CPS MOU - Annex C Testing of Evidence
Published 15 April 2019
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1. Annex C Testing of evidence
C1. To establish the cause of an accident, the Accident Investigation Branches (AIBs) and other investigating bodies may need to undertake tests that will modify the condition of, dismantle or possibly destroy all or part of the physical evidence. However, a criminal investigator has a statutory duty to present to a court the best evidence available. Sometimes this may be the physical evidence in the state in which it was recovered from the site of the accident.
C2. Therefore, if notified of other party interest, the Police, Crown Prosecution Service (CPS) or the AIBs (depending on who holds the evidence and who is intending to undertake testing) will make every effort to consider other party needs before undertaking any destructive testing of evidence. This will include:
- giving notice before commencing any destructive testing
- considering representations each party may make as to the impact such testing may have on their own investigation
- coordinating the testing with the aim of reaching a mutual understanding on:
- what testing is to be done
- in what sequence it will be carried out
- who will undertake the testing
- where and when it will be carried out
- who will be present at the testing
- how it will be recorded, and by whom
- the need for each party to have its own expert present, where consistent with the protections required by the relevant regulations
- how, in the event that some parties cannot be represented at the testing, their needs will be taken into account
- the steps that will be taken to address disagreements about any aspect of the testing before it proceeds (while acknowledging that indefinite delay will not be an option and Air Accidents Investigation Branch (AAIB) regulations permit testing to commence if no representations have been made within two weeks of the initial notification)
- the reports that will be produced, by which body, for what purpose and any restrictions or prohibitions that will apply to sharing them (note that it is not usually possible for such a report produced for the AAIB to be passed to any other party)
- the need for the respective parties to discuss, and endeavour to reach agreement on, the outcome from the testing
- the arrangements to be applied once testing has been completed, for example whether the evidence is transferred (and if so, to whom) and how it will be preserved.