ref. No. ______________________________

              _____________________________________________________________

       (number)        Working tapes to store Ref. No. ___________________________

       (number)        Unused tapes returned to issue store

       (number)        Total tapes accounted for

       If any discrepancy, give reason (e.g. broken tape)



       Received by (name)                        Position


       Signature                         Date                   Time




GEN-33/March 2009/35132                                                                52
                          APPENDIX 9




QUIET PLEASE
             _____________

             FORMAL
           INTERVIEW
          IN PROGRESS
             _____________

   ABSOLUTELY
       NO
   ADMITTANCE
GEN-33/March 2009/35132            53
                                                        APPENDIX 10

                                    TAPE LOG
 TAPE REFERENCE           PERSON INTERVIEWED   INTERVIEWING OFFICER(S)




GEN-33/March 2009/35132                                          54
                                                                                       APPENDIX 11

                                             MASTER TAPE LOG

                              TAPES RELEASED FROM STORE                             TAPES RETURNED

   Tape Ref     Received By       Signed      From        Signed   Date & Time   Date & Time   Returned By




GEN-33/March 2009/35132                                                                          55
                                                                                       APPENDIX 12

                                            WORKING TAPE LOG

                              TAPES RELEASED FROM STORE                             TAPES RETURNED

   Tape Ref     Received By       Signed      From        Signed   Date & Time   Date & Time   Returned By




GEN-33/March 2009/35132                                                                          56
       CONTINUITY OF EVIDENCE

                                INDEX

1.0   INTRODUCTION

2.0   CATEGORIES OF EVIDENCE

3.0   HANDLING METHODS


APPENDICES

APPENDIX 1        FLOWCHART - EVIDENCE AUDIT TRAIL

APPENDIX 2        EXPLANATORY NOTES ON APPENDIX 1

APPENDIX 3        WITNESS STATEMENTS STANDARD PARAGRAPHS- samples

APPENDIX 4        STANDARD PARAGRAPH- PHOTOGRAPHIC PROCESSING- for use
                  in officer witness statements




GEN-33/March 2009/35132                                             57
1.0   Introduction

1.1   This Section explains the policy for ensuring that all evidence is acquired and handled in
      such a manner as to be able to demonstrate, by documentary controls, that the evidence
      produced in Court is the same as that collected during the investigation.

1.2   It follows that strict controls of the various categories of evidence will be required so that
      movements of exhibits etc within and outside the Department can be properly accounted
      for.

2.0   Categories of Evidence

2.1   There are six categories of evidence, each of which requires its own method of acquisition
      and handling. The Categories are:

         DOCUMENTARY - including Notebook entries, (N.B when a notebook is finished
          it must be kept in the Tape Store for at least three years or until a prosecution is
          finalised, which ever is the longer.) Witness Statements, correspondence, Company
          Records, Calibration Certificates etc

         TAPED INTERVIEW - refers to a formal P.A.C.E. interview as described in the
          Procedure entitled „Tape Recorded Interviews‟.

         PHOTOGRAPHIC - primarily means photographs taken by the investigating
          Officer during the investigation but may also refer to photographs obtained from other
          sources. Digitally produced evidence requires special handling. See the „Procedure
          for the Use of Digital Material as Evidence‟.

         COMPUTER GENERATED - includes down-loaded data from logging equipment
          or any records held on computer. Digitally produced evidence requires special
          handling. See the „Procedure for the Use of Digital Material as Evidence‟.

         VIDEO - may be taken by the investigating Officer or derived from other sources.
          Digitally produced evidence requires special handling. See the „Procedure for the Use
          of Digital Material as Evidence‟.

         PHYSICAL - also sometimes called „real‟ evidence. This includes articles or
          substances such as food items, equipment seized during H&S Inspections, samples of
          contaminated soil, charred bonfire remains etc

3.0   Handling Methods

3.1   The methods used for registering evidence and recording its subsequent movements are
      discussed in detail in the Flowchart at Appendix 1 and the Explanatory Notes at Appendix
      2. For this reason, methods will only be summarised in this text, as follows:



GEN-33/March 2009/35132                                                                          58
      A system of controls to establish continuity of all evidence is to be introduced. This relies
       on the secure storage and meticulous documentation of items. Each Prosecution case will
       have its own Evidence Register.

      The section Clerical Officer will enter details of each item of evidence acquired on a
       Register, at which point it will become ‘controlled evidence’ and all subsequent
       movements, both within and outside the Department will be recorded. The Register itself
       will be regarded as controlled evidence.

      Individual items of physical evidence will be bagged and/or tagged with a uniquely
       numbered disposable tagging system.

      Evidence which, for whatever reason, cannot be stored in the secure filing cabinet will be
       stored elsewhere under arrangements described below but its existence, description and
       location will be recorded on the Register. This will apply also to the Master Tape of
       formal recorded Interviews, for which special handling is required.

      Wherever possible, controlled evidence will be original. Where appropriate, copies will
       be taken of each item, of whatever evidence Category, to provide a working file for the
       Investigating Officer. This will minimise the need to access the secure cabinet to view
       evidence.

      Where an external Agency is involved, for example photographic processing or laboratory
       analysis, particular care is needed to account for the movements of evidence whilst
       outside the departments control.

       Witness Statements have been produced to maintain traceability under such circumstances
       and must be properly completed on each occasion. Where necessary, these Statements
       are to be supported by Notebook entries.

      In circumstances where evidence has to be booked out of secure storage, details are
       recorded on the Register which itself never leaves the filing cabinet until the case, and all
       Appeal opportunities are concluded.

       Details will be copied from the Register when all the evidence has been gathered and
       these will be used by the Disclosure Officer (the Procedure entitled „Disclosure of
       Unused Material‟) when the time comes.


FAILURE TO OBSERVE THESE PROCEDURES MAY RESULT IN
EVIDENCE BEING RULED INADMISSABLE, LEADING TO LOST
CASES AND TO COSTS BEING AWARDED AGAINST NBBC




GEN-33/March 2009/35132                                                                          59
 EVIDENCE AUDIT TRAIL                                                                                     APPENDIX 1
                                                      EVIDENCE TAKEN

                            Y ES                                                    NO
                                                 1

                                                       UNDER CAUTION
                                                            ?


                          NOTEBOOK
                           ENTRY
                                                     EVIDENCE CATEGORY




  2                 3                    6                          9                 12                   14



                          TAPED                                      COMPUTER
 DOCUMENTARY                             PHOTOGRAPHIC                                      VIDEO                PHY SICAL
                        INTERVIEW                                    GENERATED



                    4                     7                      10                   13                   15


                     FOLLOW ALL                                        CREATE
 TAKE COPY FOR                              PROCESS                                  TAKE COMPLETE           BAG UP AND
                     PRESCRIBED                                        WITNESS
  WORKING FILE                            IMMEDIATELY                                WORKING COPY          UNIQUELY LABEL
                       STEPS                                         STATEMENTS



                    5                    8                       11

                                             INCLUDE IN
  NOTEBOOK          MASTER COPY                                                           STORAGE
                                              OFFICER                RAW DATA                                ANALY SIS
 ENTRY COPIES         TO TAPE                                                            DOCUMENTS
                                              WITNESS               MASTER DISK                             REQUIRED ?
    MADE              LIBRARY                                                            COMPLETED
                                             STATEMENT




                      STORAGE            SERIAL NUMBER                                                      NO          Y ES
                     DOCUMENTS               EACH
                     COMPLETED            PHOTOGRAPH



                                                                                                       SUBMIT TO
                                                                                                      LABORATORY

                                                                        16


                                                                                                                  17
                                              ENTER INTO CONTROLLED
                                                EVIDENCE REGISTER
                                                                                                     OBTAIN WITNESS
                                                                                                       STATEMENT
                                                                18

                 LEGEND                                                                                           19
                                                     MAINTAIN AUDIT
                                                       CONTROLS
            FOR EXPLANANTION                                                                            SAMPLE
                 OF BOXES                                                                             RETURNED ?
             ANNOTATED WITH
                NUMBERED
              DIAMONDS, SEE
                  UNDER
               APPROPRIATE
             NOTE NUMBER IN                            PRODUCE                   COPY OF
                APPENDIX 2                            EVIDENCE IN             STATEMENT TO            NO         Y ES
                                                        COURT                 WORKING FILE


                                                                                                     20


                                                                                                      RE-BAG WITH
                                                                                                      NEW UNIQUE
                                          RETURN EVIDENCE TO SECURE                                      LABEL
                                    21    STORAGE UNTIL CASE AND ANY
                                             APPEALS ARE RESOLVED




GEN-33/March 2009/35132                                                                                                        60
                                                                        APPENDIX 2

NOTE 1      As soon as it becomes apparent that an offence may have been committed, the
            person responsible must be formally cautioned.

            The wording of the Caution to be used is in the inside cover of each officer‟s
            official Note Book and these words are to be read out and not delivered from
            memory. This fact is to be recorded in the officer‟s Note Book.

            If there is any indication that the person cautioned did not understand the wording,
            the caution is to be explained in the officer‟s own words.

NOTE 2      Documentary evidence will include Witness Statements which may be
            expert/professional, or written perhaps by a complainant or other member of the
            public. Expert/professional Statements will include Laboratories and Photographic
            developers and those produced by the investigating officer.

            In each case, the original (handwritten) Statement will be kept as Controlled
            Evidence and a typed transcript will be made for the working file. Handwritten
            Statements must be on lined paper.

            Such transcripts may themselves be used as evidence (supported if necessary by
            the original) but should be typed in the following way on the standard Witness
            Statement form:

            a)     The first paragraph, if produced by an expert/professional, should include a
                   summary of qualifications and/or experience relevant to the case.

            b)     Thereafter, the Statement should be produced without paragraphs.

            c)      Typing must be in full justification format. Where a line is necessarily
                    incompletely justified, the initials of the person signing should appear
                    immediately after the last word, in such a way as to indicate that nothing
                    further has been added
                    .
            Other documentary evidence e.g. Cleaning Schedules and Records, Tenancy
            Agreements etc should, wherever possible, be in original with a copy being made
            for the working file.

NOTE 3      The full requirements for the taping of interviews is contained in PACE Code E
            and in the Procedures entitled „Tape Recorded Interviews‟.

            Where interviews are required, the taped interview will be the method of choice
            and where possible will be conducted in a quiet room within
                  .


GEN-33/March 2009/35132                                                                      61
            It is essential that the room is prepared beforehand so that the microphone position
            can be established for optimum sound recording.

            A minimum of two officers must be present for taped interviews and the procedure
            for the conduct of the interview must be strictly in accordance with PACE Code E
            and with the relevant Procedure.

            The tape recorder may, if necessary, be taken on site in which case battery power
            will normally be used so it will be necessary to ensure that the batteries are fully
            charged the day before the interview is to take place.

            Because of the lack of opportunity to prepare the recording room beforehand, a
            sound test to establish recording levels and microphone position etc must be
            carried out.

            Note that the Master Copy, is the only one which it is guaranteed can be replayed
            in Court and this cannot be edited in any way.

NOTE 4      The steps, which are required to be followed during a taped interview are complex
            and highly prescriptive.

            In particular, the way in which a Master Tape must be handled are very precise
            and require to be followed to the letter if it is intended that the tape should be
            introduced into evidence.

            The manner in which the interview is conducted and the necessity to follow
            specific procedures can be found in PACE Code E, while the NBBC interpretation
            of what has to be done is in the Procedure entitled „Tape Recorded Interviews‟.

NOTE 5      The Master Tape from a recorded interview will not be stored with other evidence,
            but will be kept in a securely locked and controlled box to be known as the Tape
            Library.

            Although tapes will be separately documented within the library, reference must
            also be made to their existence and whereabouts in the Controlled Evidence
            Register.

NOTE 6      It is important that photographs are taken using a date/time stamp camera and a
            new roll of film.

            Where possible two photographs should be taken of each object/activity of interest
            but care must be taken not to take any unnecessary photographs which may later
            have to be disclosed as ‘unused material’ (see Disclosure of Unused Material)

            Unexposed film is not to be left in the camera and the film must be developed as
            soon after taking as possible, in accordance with Note 7, below.


GEN-33/March 2009/35132                                                                      62
NOTE 7      When photographs have been taken which are in any way likely to be required as
            evidence, they are to be processed immediately, using the Contract photographic
            company. This must be done regardless of how many unexposed frames there
            may be and, for this reason, a twelve exposure film should be used to minimise
            wastage.

            When using a camera that will not allow the removal of a partly used film, the
            remaining frames should be exposed by operating the shutter with the lens cap on.
            The fact that this has been done should be recorded in the Officer‟s Notebook.

            The procedure for placing films for processing is outlined at Note 8, below. Note
            that photographs taken with digital equipment require special handling. See the
            „Procedure for Using Digital Material as Evidence‟ for details.

NOTE 8      The importance of ensuring continuity of evidence during processing cannot be
            over emphasized.

            If an Officer other than the Case Officer is involved in the delivery of film for
            processing, or its collection from it, a record must be made in that Officer‟s
            Notebook and the information must show the relevant details which are contained
            in the Officer Witness Statement shown at Appendix 3. A standard paragraph for
            confirming the photos are true is included in Appendix 4 for inclusion in the
            Officers Witness Statement.

NOTE 9      Evidence produced by means of computer or other data-logging equipment must
            be supported by a Witness Statement from the officer(s) involved in operating the
            machines. Examples of typical uses for evidence of this type will be noise levels
            or temperatures over time, usually produced in graph form by means of dedicated
            software and a Spreadsheet.

            Details of the requirements for the Witness Statement are contained in Note 10,
            below.

            Note that computer generated evidence requires special handling.        See the
            „Procedure for Using Digital Material as Evidence‟ for details.


NOTE 10     Where a Witness Statement refers to evidence which has been obtained from
            computer or automatic data-logging equipment, it must include reference to the
            fact that the equipment was correctly calibrated (where applicable), was used
            strictly in accordance with Manufacturers‟ instructions and that the computer and
            software were, as far as is known, operating without error.

            Each item of equipment and software programme used is to be listed.




GEN-33/March 2009/35132                                                                   63
NOTE 11     The raw data from which evidence has been produced, perhaps in the form of a
            graph or table, is to be copied onto a floppy disk which is then to be held,
            unedited, as Controlled Evidence.

            If a copy is required for disclosure purposes, it must be complete and must be
            accompanied by details of the Spreadsheet used, to include the Version Number.

            Where the data have been edited, details are to be supplied on disclosure.

NOTE 12     Video recordings should be made only on equipment which incorporates a
            date/time stamp function. Where the image is of an object or activity of particular
            importance, or where the significance may not be clear, a spoken commentary
            should be made into the microphone at the time of recording.

            A commentary must also be used to „set the scene‟ and this should include the
            officer‟s name, the location and the reason for video recording.

            Note that video footage taken with digital equipment requires special handling.
            See the „Procedure for Using Digital Material as Evidence‟ for details.

NOTE 13     As soon as practical after completion of a video sequence, a complete working
            copy is to be made and the original documented in the Controlled Evidence
            Register and securely stored.

            This will be referred to as the Master Copy and is not to be edited in any way.

            If copies are required for disclosure, they must be complete and on a full sized
            video cassette.

            The working copy may be cut in length but not edited in any other way if it is
            intended to produce it as evidence.

NOTE 14     Physical evidence, also known as real evidence will include, for example,
            foodstuffs and packaging, charred bonfire remains, soil samples, asbestos or
            allegedly unsafe items of equipment or machinery.

            Before removal from site, such items should normally be photographed or videoed
            in situ to establish context.

            Some physical evidence, due to its size, nature or special storage requirements
            (e.g. low temperature) may not permit of storage in the normal evidence cabinet.
            Where this is the case, the whereabouts of the item and the security of storage
            must be meticulously noted in the Controlled Evidence Register (see Note 17,
            below.)

            A written receipt will be issued for all items of physical evidence removed from
            site, in accordance with the provisions of the appropriate legislation.


GEN-33/March 2009/35132                                                                       64
NOTE 15     Physical evidence is to be placed, where possible in polythene bags and sealed
            with a uniquely numbered tag before secure storage or sent for analysis.

            If analysis by an outside Agency is required, the evidence must be accompanied
            by the standard Witness Statement (Appendix 4) as well as the necessary
            laboratory forms and the tag number must be referred to in both of these
            documents.

            This number must also be entered into the Controlled Evidence Register.

            Where the evidence cannot be bagged, a uniquely numbered tag is to be attached
            to it.

            If an Officer other than the Case Officer is involved in the delivery of evidence to
            an outside Agency or collection from it, a record must be made in that Officer‟s
            Notebook and the information must show the relevant details which are contained
            in the Witness Statement at Appendix 4.

NOTE 16     Each piece of evidence, of whatever category, is to be separately entered into the
            Register, including individual photographs. However, large numbers of
            photographs can be recorded by means of a single Log.

            Each item/document/photograph etc will be allocated an Exhibit Number with
            which it will be securely labelled. This will be the Complaint Number, followed
            by sequential suffixes for each exhibit, i.e. 01*1234/001, 002 etc

            The Register will be found in the Model Case File which is at Appendix 3 to the
            Procedure entitled „Preparation for Prosecution‟.

            The evidence itself will be held in the locked container provided within each
            Section and the section Clerical Assistant is to hold the key and make any
            necessary entries in the Register. However, the Investigating Officer remains
            responsible for the evidence at all times.

            Documentary evidence is to be held, one page at a time and each separately
            numbered, in clear plastic wallets in a file. Exceptions to the separate numbering
            of pages will be bound volumes or documents of ten or more pages.

            For such documents it will be sufficient to state the total number of pages and to
            note any which are missing.

            Physical evidence which cannot be held in the filing cabinet for reasons of bulk,
            hazard or controlled temperature requirements must be securely held as
            appropriate and details entered into the Register accordingly.




GEN-33/March 2009/35132                                                                      65
            Where appropriate, copies for the working file must be made before the evidence
            is registered, in order to minimise the need for further access. As noted in Note 6,
            separate arrangements exist for the storage of Master Tapes of interviews.

            There may be occasions when all the evidence is removed at the same time from
            secure storage, for example if needed for a legal conference, peer review for
            prosecution and, of course, for the Court hearing itself.

            When this occurs, a photocopy of all the Evidence Register and Record of
            Changes Sheets must be made and kept in the secure container provided.

NOTE 17     A Witness Statement must be provided by the laboratory whenever physical
            evidence has been submitted for analysis using the statements in Appendix 4.

            This Statement must include, inter alia, details of the laboratory procedures in
            place to ensure continuity of the item submitted.

            The originals of such Statements will be held as Controlled Evidence after a
            working copy has been made.

NOTE 18     Where non-destructive analytical techniques have been used, or when some
            portion of the evidence remains after analysis, it should be normal practice to
            request its return from the laboratory.

            When this is not possible, the Witness Statement from the laboratory should make
            this clear using the statements in Appendix 4.

NOTE 19     When items (or portions) are collected from the laboratory, they must be
            immediately re-bagged and a new uniquely numbered tag attached.

            It is essential to record the change of number on the Register.

NOTE 20     When the evidence is complete and the prosecution case is prepared, full Audit
            Controls must be maintained.

            It should rarely be necessary for the Investigating Officer to require access to
            Controlled Evidence, as this is the whole purpose of the working file copies.

            Access is to be minimised and, where unavoidable, must be properly documented.

NOTE 21     Following the Court case (or at the end of each day in a protracted case) all
            Controlled Evidence is to be returned for secure storage where it must remain until
            the case and all Appeal possibilities have been completed.




GEN-33/March 2009/35132                                                                      66
                                                                                             APPENDIX 3
                        NUNEATON AND BEDWORTH BOROUGH COUNCIL

                                         STATEMENT OF WITNESS

(Criminal Justice Act 1967, S.9; Magistrates Courts Act 1980, S.102; MC Rules, S.70; MC (Forms) Rules
1981, F.13)

STATEMENT OF: ________________________________________________________________________

Age of Witness: ________________
(True age to be shown where witness is a juvenile or person involved in serious crime enquiry, or otherwise
„over 18' will suffice).

Occupation of witness: ______________________________________________________________________

Address: ________________________________________________________________________________

Telephone number - Work: (                          )

This statement, (consisting of one page signed by me), is true to the best of my knowledge and belief and I
make it knowing that if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it
anything which I know to be false or do not believe to be true.

Dated the ____________ day of _________________________ 200_____ (Signed) ____________________



On the _________ day of ____________________ 200_____ at                    :         hours I received into my


control a sealed and tagged sample with reference number ____________________ from


___________________(name) of the Environmental Health Department of Nuneaton and Bedworth Borough
Council


for which I gave the following reference number____________________ .




Signed __________________________




GEN-33/March 2009/35132                                                                                          67
                                                                                      APPENDIX 3 (Continued)

                                         STATEMENT OF WITNESS

(Criminal Justice Act 1967, S.9; Magistrates Courts Act 1980, S.102; MC Rules, S.70; MC (Forms) Rules
1981, F.13)

STATEMENT OF: ________________________________________________________________________

Age of Witness: ________________
(True age to be shown where witness is a juvenile or person involved in serious crime enquiry, or otherwise
„over 18' will suffice).

Occupation of witness: _____________________________________________________________________

Address : _________________________________________________________________________________


Telephone number - Work: (                         )

This statement, (consisting of one page signed by me), is true to the best of my knowledge and belief and I
make it knowing that if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it
anything which I know to be false or do not believe to be true.


Dated the ____________ day of ________________200_____(Signed) ______________________________


On the ____________ day of _____________________________ 200_____ at ________:_______ hours


_________________________ (name) of the Environmental Health Department of Nuneaton and Bedworth
Borough


Council gave me the reference number _________________ and in return I gave that Officer the analysis


report /and the sample with reference number ___________________ .




Signed ______________________________________




GEN-33/March 2009/35132                                                                                          68
                                                                               APPENDIX 4


Standard paragraph for use in officer witness statements re: introducing photos as evidence.

On [date] at [premises, address] I took [number] of photographs. The [film was/ films were]
developed at the on site facility at [shop, address]. The prints are a true representation of the
photographs taken and have not been altered or enhanced in any way.




GEN-33/March 2009/35132                                                                        69
     PROCEDURE FOR THE
      PREPARATION OF A
        PROSECUTION
INDEX
      1.0   Introduction

      2.0   Prosecution Options

      3.0   Importance of following correct procedures

      4.0   Time constraints


APPENDICES


      APPENDIX 1           Case Decision Information

      APPENDIX 2           Legal Proceedings Action Sheet




GEN-33/March 2009/35132                                     70
1.0   Introduction

1.1   The protocol for determining when, and how, to process potential prosecutions is
      contained in this section.

1.2   Detailed procedures are set out in the Flowchart at Appendix 1 and the Explanatory Notes
      which are at Appendix 2.

2.0   Prosecution Options

2.1   As a general principle, prosecution should be considered in ALL cases when,

      a) a direct offence has been committed

      b) a Notice/Planning Condition/Licensing Condition etc has been breached.

2.2   Initially, the Case Officer is best placed to decide upon the merits of a particular case and
      there may be occasions when an alternative to prosecution may be appropriate.

      The options are:

      a) Informal letter

      b) Written >Final Warning=

      c)   Formal Caution (provided that the criteria in Home Office Circular 30/2005 can be
           met in full).

2.3   Any of the above actions may be taken but Case Officers are to consult with Line
      Management in all cases when satisfied that an offence has been committed.

3.0   Importance of Following Procedures

3.1   It is essential that the train of events listed in Appendix 1 is properly followed so that
      informed decisions may be taken in the correct sequence and at the appropriate level.
      At each stage, Officers will have regard to the procedures outlined in the „Principles of
      Enforcement‟

4.0   Time Constraints

4.1   Case Officers must bear in mind any time constraints by which action must be taken. In
      practice, cases should be progressed as quickly as possible and, in particular:

      a)      Legal Services are to be notified as soon as the decision to prosecute has been
              taken. Notification is to be in the form of a Memo, a copy of which is to be
              retained in the Case File.




GEN-33/March 2009/35132                                                                         71
      b)     All prosecutions are to be written up, authorised and the Case File sent to Legal
             Services within three months of the offence having been committed or having
             been discovered. If there is justification for taking longer than three months, the
             reasons are to be documented and agreed by the . Designated Officer. Legal
             Services must again be informed.


             Drafted by:
             Approved by:
             Implemented:




2.    The Prosecution File is to be forwarded to Legal Services within three months of the
      offence having been committed or discovered, unless an extension to time is agreed with
      an authorized senior officer.

3.    A Legal conference is to be arranged as soon as possible and, in any case, within one
      month of the case file having been forwarded.

4.    Legal Services will arrange for the issue of Summonses and a copy should be provided
      for the case officer. This stage should take no more than two weeks.




GEN-33/March 2009/35132                                                                            72
                                                                                                      Appendix 1
                                       Case Decision Information


 File Reference                          Compiled on
                                         _________________________________
Surname (& maiden name)                  _         Male        Female
________________________________________
Forename(s)                                        Married     Separated
________________________________________________
Age
___ ___________ Date & place of birth              Single      Cohabiting
                _____________________________
Address                                            Divorced    Dependants
________________________________________________
_______                                            White       Black

Occupation                                 Nationality           Asian                                Other
_____________________                      _____________________
__________________
Previous Convictions                         Yes / No

Previous Cautions                            Yes / No

Other previous sanction    Yes / No                                     Type:
___________________________________

Date of Offence(s)


Legislation Contravened



Brief Details



Personal details:
(Include domestic and employment circumstances and financial commitments)



I recommend prosecution / administrative penalty (fraud cases only) / caution (fraud
cases) / no further action in this case.

Signed __________________________________ (Investigation/ Enforcement Officer)

Date _____________


Pass to Senior Investigations Officer / Line Manager
--------------------------------------------------------------------------------------------------------------------


GEN-33/March 2009/35132                                                                                           73
I have reviewed this case and authorise case disposal by means of administrative
penalty (fraud) / caution (fraud) / no further action.

                                                        OR

I agree with the recommendation to prosecute, case passed to Assistant
Director/Reviewing Officer

Comments:

Signed _____________________________ (Senior Investigation Officer/ Line
Manager)

Date ______________
---------------------------------------------------------------------------------------------------------------------

Assistant Director / Review Officer’s Recommendations

Evidence:

Is there sufficient evidence in this matter?                                              Yes / No

Does the case pass the public interest test?                                              Yes / No

Does the case fit NBBC Prosecution and Sanction Policies?                                 Yes / No


Why is it felt to be in the public interest to prosecute this case?


I approve prosecution in this case. Case Passed to Legal Services

Signed _________________________________ (Assistant Director / Reviewing
Officer)
Date _______________

---------------------------------------------------------------------------------------------------------------------
Senior Legal Officer

Evidence:

Is there sufficient evidence in this matter?                                              Yes / No

Does the case pass the public interest test?                                              Yes / No

Does the case fit NBBC Prosecution and Sanction Policies?                                 Yes / No

I agree that prosecution is appropriate in this case.




GEN-33/March 2009/35132                                                                                           74
Signed ________________________________                           (Senior Legal Officer)
Date ________________________________                              Pass to Head of Legal Services
---------------------------------------------------------------------------------------------------------------------
Head of Legal Services

Delegated powers:-                        Constitution Part 3(3d) Part B Head of Legal
Services(3)

Recommendation:-                          Prosecution

Decision:                                 Having considered the papers in connection with this
                                          matter and the recommendation of the
                                          …………………………………………
                                          and the Senior Legal Officer
                                          IN PURSUANCE of the powers delegated to me by The
                                          Nuneaton and Bedworth Borough Council I authorise/do
                                          not authorise the institution of proceedings under
                                          …………………………………

                                          Against………………………………………………………
                                          ……….

Signed                                   Dated this …………day of …………………….20                                  .




GEN-33/March 2009/35132                                                                                           75
                                                         APPENDIX 2
LEGAL PROCEEDINGS ACTION SHEET
Case Reference………………………           Lead Officer ……………………….. Extn………….

Other Officers/Witnesses ………………………………………………………………………….

Offence (when and where)
Relevant legislation
Aim of legislation
Case Law

Defence
Defendants Name and
Address


Defendant‟s interest
PACE Interviews
conducted?
Witness Statements

Photographs
Notebook Entries
Documents
Exhibits

Laboratory Reports

Laboratory Ref
Other Evidence

Relevant History

Other Comments

Approved by SUM

                           Signature……………………….. Date ……………


Date submitted to Legal Services……………………….




GEN-33/March 2009/35132                                                76
                 LEGAL PROCEEDINGS ACTION SHEET (continued)

                           EVIDENCE AUDIT TRAIL

  CATEGORY                     DESCRIPTION                CHECKED FOR
                                                           CONTINUITY
                                                            BY/DATE
Documentary
(Notices, records,
correspondence,
notebook entries,
calibration certs,
Authorisation etc)
Taped Interview
Transcripted PACE
Interview
Photographic
(Supported by
developer‟s
Witness Statement)
Computer
Generated
(eg Noise Graphs,
charts, digital
images etc)
Video
Supported by
Covert
Authorisation if
applicable
Physical
(eg food, fire
residue etc)
Other (Specify)



Date of first Hearing………………………        Date of Final Hearing …………………………

Plea……………………………………….                  Result …………………………………………

Penalty. ………………………………….               Costs …………………………………………

Date completed………………………….             Date to File……………………………………




GEN-33/March 2009/35132                                              77
             PROCEDURE FOR THE
               DISCLOSURE OF
              UNUSED MATERIAL




GEN-33/March 2009/35132          78
                                         INDEX


      1.0 - 1.10 INTRODUCTION

      2.0 - 2.1 DEFINITIONS

      THE DISCLOSURE PROCESS

      3.0 - 3.2 Recording of material

      4.0 - 4.5 Retention of material

      5.0 - 5.5 Scheduling of material

      6.0 - 6.2 Prosecution Disclosure

      7.0 - 7.3 Defence disclosure



      4. APPENDICES

      APPENDIX 1 Flowchart - Recording, retaining and disclosing material

      APPENDIX 2 Explanatory Notes on Appendix 1

      APPENDIX 3 Flowchart – The Disclosure Process

      APPENDIX 4 Explanatory Notes on Appendix 3

      APPENDIX 5 Disclosure Officer‟s Report (Non-Sensitive Material)

      APPENDIX 6 Disclosure Officer‟s Report (Sensitive Material)

      APPENDIX 7 Filing Note Format




GEN-33/March 2009/35132                                                     79
INTRODUCTION

1.1    The Criminal Procedure and Investigations Act 1996 and the provisions of the Code of
       Practice relate to all criminal investigations commenced on or after 1 April 1997.

1.2    The Act and associated Code of Practice apply to all enforcement officers, even though
       mention is usually made only of the Police.

The Code of Practice sets out the manner in which Enforcement Officers are to record, retain and
reveal to the Prosecutor material obtained in a criminal investigation and which may be relevant
to the investigation and related matters.

1.6    In brief summary, the requirements are:

       a)   To record and retain, in durable form, all material collected in the course of an
            investigation.
       b)   To appoint a Disclosure Officer to the case, whose duties include making a
            Schedule of material which does not form a part of the prosecution evidence and to
            disclose any material likely to assist the defence (after applying relevant Tests) to
            the Prosecutor.

       There is a continuing duty of disclosure therefore such disclosure applies at every stage
       of the preparation of the case for trial.

       The definitions of Disclosure Officer and Prosecutor are given at paragraph 2, below.

       c)   To appoint a Prosecutor, responsible for disclosing appropriate unused material to
            the defence.

1.7    To ensure strict compliance with the Code, the normal best practice rules governing the
       taking of notes and the recording of events must be meticulously applied.

       This is of particular importance when investigating „nuisance‟ or similar complaints
       where, in the absence of Notice action having been taken beforehand, there is no
       possibility of an offence having been committed. Since it is not usually possible to state
       that a particular case will never result in prosecution, record keeping must be of the
       highest order from the very start of the investigation.

1.8    Guidance in the way that material should be recorded, retained and revealed is given in
       the Flowcharts at Appendices 1 and 3, together with the explanatory notes for each which
       are at Appendices 2 and 4, respectively.

1.9    In cases where it is decided that prosecution action will be taken, investigating officers
       must ensure that this Procedure is correctly followed and must also take full account of
       the Code of Practice and the Prosecution Procedures.

1.10   Throughout the investigation, enforcement officers must act in a fair manner. In
       particular, the investigator must pursue all reasonable lines of enquiry, whether these
       point to or away from a suspect.


GEN-33/March 2009/35132                                                                        80
      “The right of every accused to a fair trial is a basic or fundamental right and his right to
      fair disclosure is an inseparable part of his right to a fair trial.”

      (Lord Justice Steyn in the case of R v Brown (Winston) in the Court of Appeal in June
      1994.)

2.0   DEFINITIONS

2.1   The following definitions, which are taken from the Code of Practice issued under Part 2
      of the Act, should be used in interpreting the meaning of words used in this Procedure:

      a)     Criminal Investigation is an investigation conducted with a view to ascertaining
             whether a person should be charged with an offence, or whether a person charged
             is guilty of the offence. It will include,

             i) investigations into crimes that have been committed

             ii) investigations to establish whether a crime has been committed

             iii) investigations begun in the belief that a crime may be committed

      b)     Investigator (or Investigating Officer) is any officer involved in the conduct of a
             criminal investigation. Investigators must act under the Code of Practice and must
             record and retain all information and other material at all times.

      c)     The Officer in charge of the investigation is responsible for ensuring that proper
             procedures are in place for recording and retaining information and other material.

      d)     Disclosure Officer is responsible for examining the material retained by the
             Investigator during the investigation, revealing material to the Prosecutor and
             certifying that he has done this and disclosing material to the accused at the
             request of the Prosecutor.

      e)     The Prosecutor is the authority responsible for the conduct of criminal
             proceedings. (For the purposes of this Procedure, the Prosecutor will be a solicitor
             of NBBC Legal Services).

      f)     Material is material of any kind, obtained during the course of an investigation
             and which may be relevant to that investigation. This includes material generated
             by the investigation such as interview records.

      g)     Material may be relevant to the investigation if it appears to the Investigator or
             the Prosecutor that it has some bearing on the offence, or the person being
             investigated, or on the circumstances surrounding the case, unless it is incapable
             of having any impact on the case.

      h)     Sensitive Material is material which the Disclosure Officer believes, after
             consultation with the Investigator and/or Officer in Charge, it would not be in the
             public interest to disclose. (In practical terms, names and addresses of
             complainants should normally be regarded as Sensitive Material).


GEN-33/March 2009/35132                                                                        81
NOTE: The Investigator, Officer in Charge and Disclosure Officer may be one and the same
person and in most investigations it is likely that this will be the case.

The Prosecutor, however, must not perform any of the other functions.


                               THE DISCLOSURE PROCESS

3.0    RECORDING OF MATERIAL

3.1    All material must be recorded in a durable and retrievable form.

       When material is obtained that is not in durable form, for example a conversation or
       telephone call, the salient points must be transferred to a durable form at the first
       opportunity.

       Such transference may be into an Officer‟s Official Notebook, an entry on the Service
       Request Sheet or by using the form at Appendix 9.

3.2    „Negative material‟, including that which tends to argue against the Investigator‟s case, is
       relevant and must be recorded.

3.3    Where information which may be relvant is obtained it must be recorded at the time it is
       obtained or as soon as practicable after that time.

4.0    RETENTION OF MATERIAL

4.1    The Investigator must retain all material obtained in a criminal investigation and which
       may be relevant.

4.2    This includes material which comes into his/her possession or which is generated by
       him/her, i.e. correspondence.

4.3    Material should, wherever possible, be in original form .

       Obvious exceptions include:

       a) material which is perishable (this may be photographed)

       b) material which has been supplied to the Investigator and is to be returned to him/her
       (this may be copied/photographed)

       c) material not in its original form when obtained

4.4    It may be that some material is not retained because it was not thought relevant at the
       time, but later developments indicate that it may, after all, have relevance.

       In such cases, the Investigator must make all reasonable attempts to obtain the material
       again, or to record such details about it as may be possible.

4.6    All material which may satisfy the test for prosecution disclosure.

GEN-33/March 2009/35132                                                                           82
4.6   All material which may be relevant must be retained:

      a) At least until the case is concluded (including any possible Appeals).

      b) In the case of a conviction, for a further 6 months following conviction

5.0   SCHEDULING OF MATERIAL

5.1   A Schedule is to be prepared:

      a) When the accused is charged with an offence triable only on indictment

      b) When the accused is charged with an offence which is triable either way and where it
      is considered likely that a plea of not guilty will be entered.

      c) When the accused is charged with a Summary offence and a not guilty plea is
      considered likely.

5.2   All material which has been retained in accordance with the provisions of the Code and
      which may be relevant and which does not form part of the Prosecution case must be
      listed on the Schedule. For the purposes of this Procedure, Schedules are termed
      „Disclosure Officer‟s Reports‟ (see Appendices 3-6). These Reports must be passed by
      the Investigator to the Prosecutor.

5.3   The Reports must describe each item of material in sufficient detail to enable the
      Prosecutor to determine whether it should be included with items for disclosure to the
      defence.

5.4   Separate Reports should be prepared listing those items which the Investigator considers
      to be sensitive material and submitted at the same time.

5.5   Disclosure Officers should note that each of the Reports which they submit to the
      Prosecutor must contain a Certificate as noted in Appendices 3-6.

5.6   Wherever possible, the Reports are to be submitted at the same time as the main
      prosecution file.

5.7   The following must be passed by the Disclosure Officer to the Prosecutor Together with
      the Reports,:

      a) information provided by the accused which gives an explanation for the offence for
      which charges have been or are to be brought

      b) any material which casts doubt on the reliability of a confession

      c) any material which casts doubt on the reliability of a witness. Investigating Officers
      must note that this will include previous convictions.

      Any previous convictions of any witnesses, including NBBC Officers, must (unless
      „spent‟) be revealed at this stage.

GEN-33/March 2009/35132                                                                     83
      d) any other material which the Investigator believes may fall within the Test for
      disclosure (see paragraph 6.1, below).

6.0   CONTINUING DUTY OF DISCLOSURE

6.1   The test for disclosure by the Prosecutor to the accused must be satisfied in respect of
      each item of material. That test is:

             “..............any prosecution material which has not previously been disclosed to the
             accused and which, reasonably he considered capable of underming the case for
             the prosecution against the accused or of assisting the case for the accused”

6.2   The mechanism by which disclosure is made to the Defence is a matter for the Prosecutor
      and, as such, need not be detailed in these Procedures.

      Applies at all stages of the procedure.

7.0   DEFENCE DISCLOSURE

7.1   Within fourteen days of the receipt of disclosed material, the defence may respond with
      its disclosure in the form of a Defence Statement.

7.2   This statement will be forwarded to the Prosecutor:

      a) in all cases where the defendant is to be tried in the Crown Court.

      b) if the Defence elects to produce one in cases to be tried in the Magistrates‟ Court.

      There is no compulsion to produce a Statement but the motivating factor is that, if one is
      not produced, the Defence has no entitlement to a Secondary (Prosecution) Disclosure.

7.3   If submitted, the Defence Statement must:

      a) set out, in general terms, the nature of the Defence

      b) indicate the matters on which the accused takes issue with the prosecution and the
      reasons why.

      c) give particulars of any alibi relied upon.




GEN-33/March 2009/35132                                                                         84
                                                                                      APPENDIX 1
                        ASSEMBLE ALL MATERIAL OBTAINED                1


                                                       2
                                                                              CONFIRM THAT
                                   IS MATERIAL                                  MATERIAL IS
                  YES                                           NO                              3
                                    RELEVANT?                                 INCAPABLE OF
                                                                           IMPACT ON THE CASE

                                                       4
                                HAS ALL MATERIAL
            YES                                                      NO
                                BEEN RECORDED?

  6                                                                            5
           RETAIN                                          MAKE RECORD IN A
      MATERIAL/RECORD                                       DURABLE FORM




                                IS THE OFFENCE TO
            YES                                                      NO
                                 BE PROSECUTED?



                                 CASE OFFICER TO                            NO FURTHER DUTY
                                  PREPARE FILE
                                                           7               TO RETAIN MATERIAL



                               DISCLOSURE OFFICER
                                    APPOINTED              8



                              SCHEDULES PREPARED           9



                             PREVIOUS CONVICTIONS &                             FOR AN
                               DISCIPLINARY FINDINGS       10             EXPLANATION OF
                              INFORMATION OBTAINED                        BOXES ANNOTED
                                                                          WITH A NUMBERED


                              PROSECUTING OFFICER
                                                           11
                                   APPOINTED                               SEE APPENDIX 2



                                 CERTIFICATION BY
                                                           12
                               DISCLOSURE OFFICER



                                  DISCLOSURE TO
                                   PROSECUTOR
                                                           13



                        14       TASK COMPLETED




GEN-33/March 2009/35132                                                                             85
                                                                                 APPENDIX 2

                        EXPLANATORY NOTES TO APPENDIX 1

NOTE 1      See paragraph 2.1 of Code of Practice. (COP)

NOTE 2      See paragraph 2.1 of COP and the “Test for Relevance” at paragraph 2.1 (g) of
            main text.

NOTE 3      Before discarding or failing to record any material, officers are advised to seek a
            second opinion on possible relevance, either from Line Management or Legal
            Services.

NOTE 4      Material must be recorded in durable and retrievable format. Where it was not
            originally received in this form, ie a telephone conversation, it must be transferred
            by File Note (see Appendix 9), Computer entry, Notebook entry etc.

NOTE 5      See paragraphs 4.1 to 4.4 of COP and Note 4, above.

NOTE 6      Retain material for subsequent use. See paragraphs 5.1 to 5.5 of COP and
            paragraphs 4.0-4.5 of main text.

NOTE 7      Refer to the procedure for „Preparing for a Prosecution‟.

NOTE 8      For duties of a Disclosure Officer, see main text.

NOTE 9      Use the form at Appendix 5 for non-sensitive material, Appendix 6 for sensitive.
            See also paragraphs 6.1 to 6.11 of COP and paragraph 6.0-6.2 of main text.

NOTE 10     The previous convictions of all Witnesses (including NBBC Officer Witnesses)
            must be obtained if possible and forwarded by the Disclosure Officer to the
            Prosecutor (Legal Services).

            If details cannot be obtained from the Police, then each Witness should be asked
            for details of relevant convictions and the fact that the information was obtained in
            this way must be passed to the Prosecutor.

NOTE 11     The Prosecutor will usually be a Solicitor of Legal Services.

NOTE 12     Material is revealed by the Disclosure Officer to the Prosecutor, using the
            appropriate form from the options at Appendices 3-6. See also paragraphs 7.1, 7.2
            and 7.3 of COP.

NOTE 13     The Certificate at Appendix 5-8, as appropriate, must be completed by the
            Disclosure Officer, before being forwarded to the Prosecutor. See paragraph 9.1
            COP and paragraph 8, 0-8.3 of main text.

NOTE 14     “Task Completed” refers only to the requirement to Record, Retain and Reveal.
            Additional Disclosure tasks are required. See Appendix 3.



GEN-33/March 2009/35132                                                                       86
           FOR AN
      EXPLANATION OF                                                                    APPENDIX 3
       BOXES ANNOTED
      WITH A NUMBERED
                                                 DISCLOSURE
                                                TRIGGERED BY
                                                                         1

       SEE APPENDIX 4



                                                                      COMMITTAL TO
                        PLEA OF NOT GUILTY
                                                                      CROWN COURT

                                                      2

                                              CONSIDER UNUSED
                                             MATERIAL AND APPLY
                                              DISCLOSURE TESTS




               NON-SENSITIVE
                 MATERIAL
                                                                              SENSITIVE MATERIAL         3

                                                                  4

                                                   PRIMARY                    PLEAS & DIRECTIONS
                                                PROSECUTION                    HEARING/PRE-TRIAL
                                                 DISCLOSURE                          REVIEW




  5                                      5                                    6
      COMPULSORY DEFENCE                     VOLUNTARY DEFENCE                    DEFENCE STATEMENT
           STATEMENT                             STATEMENT                           NOT RECEIVED

                                    7

                         REVISIT MATERIAL IN                                         NO OBLIGATION FOR
                          LIGHT OF DEFENCE                                               SECONDARY
                              STATEMENT                                                PROSECUTION
                                                                                        DISCLOSURE



                                CONSIDER
                   3           SENSITIVITY


                                                                                  9
                             SECONDARY
                                                                 DISPUTE
                   8        PROSECUTION
                                                               RESOLUTION
                             DISCLOSURE




                LEGEND

              SHADED BOXES
             INDICATE ACTION                      TRIAL
            BY LEGAL SERVICES
                  ONLY




GEN-33/March 2009/35132                                                                             87
                                                                           APPENDIX 4
EXPLANATORY NOTES ON APPENDIX 3


NOTE 1      No duty to disclose exists unless and until there is either a plea of „Not Guilty‟
            entered, or the accused has been committed for trial at the Crown Court.

NOTE 2      See paragraph 5.0-5.7 of main text.

NOTE 3      It will be the task of Legal Services Officers to make any necessary
            Applications to the Courts. Sensitive material (not to be disclosed without an
            instruction to do so from the Court) will normally include complainant‟s
            details and, in the case of industrial or commercial premises, may include trade
            secrets etc.

NOTE 4      Disclosure must be made “as soon as reasonably practicable”.

NOTE 5      Defence Statements are mandatory in the case of Crown Court actions but are
            voluntary at Magistrates‟ Courts.

NOTE 6      If no Statement is made within 14 days of the Prosecution‟s disclosure, the
            defence are not entitled to secondary disclosure.

NOTE 7      If a Defence Statement is forwarded, the Disclosure Officer must look again at
            the unused material and must reveal to the Prosecutor any additional material
            which may assist the defence, in light of the information contained in the
            Defence Statement only.

NOTE 8      See Section 7 of the main Act and paragraph 8.0 - 8.3 of the main text of this
            Procedure.

NOTE 9      Officers should be aware that the Act allows for the resolution of disputes
            between parties but the legal processes which are required will be undertaken
            solely by the Prosecutor.




GEN-33/March 2009/35132                                                                    88
                                                                                                                                    APPENDIX 5

                                            DISCLOSURE OFFICER’S REPORT
                                       DISCLOSURE OF NON-SENSITIVE MATERIAL

CASE REF: .............. INVESTIGATOR ................................ OFFICER IN CHARGE ..................................

DISCLOSURE OFFICER .................................... PROSECUTOR ........................................ PAGE of PAGES

 SERIAL                                               DESCRIPTION                                                                      REMARKS




DISCLOSURE OFFICER‟S CERTIFICATE

 I certify that, to the best of my knowledge and belief, all material which has been retained and made available to
 me has been revealed in accordance with the Code of Practice


 Signed ............................................... Name ........................................................... Date .............................

GEN-33/March 2009/35132                                                                                                                             89
                                                                                                                      APPENDIX 6
                                        DISCLOSURE OFFICER’S REPORT
                                     DISCLOSURE OF SENSITIVE MATERIAL

CASE REF: .................... INVESTIGATOR ................................ OFFICER IN CHARGE …………

DISCLOSURE OFFICER ....................... PROSECUTOR ........................... PAGE of PAGES

SERIAL                                                            DESCRIPTION                                                         REMARKS




DISCLOSURE OFFICER‟S CERTIFICATEI certify that, to the best of my knowledge and belief, all material whic
has been retained and made available to me has been revealed in accordance with the Code of Practice

Signed ............................................... Name ........................................................... Date .............................




GEN-33/March 2009/35132                                                                                                                 90
                                                                                     APPENDIX 7
                                          FILING NOTE

THIS FORMAT IS TO BE USED FOR THE RECORDING OF ALL NON-DURABLE
EVIDENCE SUCH AS CONVERSATIONS, TELEPHONE CALLS AND TO RECORD
MESSAGES TAKEN BY ONE OFFICER ON BEHALF OF ANOTHER

 Ser No (*1)      TYPE OF MATERIAL (*2)                       SUBJECT MATTER (*3)                 OFFICER(*




(*1) - Enter the Serial Number of the material as a controlled evidence item

(*2) - Enter material type as „telephone conversation‟, „discussion‟, „message taken‟ etc;

(*3) - Enter a SUMMARY of what took place.

(*4) - Enter the name of the Officer originating the entry.




GEN-33/March 2009/35132                                                                      91
          DATA PROTECTION ACT




GEN-33/March 2009/35132         92
1.    The Data Protection Act 1998 makes provision for the secure holding and processing of
      data, including personal data and allows for its release to third parties only in strictly
      controlled circumstances.

2.    All officers are to familiarise themselves with the Guidance contained at Appendix 1 and
      are to ensure that their actions comply with this Guidance. Generally speaking, there is no
      scope for interpretation or for discretion in applying the Guidance. Cases of doubt or any
      other queries relating to an individual‟s duties under the Act are to be referred, in the first
      instance, to Line Management.


3.    If requests for data are received from other departments within the Council or from any
      external person or Agency, they must be accompanied by a completed Data Request
      Form, an example of which is at Appendix 2.


4.    Completed Forms must be held in a Register which is to be maintained at Team level.




GEN-33/March 2009/35132                                                                           93
                                                                                APPENDIX 1

                         DATA PROTECTION GUIDE
       NUNEATON AND BEDWORTH BOROUGH COUNCIL
                  AN INTRODUCTION TO THE 1998 ACT
Data protection is about protecting us as individuals by using the law to protect our information,
it is also about recognising data as a valuable asset.
The Data Protection Act 1998 regulates the processing of personal data - that is information
relating to living individuals. This includes obtaining, holding, using or disclosing such
information.
Nuneaton and Bedworth Borough Council employees, members and agents may find themselves,
at times, in possession of personal information about colleagues, members of the public,
contractors and clients.
All such information whether held on manual files or electronic systems is confidential and must
be treated with care.


DATA PROTECTION PRINCIPLES


There are eight Data Protection Principles of good practice which underpin the Act:-
   ·   Personal data shall be processed fairly and lawfully and shall not be processed unless
       specific conditions are met.
   ·   Personal data shall be obtained only for one or more specified and lawful purposes and
       shall not be further processed in any manner incompatible with that purpose or those
       purposes.
   ·   Personal data shall be adequate, relevant and not excessive in relation to the purpose or
       purposes for which they are processed.
   ·   Personal data shall be accurate and, where necessary, kept up to date.
   ·   Personal data processed for any purpose or purposes shall not be kept for longer than is
       necessary for that purpose or those purposes.
   ·   Personal data shall be processed in accordance with the rights of data subjects under the
       Data Protection Act 1998.
   ·   Appropriate technical and organisational measures shall be taken against unauthorised or
       unlawful processing of personal data and against accidental loss or destruction of, or
       damage to, personal data.




GEN-33/March 2009/35132                                                                        94
   ·   Personal data shall not be transferred to a country or territory outside the European
       Economic Area unless that country or territory ensures an adequate level of protection for
       the rights and freedoms of data subjects in relation to the processing of personal data.
Notification
Before you set up a new filing system or computer database that will contain personal data (it
could be as little as name and address) you should check that it will be legal to do so and notify
        in the Audit & Review Section, who will be able to help you through the process and
provide any advice or guidance you may need. Plan well ahead as the Data Protection
Commissioner has 42 days in which to decide if your application to process new data is
acceptable.
Individual Rights
People have legal rights concerning the personal data that we hold about them.
Compensation
A person can seek compensation through the Courts if damage has been caused as a result of any
breach of the Act's principles. If damage is proven, then the Court may also order compensation
for any associated distress.
Correction or Deletion
Where personal data the Council holds is inaccurate individuals can complain to the Data
Protection Commissioner or may apply to the Courts for correction or deletion of the data.
Direct Marketing
A person has the right to prevent their personal data being used for direct marketing by objecting
in writing.
Subject Access
A person is entitled, on making a written request, to be supplied with a copy of the personal data
held about them, together with details of the purposes for which the data is processed and of the
sources and recipients of the data. (See below - Requests for Information)
There are some "exemptions" when this right of access does not apply - for example when giving
out the information would be likely to prejudice the prevention or detection of crime.
Requests for information
As soon as you receive any request from an individual wishing to see a copy of the personal data
we hold on them, they should be referred immediately to :-
The Data Protection Officer/Audit & Review Services
There are forms which will have to be completed by the person making the request and they will
have to provide adequate proof of identity together with the payment of a nominal fee.


The Council then has 40 days to provide them with the data.


GEN-33/March 2009/35132                                                                        95
Disclosure of Personal Data
Disclosure is the passing of personal information to another individual or organisation.
Disclosures may only be made in accordance with the principles when:-
   ·   The permission of the data subject has been given.
   ·   The disclosure is by order of a Court, or a statutory duty.
   ·   The disclosure is necessary to stop an injury from happening.
   ·   The persons to whom the disclosure is made is described in the disclosure section of the
       Council's Register entry.
If you are unsure about any disclosure you are asked to make contact your Service Unit Manager
or the Data Protection Officer.
How do I comply?
   ·   Keep personal data up to date
   ·   Keep personal data safe .....
   ·   Don't tell others your password
   ·   Don't leave your computer unattended when looking at personal data
   ·   Don't leave personal data out overnight
   ·   Lock away those floppy discs
   ·   Ensure personal data are accurate
   ·   Consult your Service Unit Manager or Data Protection Officer if you have any data
       protection questions
   ·   Tell people what you are going to use their personal data for and who else you will be
       giving it to
   ·   Plan ahead - Consult the Data Protection Officer before you set up a new filing or
       computer system
The above is only a brief summary of the Act. If you have any queries on this subject then speak
with your Service Unit Manager or the Data Protection Officer.
Remember to look at the Data Protection Intranet site for further advice and guidance.




GEN-33/March 2009/35132                                                                      96
                                                                                APPENDIX 1


                      ENVIRONM ENTAL INFORM ATION PROCEDURE


                                        REQUEST FOR
                                       ENVIRONMENTAL
                                                                1
                                        INFORMATION
                                          RECEIVED




                                                                2

                                     IS THE INFORMATION
                     YES                                                NO
                                        CONFIDENTIAL ?




                                                                    3
 REPLY TO ENQUIRER                                                         ARE THERE ANY
 STATING UNABLE TO                                                       OTHER REASONS TO
                                            YES
      DISCLOSE                                                           REFUSE DISCLOSURE
    INFORMATION                                                           OF INFORMATION?




                           4
 IS THE REFUSAL TO
                                                                                 NO
       DISCLOSE
                               YES
     INFORMATION
    CHALLENGED ?

                                           IS THE
                                         CHALLENGE
                                          UPHELD?                   5
         NO                                                              ACKNOWLEDGEMENT
                                                                           LETTER GIVING
                                                                             DETAILS OF
                                                                            REASONABLE
                               NO                         YES               CHARGES AND
 REPLY TO ENQUIRER                                                         TIMETABLE FOR
 STATING UNABLE TO                                                           DISCLOSURE
      DISCLOSE
    INFORMATION

                                                                         CONSIDERATION OF
                                                                         WHAT INFORMATION
                                                                    6    MAY BE DISCLOSED,
                                                                          BASED ON OTHER
                                                                            LEGISLATION




                                     TASK COMPLETED                           DISCLOSE




GEN-33/March 2009/35132                                                                      97
                                                                                           APPENDIX 2

                   NUNEATON AND BEDWORTH BOROUGH COUNCIL
                             DATA REQUEST FORM

Most data held by this Department is regarded as “personal data” and therefore subject to the provisions of
the Data Protection Act 1998.

Data collected and held by this Department for a specific purpose cannot be used for other purposes
UNLESS the consent of the data subject has been obtained OR another provision of the 1998 Act applies
(e.g. necessity for exercise of function).

Please complete the form below and return it to the Chief Officer.

The function(s) I am exercising is(are):


The enactment the function(s) is conferred by is (are):


The person(s)/premises I require information regarding is/are:


I require the following information:




The Council may be unable to assist with the enquiry if it feels that it is unable to release the information
under the Data Protection Act 1998.

 Data Protection Act 1998 – Section 29 (3)
I am making enquiries that are concerned with the matters detailed above. I confirm that information in
respect of the above personal data is required for that/those purposes.
Officers Name:                                      Signed:

Date:                                                  Tel:                            Fax:
Authority and Dept:


Authorising Officer:                                                        Ref No.

Signed:                                                                     Date:




GEN-33/March 2009/35132                                                                                   98
     ENVIRONMENT AND SAFETY
       INFORMATION ACT 1988




GEN-33/March 2009/35132       99
1.0   Introduction. This document outlines the procedure that is to be followed to ensure that
      the Council‟s statutory obligations under the above legislation (E&SIA) are met in full.
      The following Acts and Sections only fall within the terms of E&SIA, so far as this
      Authority is concerned:

      a) The Health and Safety at Work Etc Act 1974.(HASAWA) Sections 21 and 22.

      b)The Food and Environment Protection Act 1985. (FEPA) Sections 19(5) & (6)

2.0   Background. The principle provisions of this short Act are that Registers must be
      maintained relating to the service of Notices under the relevant legislation (see paragraph
      2a and 2b, above) and information concerning register entries is to be made available, on
      request, in specified circumstances.

      The Act details the methods for maintaining and allowing access to information and
      controls the way in which entries are made, maintained or deleted.

3.0   Maintaining of and Access to Registers. The following action is to be taken following
      the service of formal Notices under HASAWA or FEPA.

      a)     A Register is to be set up, properly indexed to enable entries relating to Notices in
             respect of any premises or, where appropriate, any person, to be located.

      b)     The Register and Index are to be made available for inspection by members of the
             public, free of charge, at any reasonable hour.

      c)     Copies of individual entries are to be provided on request and on payment of the
             appropriate photocopying fee.

      d)     Each entry in the Register is to state sufficient information to convey the
             substance of the Notice to which it relates.

      Clearly, there is scope for flexibility in complying with this requirement and professional
      discretion may sometimes be required. All cases of doubt are to be referred to line
      management.

      e)     The Act provides that the Register may be maintained by means of a computer
             record.

4.0   Entries in Registers. Entries may be made at any time within the limits set in the
      following circumstances:

      a)     Where there is no right of Appeal, within 14 days.

      b)     Where there is a right of Appeal, but no Appeal is lodged within the time limit
             allowed, the entry is to be made within 14 days following the day on which the


GEN-33/March 2009/35132                                                                       100
             Appeal time limit expires.

      c)     Where the right of Appeal is exercised, the entry will be made within the 14 days
             following the final disposal of the Appeal. However, if the Notice is quashed on
             Appeal, no entry is to be made in the Register.

5.0   Deletion of Entries. Register entries are to be deleted in the following circumstances and
      within the time limits specified for each:

      a)       Where the Notice has been complied with, entries are to be deleted within 7 days
               of the Authority being satisfied that there has been such compliance.

      b)       If the Notice is withdrawn, the entry is to be deleted within 7 days of
               withdrawal.

6.0   Maintenance of Entries. In the event that the Authority is not satisfied that there has
      been compliance or that the Notice has not been withdrawn, entries in the Register will be
      maintained for not less than three years from the date that the Notice was served.

7.0   Protection of Trade Secrets. The Act provides that a person served with a Notice can,
      within 14 days, notify the Authority in writing that the making of a register entry may
      involve the disclosure of a trade secret or secret manufacturing process.

      If such written notification is received within the time period no entry is to be made until
      the advice of Line Management and, if necessary, Legal Services has been obtained. In
      such cases, Line Management are to act strictly in accordance with the provisions of
      Section 4 of the Act.




GEN-33/March 2009/35132                                                                       101
  ENVIRONMENTAL INFORMATION
         REGULATIONS




GEN-33/March 2009/35132   102
1.0   Introduction:

1.1   The purpose of this procedure is to offer guidance to deal with the implementation of the
      Environmental Information Regulations 2005.

1.2   The procedure will cover the disclosure of information in the following areas:-

      a) Confidential information
      b) Refusal to disclosure
      c) Extent of information disclosed, level of detail provided
      d) Timescale and nature of response
      e) Disclaimers
      f) Charging
      g) Format of data provided
      h) Publicising information
      i) Data Protection
      j) Definitions

1.3   The response should be as soon as possible and must be within 20 WORKING DAYS.
      Extend to 40 working days for complex cases.

      A reasonable attributable charge can be made

1.4   There is discretion not to give certain types of information, however reasons for refusal
      should be given in writing. However, any request for information need not be in writing.

      The public interest test applies to all grounds for refusing a request.

2.0   Background:

2.1   Disclosure of Environmental Information is covered by the Environmental Information
      Regulations 2009. (See definitions)

      These gave new legal rights of access to environmental information to many public
      authorities and provide additional rights of access to information not held on a public
      register.

3.0   Confidential Information:

3.1   Environmental information should be released unless there is a compelling and
      substantive reason to withhold it.

3.2   Where information has been supplied on a voluntary basis or is personal information, it
      must not be disclosed, unless the agreement of the person who supplied it has been given.

3.3   Information is capable of being treated as confidential if the disclosure of which, would:-



GEN-33/March 2009/35132                                                                       103
      a)     affect international relations, national defence or public security

      b)     affect matters which are, or have been, an issue of legal proceedings or in any
             enquiry (including disciplinary enquiry), or are the subject matter of any
             investigation undertaken with a view to any such proceedings or enquiry

      c)     affect the confidentiality of the deliberation of any relevant person

      d)     involve the supply of a document or other record which is still in the course of
             completion, or of any internal communication of a relevant person

      e)     affect the confidentiality of matters to which any commercial or industrial
             confidentiality attaches, including intellectual property.

4.0   Other Reasons for Refusal to Disclose :

4.1   A request is manifestly unreasonable or phrased too general in manner.

4.2   The regulations do not require withholding of information (except in the circumstance
      where it is supplied voluntarily), they merely enable a refusal to disclose.

4.3   Volunteered information should not be made available, except where it is clearly
      understood that this will be done (as in a consultation exercise) or the information is
      freely available from another source or consent to disclose has been given.

5.0   Challenge to a Refusal to Disclose:

5.1   If the person making the request is refused information and they are not satisfied with the
      reasons given, they can:-

      a)     ask for further clarification

      b)      seek the help of a councillor or MP to pursue the matter

      c)     take legal advice and if they so wish challenge the authority‟s decision to refuse to
             supply information.

      d)     request that the Information Commissioner and Information Tribunal review the
             decision.

6.0   Time Scale and Nature of a Response:

6.1   Environmental health should adhere to its own response times for requests for
      information.


      The regulations allow up to 20 working days, but a response should be given as soon as


GEN-33/March 2009/35132                                                                       104
       possible. An initial response may be an acknowledgement, giving an estimation of time
       for a full answer.

7.0    Disclaimers:

7.1    There is a potential for litigation by an aggrieved party, as a result of problems arising due
       to errors in information supplied. To avoid any liability, any response to an enquiry will
       need a disclaimer regarding items over which you have no control.

7.2    Ideally a response should indicate the scope of any checks for information made, where
       checks have been made, and with whom checks have been made attributing sources.

8.0    Charging:

8.1    It should be clearly indicated how the charge for information will be made

8.2    It should be indicated which information would be provided free of charge, such as that
       held in public registers or that which is solely for viewing

8.3    It may be appropriate to exercise discretion and not apply the full charge for enquiries
       form private individuals as opposed to commercial concerns.

8.4    If the cost of investigating an enquiry is open ended, it may be appropriate to ask how
       much the enquirer is prepared or able to pay

9.0    Publicising Information Held:

9.1    Issuing of reports, library leaflets, Internet web pages, council information points, are all
       means of publicising information held. It should be made clear the types of information to
       which the public are entitled eg. Public registers, licensing and notices.

10.0   Format for Information to be Disclosed :

10.1   Information might be provided on paper or electronically on disk, CD or e-mail and
       should be clear.

11.0   Data Protection Act:

11.1   All information provided must comply with the Data Protection Act ( see relevant
       procedure note)

12.0   Definition of Environmental Information




GEN-33/March 2009/35132                                                                          105
Environmental Information includes information about air, water, soil, land, flora and fauna,
energy, noise, waste and emissions. It also includes information about decisions, policies and
activities that affect the environment.




GEN-33/March 2009/35132                                                                   106
                                                                                APPENDIX 1


                      ENVIRONM ENTAL INFORM ATION PROCEDURE


                                        REQUEST FOR
                                       ENVIRONMENTAL
                                                                1
                                        INFORMATION
                                          RECEIVED




                                                                2

                                     IS THE INFORMATION
                     YES                                                NO
                                        CONFIDENTIAL ?




                                                                    3
 REPLY TO ENQUIRER                                                         ARE THERE ANY
 STATING UNABLE TO                                                       OTHER REASONS TO
                                            YES
      DISCLOSE                                                           REFUSE DISCLOSURE
    INFORMATION                                                           OF INFORMATION?




                           4
 IS THE REFUSAL TO
                                                                                 NO
       DISCLOSE
                               YES
     INFORMATION
    CHALLENGED ?

                                           IS THE
                                         CHALLENGE
                                          UPHELD?                   5
         NO                                                              ACKNOWLEDGEMENT
                                                                           LETTER GIVING
                                                                             DETAILS OF
                                                                            REASONABLE
                               NO                         YES               CHARGES AND
 REPLY TO ENQUIRER                                                         TIMETABLE FOR
 STATING UNABLE TO                                                           DISCLOSURE
      DISCLOSE
    INFORMATION

                                                                         CONSIDERATION OF
                                                                         WHAT INFORMATION
                                                                    6    MAY BE DISCLOSED,
                                                                          BASED ON OTHER
                                                                            LEGISLATION




                                     TASK COMPLETED                           DISCLOSE




GEN-33/March 2009/35132                                                                      107
                                                                                      APPENDIX 2

EXPLANATORY NOTES

The notes that follow are numbered to match the diamond shaped lozenges attached to certain
boxes in the flowchart at Appendix 1

Note 1             Information should be provided by Environmental Health providing the request
                   falls within the definition of „Environmental Information‟ as described in the
                   procedure.

Note 2             Information should not be released if it is deemed confidential as described in
                   paragraph 2.0 of the procedure

Note 3             The Officer should consider any other reasons for refusal to disclose the
                   requested information as described in paragraph 2.1 of the procedure.

Note 4             If the person making the request is not satisfied with the reason for refusal to
                   disclose the information they may make a challenge. Paragraph 2.4 in the
                   procedure.

Note 5             The Officer should send a letter of acknowledgement to the customer detailing
                   the appropriate charges that will be made, a timescale for disclosure and a request
                   from the customer to proceed with the investigation following this letter.
                   Paragraph 2.5 of the procedure.

Note 6             The Officer should also consider what information should be disclosed based on
                   other relevant legislation listed below. Paragraph 3.3 of the procedure refers.

                             The Police and Criminal Evidence Act
                             Data Protection Act
                             Codes of practice for elected members, Local Government Act
                             Human Rights Act
                             Health and Safety at Work Act
                             Local Government Act

                             Also,

                             Freedom of Information Bill
                             Rights to see a Notice
                             Protecting the identity of the complainant




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                       HUMAN RIGHTS ACT




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1.0      Introduction:

1.1      The Human Rights Act 1998 was brought into force on October 2nd 2000. From that
         date, rights and freedoms guaranteed under the European Convention on Human Rights
         were incorporated into domestic law. The Act achieves this by:-making it unlawful for a
         public authority to act incompatibly with the convention rights and therefore that
         authority can be taken to Court .

         b) relying on the convention rights in the course of any other proceedings involving a
                 public authority. Public Authorities may include:-

                   - A minister
                   - A Government department
                   - Local Authority
                   - Health Authorities and Trusts
                   - Armed Forces
                   - Police
                   - Courts and Tribunals
                   - A person or organisation who carries out a function of a public nature.

1.2      The Convention Rights cover all aspects of the Public Authorities activities including:-

                   a)   Drafting rules and regulations
                   b)    Internal staff and personnel issues
                   c)   Administrative procedures
                   d)    Decision making
                   e)   Policy implementation
                   f)   Interaction with members of the public

1.2      The Convention guarantees the following rights and freedoms:-

                   right to life
                   freedom from torture and inhuman or degrading treatment or punishment
                   freedom from slavery and forced or compulsory labour
                   right to liberty and security of person
                   right to a fair trial within a reasonable time
                   freedom from retrospective criminal law and no punishment without law
                   right to respect for private and family life, home and correspondence
                   freedom of thought, conscience and religion
                   freedom of assembly and association
                   right to marry and found a family
                   prohibition of discrimination in the enjoyment of the convention rights
                   right to peaceful enjoyment of possessions and protection of property
                   right to education
                   right to free elections
                   right not to be subjected to the death penalty

1.3      The rights can be relied by any person, non-governmental organisation, companies or
         group of individuals but not by governmental organisations.




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1.4      There is a hierarchy of convention rights, some are absolute, some can be limited and
         some are qualified.

2.0      Impact of Human Rights on Environmental Health :

2.1      The following areas of the Human Rights Act should be considered for Environmental
         Health:-

         a) Article 6 - right to a fair hearing.

                   1.        In the determination of his civil rights and obligations or of any criminal
                             charge against him, everyone is entitled to a fair and public hearing within
                             a reasonable time by an independent and impartial tribunal established by
                             law. Judgement shall be pronounced publicly but the press and public
                             may be excluded from all or part of the trial in the interests of morals,
                             public order or national security in a democratic society, where the
                             interests of juveniles or the protection of the private life of the parties so
                             require, or to the extent strictly necessary in the opinion of the court in
                             special circumstances where publicity would prejudice the interests of
                             justice.

                   2.      Everyone charged with a criminal offence shall be presumed innocent
                   until proved guilty according to law

                   3.        Everyone charged with a criminal offence has the following minimum
                             rights:

                             to be informed promptly, in a language which he understands and in
                             detail, of the nature and cause of the accusation against him;

                             to have adequate time and facilities for the preparation of his defence;

                             to defend himself in person or through legal assistance of his own
                             choosing or, if he has not sufficient means to pay for legal; assistance, to
                             be given it free when the interests of justice so require.

                             to examine or have examined witnesses against him and to obtain the
                             attendance and examination of witnesses on his behalf under the same
                             conditions as witnesses against him;

                             to have the free assistance of an interpreter if he cannot understand or
                             speak the language used in court.

         b) Article 8 - respect for private and family life.

                   1.        Everyone has the right to respect for his private and family life, his home
                             and his correspondence.

                   2.        There shall be no interference by a public authority with the exercise of
                             this right except such as in accordance with the law and is necessary in a
                             democratic society in the interests of national security, public safety or
                             the economic well-being of the country, for the prevention of disorder or

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                             crime, for the protection of health or morals, or for the protection of the
                             rights and freedom of others.

         c) Protocol 1. Article 1 - Protection of Property :

                   Every natural or legal person is entitled to the peaceful enjoyment of his
                   possessions. No one shall be deprived of his possessions except in the public
                   interest and subject to the conditions provided for by law and by the general
                   principles of international law. The preceding provisions shall not, however, in
                   any way impair the State to enforce such laws as it deems necessary to control
                   the use of property in accordance with the general interest or to secure the
                   payment of taxes or other contributions or penalties.

3.0      Consideration of Human Rights During an Investigation:

3.1      The Act requires that all Acts of Parliament, Regulations, Orders so far as is possible, be
         read and given effect in a way which is compatible with the Convention rights. Officers
         should be considering the above mentioned issues at the very beginning of an
         investigation as this could be questioned in court and may be a deciding factor in the
         outcome of a case. The Human Rights Act is not confined to any particular sections of
         legislation or areas of investigation undertaken by Environmental Health but should be
         considered in all aspects of our work.

4.0      Proportionality:

4.1      Any interference with a Convention right must be proportionate to the intended
         objective. This means that even if a particular policy or action which interferes with a
         convention right is aimed at pursuing a legitimate aim (e.g. Prevention of crime) this will
         not justify the interference if the means used to achieve the aim are excessive in the
         circumstances. Any interference with a convention right should be carefully designed to
         meet the objective in question and must not be arbitrary or unfair. (See also Enforcement
         Concordat Procedure)

5.0      Victim:

5.1      Only an individual or company or relative of a victim can be considered a victim.

         Governmental organisations such as Local Authorities cannot be victims.

6.0      Enforcement and remedies for Human Rights:

6.1      If a person thinks that a public authority has breached their Convention Rights they can:-

         a) Take the authority to court for breaching their rights.
            Proceedings have to be brought within a year or less but the courts can allow for a
            longer period. Judicial review may be shorter.

         b) Rely on the Convention rights in the course of any other proceedings involving a
         public authority

              If a Court finds that a public authority has breached someone‟s Convention Rights it
              can award whatever remedy is open to it and seems just and appropriate, which may

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              include damages

         b) take cases to the European Court of Human Rights in Strasbourg if all the domestic
            routes have been exhausted.




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             HUMAN RIGHTS ACT CHECKLIST                                                       APPENDIX 1
                                                                                     1
                                                                 ARE THE
                                                           CONVENTION RIGHTS
                                               YES                                       NO
                                                           IMPLICATED IN YOUR
                                                                  WORK?

                            IS THERE A VICTIM ?      2

                                                                                              CONTINUOUS
                                                                                                REVIEW


                            NO               YES


                                                     3                                      YOU MAY BE IN
                                                                                            BREACH. SEEK
                                  CAN THE                                                   LEGAL ADVICE
                                                                       NO
                           CONVENTION RIGHT                                              BEFORE CONTINUING
                              BE INTERFERED
                           WITH LEGITIMATELY?



                                    YES

                                                     4                                      YOU MAY BE IN
                                                                                            BREACH. SEEK
                           IS YOUR ACTION (OR                                               LEGAL ADVICE
                                                                       NO
                                 INACTION)                                               BEFORE CONTINUING
                              PRESCRIBED BY
                                    LAW?



                                    YES
                                                                                            YOU MAY BE IN
                                                                                            BREACH. SEEK
                                                     5
                                                                       NO                   LEGAL ADVICE
                            ARE YOU PURSUING                                             BEFORE CONTINUING
                            A LEGITIMATE AIM?



                                    YES
                                                                                            YOU MAY BE IN
                                                     6                                      BREACH. SEEK
                               IS THE ACTION                                                LEGAL ADVICE
                             PROPORTIONATE                            NO                 BEFORE CONTINUING
                              AND ARE THERE
                              RELEVANT AND
                                 SUFFICIENT
                             REASONS FOR IT

                                                                    IS THE ACTION
                                                                  COMPATIBLE WITH
                                                                  THE CONVENTION'S
                                                                        RIGHTS?




                           NO FURTHER ACTION
                                                                  TASK COMPLETED
                                REQUIRED




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                                                                                             APPENDIX 2

EXPLANATORY NOTES


The notes that follow are numbered to match the diamond shaped lozenges attached to certain
boxes in the flowchart at Appendix 1

Note 1.            Are Convention Rights implicated in my work?

                   The Human Rights Act makes it unlawful for a Public Authority to act in a way
                   which is incompatible with the convention rights

                   We must all take responsibility for consideration of Human Rights and request
                   early legal advice if at all unsure.

                   Make yourself familiar with the Convention Rights that affect our work, in
                   particular:

                   Article 6

                   Article 8

                   Protocol 1, Article 1

Note 2.            Is there a Victim?

                   Could someone argue that they have suffered, or might do, as a result of what
                   you are doing? Eg. If a decision making body has no right of appeal to an
                   independent body there might be a case that their right under Article 6 - Right to
                   a fair Trial has been infringed.

Note 3.            Are there circumstances when the right can legitimately be limited or
                   interfered with?

                   Convention rights are formulated in 3 ways:-

                             a) Absolute ie. freedom from torture

                             b) Limited ie. the right to liberty defines the circumstances when it is
                                acceptable for someone to be detained.

                             c) Qualified ie. Interference with these rights is permissible only if what
                                is done:-

                                      - Has basis in law
                                      - Is necessary in a democratic society
                                      - Is related to the permissible aim set out in the relevant
                                      article


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Note 4.            Is the Action or Inaction Prescribed by Law?

                   This does not just mean that it must be lawful. You also need to think about the
                   clarity, accessibility and foreseeability of the law. The law must also be
                   expressed in a way that people understand.

Note 5.            Are you pursuing a legitimate aim?

                   Look at the rights to find out what may be a legitimate reason for interfering with
                   them. These differ from article to article but interference with Article 8 - The
                   right to Privacy include acts done in the interests of national security or for the
                   prevention of disorder or crime.

Note 6.            Is the Action proportionate and are there relevant and sufficient reasons for
                   it?

                   does it pursue a pressing social need?

                   is the policy, procedure or action proportionate to the aims you are pursuing ie.
                   are you using a sledgehammer to crack a nut?

                   do you have relevant and sufficient reasons for the interference?


References:        Human Rights Act - A New Era of Rights and Responsibilities, Core Guidance
                   for Public Authorities - Home Office.




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            PROCEDURE FOR
          THE USE OF DIGITAL
           AUDIO AND VISUAL
          MEDIA IN EVIDENCE

Guidance can be found in the document entitled „digital Imaging Procedure‟, available on the
Home Office Website.




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NOTE: These Procedures are based on a document produced by the Police Scientific
Development Branch, which has been substantially amended to reflect the use by
Environmental Health Departments of Local Authorities.

Readers who wish to have sight of the original are referred to the document entitled „Digital
Imaging Procedure‟, available on the Home Office Website:

                   www.homeoffice.gov.uk/pcrg/psdb/publications/digimpro.pdf




This Procedure does NOT form any part of the Procedures
Pack offered for sale. It is included solely as a discussion
and consultation document.




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1.0      Introduction

1.1      This Procedure comes into effect only when an offence has been committed or when
         there is the suspicion that there has been an offence.

1.2      This Procedure introduces the protocol for the preparation, capture, protection,
         storage, use and disposal of digitally generated evidential material.

1.3      Because such material is capable of being manipulated, the very greatest care must be
         taken to ensure that its use is properly documented at every stage, in the form of an
         Audit Trail. This Procedure should be read in conjunction with the Procedure for
         Continuity of Evidence, which establishes the principles of evidence control and
         traceability.

1.4      Due to the opportunities that exist for challenging digital material used in Court, Case
         Officers should avoid using it in circumstances where it is not essential. For example,
         conventional photography is to be preferred to the digital type and should continue to
         be used in the majority of cases where photographic evidence is crucial to the case.

         However, it is recognised that there are times when a variety of digital media will be
         useful, and its use is unavoidable in most noise nuisance investigation tasks.

2.0      Definitions (check – any other up to date technology?)

2.1      The following definitions should be used in the context of these Procedures:

         a) Digital Evidential Media (or material). (DEM) Any material used as evidence or
         collected in the course of an investigation, which has been generated using digital
         technology, or where such technology has been used at any stage in processing it.

         Examples include digital cameras, Sound Level Meters, Data-Loggers, DAT Sound
         Recorders, Video Cameras, Video Surveillance Equipment or the use of any computer
         technology to enhance or change any sound or image, such as PCs, Scanners or
         specialised software. It will also include the raw data from which any charts or graphs
         may be produced, via spreadsheets.

         b) Master Copy. In most cases, this will be the original of the material, held in secure
         storage from the time it is first generated. In the case of raw data downloaded from a
         sound level meter or other data-logging device, the Master Copy will be a CD ROM of
         the raw spreadsheet data that results, securely held in Read Only format.

         c) Working Copy. A copy produced from the Master Copy by the Case Officer, which
         remains in his/her possession throughout the conduct of the case and which can be
         amended to show the points of evidence more clearly, or upon which information can
         be added or deleted as required.

         At all times, it must be possible to demonstrate a direct comparison between the
         Working Copy and the Master Copy.

         d) Read-Only CD ROM. A CD on which files can be written (using a CD Writer),
         stored and retrieved but which cannot be changed or deleted. This makes it the ideal,

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         durable storage medium for Master Copies. The read-only version of the CDs
         normally has the letters CD-R on the packaging, as opposed to the re-writable discs,
         which normally contain the letters CD-RW. Re-writable CDs should NOT be used as
         Master Copies, as the information can be deleted or changed at will.

         e) Audit Trail. The means established to enable the movements of DEM to be closely
         monitored at every stage. It relies heavily upon the original material being preserved
         under secure conditions, as a Master Copy, to which any Working Copy made can be
         exactly compared.

         f) Evidence Librarian. The Team member, normally a Clerical Assistant, who is
         responsible for the secure storage of evidence and the maintenance of the Audit Trail,
         in line with the Procedure „Continuity of Evidence‟.

         g) Write Protection. The method used to prevent the deletion of material from a video
         or audio tape. To write protect a video tape, the small plastic leaf at the back of the
         tape is snapped off. For DAT tapes, write protection involves sliding a plastic lever to
         expose a small cavity.

         Such precautions will not prevent unauthorised tampering (hence the need for
         documented secure storage), but will avoid inadvertent deletion of the data.

3.0      Layout

3.1      The principles of digital evidence controls are set out in the flowchart at Appendix 1
         under four discrete headings:

         a) Preparation This deals with the administrative and technical processes that must be
         completed even before any digital evidence is taken, such as training, the need to
         authorise all Officers involved, commencement of the Audit Trail and ensuring the
         correct settings and operation of equipment.

         No attempt should be made to obtain digital evidence until all of the above
         requirements have been satisfied in respect of an individual Officer or case.
         Team Leaders are responsible for ensuring that these and other associated Procedures
         are brought to the attention of new members of staff as part of their Induction
         Training.

         Officers are reminded of the overriding need for separate authorisations under RIPA in
         appropriate circumstances.

         b) Capture The gathering of digital evidence is covered in this section, under the
         headings of the commonly used media of Camera, Audio/Video Tape and Computer
         generated data, each of which requires its own method of processing.

         Particular attention is drawn to the absolute needs:

                   i) Not to dispose of or delete ANY material gathered and,

                   ii) To transfer all material to a durable Master Copy medium and ensure Audit
                   Trail protection as soon after capture as possible, to reduce the opportunities

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                   for legal challenge.

         c) Protection The technical ways in which the evidence can be protected, in its
         various forms are dealt with under this heading.

         As an added protection, the transference of certain media to Master Copy format
         should be performed by the Evidence Librarian where this is possible, rather than the
         Case Officer.

         d) Storage, Use and Disposal In this section, the administrative requirements relating
         to evidential protection are laid down.

         Most of the requirements will be familiar to Evidence Librarians from their existing
         duties under the „Continuity of Evidence‟ Procedure.

3.2      The information contained in the flowchart at Appendix 1 is expanded upon as
         necessary in the Explanatory Notes at Appendix 2.




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                                           DIGITAL IM AGES AS EVIDENCE                                 APPENDIX 1



        FOR AN                      1          Training
   EXPLANATION OF
        BOXES




                                                                                                             PREPARATION
   ANNOTATED WITH
     A NUMBERED                     2        Authorisation



    SEE APPENDIX 2                  3         Audit Trail



                                           Check operation
                                    4
                                            of equipment


                                    5       Make recording




                                                                                                             CAPTURE
                         6                                         7                                   8
                                              Video or                               Computer Hard
  Camera Memory
                                          Audio(DAT) Tape                                Drive


                                                                                9




                                                                                                             PROTECTION
                        9
   Dow nload and                            Activate Write                           Dow nload to CD
  copy to CD ROM                             Protection                                   ROM




               10            Define Master and produce Working Copy
                                                                                                             STORAGE, USE AND DISPOSAL



                11            Master                          Working Copy          12



                        Document and                             Prepare
                13                                                                  14
                        store securely                       Prosecution File




                 15             Produce Exhibits during Court Case




                 16                     Retain in secure storage




                 17         Dispose of Exhibits and complete Audit Trail




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                                                                                     APPENDIX 2

EXPLANATORY NOTES ON APPENDIX 1

The numbering of the notes below corresponds to the numbers shown against boxes in
Appendix 1.

Note 1             Before being authorised, in-house training will be required as follows for all
                   Officers involved in the use of digital images or digital audio for evidential
                   purposes:

                   a) Field Officers. Those involved in capturing images or audio will be required
                   to demonstrate or certify that they:

                             i) Are fully competent in the operation of all digital media that they
                             may use, including any associated computer software and any
                             calibration requirements that may apply.

                             ii) Have read and understood these Procedures and are familiar with the
                             requirements of RIPA, CPIA and PACE as they apply to the collection,
                             handling, use, disclosure and disposal of evidence.

                             iii) Are familiar with Council Procedures for ensuring the continuity of
                             evidence and for the audit trail requirements in particular. These are
                             laid down in EH Enforcement Procedures, Volume One.

                   b) Supervising Officers. Officers having responsibility for the conduct of
                   investigations will be required to demonstrate or certify that they:

                             i) Know which items of equipment and which processes are covered by
                             these Procedures.

                             ii) Are familiar with the Council Procedures for preparing a
                             Prosecution and with the legislation and Procedures mentioned in a) ii)
                             and a) iii), above.

                             iii) Know and understand the arrangements for authorising Officers
                             under this Procedure and, on a case-by-case basis, under RIPA, when
                             appropriate.

                   c) Team Evidence Librarians Clerical Officers having responsibility for the
                   secure holding of evidence will be required to demonstrate or certify that they:

                             i) Are familiar with these Procedures as they relate to the special
                             handling requirements for digital evidence media.

                             ii) Are familiar with Council Procedures for ensuring the continuity of
                             evidence and for the audit trail requirements in particular.




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Note 2             On being satisfied that the required level of training has been received,
                   individual officers will be authorised by the Chief EHO or Public Health
                   Manager, according to the functions that they will be expected to perform
                   under these Procedures. The Authorisation will be in the format contained in
                   Appendix 3.

Note 3             Before capturing any digital evidence, full regard must be had to the ways in
                   which the continuity of such evidence is to be protected at every stage. In
                   particular, an Audit Trail must be established whereby every detail of
                   Authorisation, capture, storage, copying and access restrictions can be proved
                   by means of documentation.

                   Full details of the principles involved, including the Tape Library and
                   Evidence Register are to be found in the Procedure titled „Continuity of
                   Evidence‟. Special attention is drawn to the procedural flowchart and
                   explanatory notes (Appendices 1 and 2, respectively) of that document, which
                   are to be followed meticulously.

Note 4             Before attempting to use digital media for the capture of evidence, operator
                   checks are to be carried out, as appropriate, including the following:

                             a) Battery check
                             b) Write protection
                             c) Date/Time Stamp
                             d) Memory availability (Digital Camera)
                             e) Download/Clearing of previous data. The medium used should be re-
                             formatted, erased, or new.
                             f) Calibration Tone (at least 30 seconds for DAT)
                             g) Equipment Settings

         If considered necessary, and particularly in the case of infrequently used equipment, a
                        simple checklist should be created specifically for that type of medium.
                        This will be in addition to the manufacturers‟ operating instructions.

Note 5             In order to comply with the requirements of CPIA it is essential that, once
                   captured, no data must be deleted until a Master Copy of the medium has
                   been made (see Note 10, below). This includes digital pictures that did not
                   „turn out right‟, sound recordings of generally poor quality or media containing
                   unwanted or irrelevant evidence.

                   As many operations to capture digital data are made by the clients themselves,
                   rather than Council Officers (for example, most DAT recordings and perhaps
                   some video footage), documentation will be necessary to indicate the
                   distinction.

                   For Audit Trail purposes involving „third party‟ media capture, the protection
                   of evidence can only be fully established if the user is prepared to submit a
                   Witness Statement detailing their part in the proceedings. In particular,
                   reference should be made to the fact that no deletions have been made,



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                   although this is not necessary in the case of MATRON, as third party deletions
                   are not possible.

                   Such a Statement will be required to fill the gap between equipment set-up by
                   the officer, and such time as the medium returns to their control.

                   If deletions are inadvertently made, for example to a digital camera‟s memory,
                   full details must be passed to Line Management immediately, so that a decision
                   may be made on whether and how to proceed with any formal action. Legal
                   Service advice should also be sought as part of the decision making process.

Note 6             On return from a task in which a digital camera has been used for evidential
                   purposes, the memory will be downloaded on to CD ROM by the Team‟s
                   Evidence Librarian. This is to be done at the first available opportunity.

Note 7             The Case Officer is to ensure that, if required, a copy is made before handing
                   the original tape to the Evidence Librarian for processing as Controlled
                   Evidence. This will ensure that access to the controlled evidence Master Copy
                   (see Note 10, below) is kept to a minimum. Upon assuming responsibility for
                   storage the Tape Librarian is to ensure that the tape write-protection tab has
                   been activated.

Note 8             Data generated from a PC, for example charts and graphs of noise events
                   produced from a SLM memory, through a spreadsheet, must be transferred to
                   CD ROM as soon as they have been completed.

Note 9             Camera memory and PC generated data are to be downloaded by the Evidence
                   Librarian onto CD ROM in Read-Only format. Each data set is to be given a
                   unique and sequential file reference.

Note 10            In the case of CD ROMs that have been created from either PC hard drive or
                   digital camera memory, such CDs will always be designated as the Master
                   Copy. For audio or video tapes, the originals must become the Master Copy.

Note 11            The Master Copy of all digitally generated evidence becomes „Controlled
                   Evidence‟ under the terms of the „Continuity of Evidence‟ Procedures. As
                   such, storage and record keeping is the responsibility of the Evidence
                   Librarian. Access to controlled evidence is carefully recorded and it is
                   important that it should be kept to a minimum.

                   A separate Master Copy (or copies in the case of a very large quantity of
                   material) is to be prepared for each prosecution case and the case reference
                   number should be written on the disc in permanent marker pen.

                   All evidence relating to a particular case should be placed on a single Master
                   Copy, until it is full at which time a second will be opened.

Note 12            As the name implies, Working Copies are intended to allow Case Officers to
                   edit the evidence by, for example, imprinting a serial number on a digital




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                   photograph, editing unwanted passages from sound recordings or video
                   footage in order to exclude the irrelevant, or removing low quality material.

                   At all times, the Case Officer must be prepared to state what changes were
                   made, how and why they were made, and be able to compare them with the
                   Master Copy.

                   To avoid the need for constant access to the Master Copy for this purpose,
                   Case Officers should consider making TWO Working copies, one kept
                   unchanged for reference to the original and the other for editing purposes.

                   Working Copies must, initially, be complete and must, in particular, audio
                   tapes should include a 30 second calibration tone, taken from the original.

Note 13            The recording and storage of all controlled evidence must be in line with the
                   „Continuity of Evidence‟ Procedure. If access to controlled evidence by the
                   Case Officer or any other authorised person is required, full details of the
                   reasons and the dates, times and durations of all such access is to be
                   meticulously recorded.

                   Normally, the only reasons that a Case Officer will require access is to make
                   an exact copy for disclosure to the defence, add information to the CD, check
                   comparison with the Working Copy following amendments to it, or to take the
                   Master Copy to Court.

                   When access is required, the Master Copy must be returned to secure storage
                   by the end of each working day.

Note 14            When preparing a case for prosecution at which it is intended that digital
                   audio/visual evidence may be given, Case Officers will need to bear in mind
                   the facilities available to the Courts to reproduce such material in a usable
                   form. It is unlikely that the Courts will have facilities for playing DAT Tapes,
                   for example, and it may be that any such evidence will have to be transferred
                   to analogue format. Very great care must be exercised in such a case, as any
                   direct traceability to the Master Copy will have been lost.

                   Legal advice must be taken before any work is done to produce evidence in
                   any format that does not relate directly to the Master Copy.

Note 15            The Master Copy of evidence must be taken to the Court during proceedings,
                   together with the means to reproduce it in audio/visual terms, if necessary.
                   Though the Master Copy may not be intended for use as evidence, it must be
                   available for direct comparison with any Working Copy evidence produced.

                   The normal rules for recording the absence of the Master Copy from secure
                   storage are to be observed.

Note 16            At the end of each day of Court Proceedings, Master Copies of all evidence
                   must be returned to secure storage and the documentation completed at the
                   time.


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                   At the conclusion of the trial, the evidence must again be returned to secure
                   storage either for the statutory period of retention, or at least until all
                   possibility of further proceedings in the case, including any Appeal time limits,
                   have been exhausted.

Note 17            Following the conclusion of all proceedings, and after observing any statutory
                   requirements, the evidence should be disposed of and the Audit Trail closed.
                   The Audit Trail itself should be retained.




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                                                                             APPENDIX 3



AUTHORISATION TO PROCESS DIGITAL MATERIAL AS EVIDENCE

Having provided satisfactory evidence of training and competence, the officer named below is
hereby authorised to process Digital Material as evidence in their capacity as Case
Officer/Supervising Officer/Evidence Librarian*


Name………………………………………… Designation ……………………………………



(Signed)




(Chief Environmental Health Officer)* (Public Health Manager)*


* Delete as appropriate.




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NOTES




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NOTES




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