Attorney General’s review of disclosure highlights data protection burden on investigators

Changes to pre-charge disclosure brought in by the Attorney General have created ‘digital Tipp-Ex units’ within police forces which waste time and resources the government has admitted.

One unit which costs £1million a year to run has officers and staff spending all their time pixalating body worn video footage so it can comply with disclosure and data protection rules Solicitor General Alex Chalk QC said after visiting forces and discussing the changes to disclosure with them.

The Attorney General has announced changes to the disclosure guidelines introduced in December 2020 in the wake of these concerns which are published today. The changes will come into force on 25 July but the system has been ‘tweaked’ rather than reformed so many of the new requirements will stay in place.

There will also be an added new requirement to justify the use of 'third party' material such as social services reports with a written explanation to be included in the disclosure management document. 

The pre-charge disclosure burden on detectives which Federation reps say have resulted in low morale and investigators wanting to return to uniform roles largely remain in place. There is no sign of a move towards staged disclosure which the Federation has argued for. 

Mr Chalk said that police concerns over redaction were a common theme whether he was “in London or in Yorkshire.”

“Police officers were frankly demoralised by the work they have to do to redact material which they pass to the CPS for a charging decision,” he said.

He added that officers often spent hours redacting that material for personal information which could include names and dates of birth only to receive notifications later that the CPS had decided not to charge or the suspect had entered a guilty plea.

The new guidelines include a Redaction annex which he said “would provide practical work through examples of the sort of incidents police officers will come across and whether it [evidence] requires redaction or not.”

This includes making clear that body worn video footage can be clipped or cropped so that only focused and relevant information needs to be provided to the CPS.

Officers will also be able to make use of “password protections” to comply with the disclosure and data protection rules, he added.

He gave an example of a police officer who attends a domestic assault incident with body worn video. During the course of the incident the BWV may record personal information such as a medical prescription. “The guidance makes clear it will not be necessary in every single case for that redaction to take place as long as the information can be protected by other means including password protection” he added.

He said there were “hundreds of thousands of pounds being spent by forces each year on what is effectively a “digital Tipp-Ex division.”  

He said one of the forces he visited which he refused to name had set up a “dedicated redaction unit at the cost of £1million a year,” which he described as “alarming.”

He added: “This is considerable public money being used for redacting material for cases which may not end up being charged. It is important to note that the CPS do charge about 70 per cent of all the RASSO files received but that still leaves 30 per cent which are not charged and so that is completely wasted effort."

He said his concern was that the need for redaction “was being gold plated” and part of police culture. “We have to make sure we implement the data protection provisions in a way that stays within the four corners of the law but doesn’t go beyond what is necessary.”

The Solicitor General said that to make sure this happens the Redaction Annex had been seen and approved by the Information Commissioner’s Office (ICO).

Elsewhere within the Attorney General’s review there were some familiar concerns about police disclosure training.

The review found that new uplift recruits had just half an hour’s training on disclosure. It also said there was “limited or no dedicated in-person training offered to embed the new guidelines, meaning even recently trained officers are not properly familiar with disclosure requirements.”

One officer interviewed for the review was scathing about the NCALT training they had received for disclosure saying that it would have been much more useful if it had been delivered face to face in work time.

He said: “This type of training should be given face to face rather than via NCALT. Training days worked when a presentation was given by an expert, the fact that the force has resorted to NCALT is causing concern and loss of understanding. There is simply no time to complete NCALT compared to a divisional training day.”

The review also found that “there is a deeply held culture which views disclosure as a merely bureaucratic or tickbox exercise, and that some officers view it as unreasonably assisting the defence."   

But every police force visited noted that investigative requests from the CPS via action plans can be excessive and led to disproportionate work for officers.

Solicitor General Alex Chalk QC

Other changes to the disclosure guidelines includes the handling of 'third party' material. 

Mr Chalk said that “in respect to third party material all too often there was an unthinking approach” by investigators in cases of domestic violence or sexual assault where intrusive material such as medical and social services records or school reports were sought as “a matter of course.”

He said this “was not police officers doing so because they were being intentionally unfair to victims” but led to complainants feeling they were being put on trial.

To end this “unthinking culture” he said a new rule will be introduced so that before any search for third party material is made a written justification for that search  should be included in the disclosure file.