Trauma Management in UK Forces : Information on Disclosure Practices and meeting Curricula

This project has long worked with specialists in disclosure and advisors on curricula to produce this light-touch guidance for forces who already use cognitive techniques and the Police Traumatic Events Checklist.

Presented below is information about disclosure. Please scroll down for information about meeting National Curricula criteria.

Cognitive Techniques (including what was TIPT) and Disclosure: A Note for Trainers (2024)

We know from experience that the range of questions asked in relation to disclosure implications for cognitive techniques vary, they can be broadly summarised as variations on two themes: integrity of evidence and the nature of disclosable materials.

Integrity of evidence: These questions focus on the idea that the techniques used to process incidents may lead to new recall of evidentially relevant information. The fear is that were this to happen officers’ integrity would be open to question.

Nature of disclosable Materials: These questions relate to what could constitute disclosable material and whether a defence team would routinely start pointing towards the cognitive techniques workbooks as some hidden reservoir of material which could be used to undermine prosecutions.

Key concerns which underlie these questions include:

• Defence Teams potentially portraying any change of recall of an incident as unreliable or dishonest.
• Anything written down about an incident potentially becoming evidential purely because it is committed to paper.

Broader themes which arise include:

• Officers’ and Police Staff knowledge and understanding of disclosure is variable.
• Some officers experience of the court system, whether personal or vicarious is profoundly negative, leading to some inherent distrust of the system.

To support all those who train in cognitive techniques (including TIPT), here some common observations based on our experience, academic research and understanding of publicly available guidance (such as The Attorney General’s Guidance on Disclosure). As our audience will understand, should trainers require detailed or case specific legal advice, they should seek this from their own constabulary’s legal department.

This guidance has been compiled by Dr Jess Miller (Principal investigator at The University of Cambridge) Brian Maudling (Durham Constabulary’s Police Education Qualifications Framework Team leader, former Head of Counter Corruption and Integrity Unit and Case Manager in Durham’s Criminal Justice unit) and Simon Barry, MSc, BSc (hons), FGS (former Operational Trainer with Suffolk Constabulary).

Written notes while using cognitive techniques in policing

Officers and staff should be reminded to treat any material they produce in accordance with police regulatory and legal requirements and that as standard, officers should already be aware of their responsibilities to report any new information about an investigation to the Senior Investigating Officer.

New recall using techniques

Some cognitive techniques may boost healthy memory of what happened where and when. This is no different to any one individual choosing to think about an incident in their mind while they are running, meditating, revisiting a scene or having a conversation. In policing terms, this may be little different to student’ reflections on entries they have made on incidents into their notebooks.

A related question here might be, “could a defence lawyer or the IOPC question my integrity if I had to change or update my statement as a result of utilising the cognitive techniques?” The legal system and the nature of IOPC investigations have historically questioned integrity on the basis of individuals updating or making any change to a statement. However, there is plenty of neuroscience evidence to suggest that the quality and accuracy of episodic and allocentric memory of an event (what happened where and when) while in a stress response can be impaired -and that healthy activation of hippocampal memory systems (once that stress response has subsided) thanks to some cognitive techniques enables more coherent and contextualised memory formation.

What are the effect on memory of cognitive techniques used to healthily process trauma

Cognitive techniques shared in this project require trainees to bring to mind all the other factors about an incident about which they may have forgotten or not noticed, because of their habitual concentration around what is expected of them to remember as officers and staff (key events, cause and effect etc). As such, the techniques expand memory of that happened where and when around the incident to include non-essential factors such as acts of kindness, the weather, the banal and to open their imagination to all the things that they might not know as to why something happened the way it did.

These techniques do this to reduce the contraction around the hard facts to provide a more complete, neutral depiction of an event to bring down the stress response so that the mind can more readily file the event as ‘over’.

In our Randomised Controlled Trial, while 62.7 % of participants did recall new details about the incident, the nature of the details were all superfluous to the significance of what happened (which is why they were needed to be called up more deliberately). In ongoing evaluation of over 500 sessions and monitoring of over 6000 participants in the history of these techniques, there has never been reported a case where any individual has recalled anything that is of evidential value to a case and could be called for disclosure. This is likely because the techniques are designed to help recall the opposite.

This is not to proclaim that absolutely no relevant information may be gleaned from the techniques may be relevant to an investigation, but that the science behind them and the evidence collected since 2017 suggests this to be highly unlikely.

A Typical Process of Disclosure

The several stages of preparing a case for court offers ample opportunity to disclose without the need for a sudden disclosure. Cases which are protracted (such as those involving sexual offences or perhaps internal investigations) may have a longer lead-in period, but the processes typically remain the same.

While forces may differ in terminology, the basic process for any new material (be it as a result of personal reflection, a conversation, or notes) would follow these steps:

• Supervisor (such as a Sergeant for a PC, or in the case of staff teams, their own files officers) is informed of a potentially relevant piece of information.
• Force Disclosure officer (for higher level crime) is informed. (For lower-level crime, investigators may in effect be their own disclosure officer).
• The disclosure officer decides if the new information is relevant and if so, use the case reference number (form the Criminal Justice Unit or files team) to submit it to the Crown Prosecution Service.
• The Crown Prosecution Service will review material (and may liaise back with force) before deciding whether to inform the legal team prosecuting the defendant.

Attorney General’s Guidelines on Disclosure

“These Guidelines are issued by the Attorney General for investigators, prosecutors and defence practitioners on the application of the disclosure regime contained in the Criminal Procedure and Investigations Act 1996 (‘CPIA’) Code of Practice Order 2020…and outline the high level principles which should be followed when the disclosure regime is applied throughout England and Wales. They are not designed to be an unequivocal statement of the law at any one time, nor are they a substitute for a thorough understanding of the relevant legislation, codes of practice, case law and procedure”.

The guidelines offer several points that are worth considering:

Is the new material considered private or personal:

1. (iv) asks “is provision of the material in its entirety to the investigator strictly necessary; or alternatively, could the material be obtained from other sources, or by the investigator viewing and/or capturing the material in situ? An incremental approach should be taken to the degree of intrusion”.

As per our guidance, officers and staff should already be aware of their obligations:

8. Investigators and disclosure officers must be fair and objective and must work together with prosecutors to ensure that disclosure obligations are met. Investigators and disclosure officers should be familiar with the CPIA Code of Practice5 - in particular their obligations to retain and record the relevant material, to review it and to reveal it to the prosecutor (see paragraphs 3-7 of the Code).

Given that the nature of recall from these cognitive techniques is typically in effect superfluous, note that:

3. “A fair trial does not require consideration of irrelevant material. It does not require irrelevant material to be obtained or reviewed. It should not involve spurious applications or arguments which aim to divert the trial process from examining the real issues before the court.”

Most importantly perhaps is the way in which new disclosures are responsibly considered:

4. “…prosecutors should not disclose material which they are not required to, as this would overburden the participants in the trial process, divert attention away from the relevant issues and may lead to unjustifiable delays. Disclosure should be completed in a thinking manner, 2 in light of the issues in the case, and not simply as a schedule completing exercise.”

With the footnote: “Not undertaking the process in a mechanical manner…keeping the issues in mind…being alive to the countervailing points of view…considering the impact of disclosure decisions…keeping disclosure decisions under review”. R v Olu, Wilson and Brooks [2010] EWCA Crim 2975, [2011] 1 Cr. App. R. 33 [42] – [44].

Finally, the guidance offers this checklist into which we can put any disclosure in context:

“84. In deciding whether material satisfies the disclosure test, consideration should include:

a. The use that might be made of it in cross-examination;

b. Its capacity to support submissions that could lead to:

 i. The exclusion of evidence;

ii. A stay of proceedings, where the material is required to allow a proper application to be made;

iii. A court or tribunal finding that any public authority had acted incompatibly with the accused’s rights under the European Convention of Human Rights;

c. Its capacity to suggest an explanation or partial explanation of the accused’s actions;

d. Its capacity to undermine the reliability or credibility of a prosecution witness;

e. The capacity of the material to have a bearing on scientific or medical evidence in the case

For a review, see: Kim EJ, Pellman B, Kim JJ. Stress effects on the hippocampus: a critical review. Learn Mem. 2015 Aug 18;22(9):411-6. doi: 10.1101/lm.037291.114. PMID: 26286651; PMCID: PMC4561403.

The Policing Curriculum:  A Note for Trainers (2024)