Concealed Evidence and Disclosure Difficulties May 2014


Part 4: Data Protection Act 1998 (DPA98) request to Sussex Police

From 27th November 2011, a number of requests for information were made to Sussex Police.  This was the chronology:



27th November    Request for a list of all items seized during their investigation and a list of all exhibits, items and samples still held in possession, No reply received from Sussex Police.


15th January        Original letter resent.  No reply received from Sussex Police.                                                                                             2nd April               Request for information on making a DPA98 and Freedom of Information Act request.   No reply received from Sussexpolice.                                                                                                                                                                                                                      13th November  Request for DPA98 request form.

30th November    Sussex Police send the form.                                                                                                                                                     16th December     Question about proof of identity.


22nd January        Sussex Police reply with answer to question.                                                                                                                    6th May                  DPA98 request made.                                                                                                                                                                 15th May                Sussex Police acknowledge the DPA98 request and their statutory obligation to reply within 40 days of the request.                                                                                                                                                                                                                     25th July                Reminder sent that no reply had been received within 40 days.  In fact, it was now over 70 days since the request. No reply from Sussex Police.                                                                                                                                                                  29th August           Complaint made to the Information Commissioner’s Office.  This was now 100 days since the DPA98 request.  5th September      The ICO acknowledge that the complaint had been received.                                                                                             11th September     Sussex Police respond, 71 days late, rejecting the DPA98 request under the following exemption:

“8. Provisions  supplementary to section 7

(2) The obligation imposed by section 7(1)(c)(I)must be complied with by supplying the date subject with a copy of information in permanent form unless –

(a) The supply of such a copy is not possible or would involved disproportionate effort.”

“This request would involved disproportionate effort because of the very large amount of information relating to the case (…….)”                                                                                                    Andrea Howard (Data Protection Unit)

1st October           The ICO’s decision was that:

“(…..)it is unlikely that the Sussex Police has complied with the requirements of the DPA.

This is because you do not appear to have received a response to your request within the statutory timeframe prescribed by the DPA (….)”

12th December     Sussex Police send a refund cheque for £10.  However, no cheque was enclosed.


January                  Sussex Police resend cheque.  This time it is received.







Concealed Evidence and Disclosure Difficulties


The CPS and the “Police Schedule of non-sensitive unused material” (MG6C)

At Graham’s first trial the CPS disclosed the “Police schedule of non-sensitive unused material” (MG6C) to the defence. The “Police Schedule of sensitive unused material” (MG6D) was not disclosed (see part 2 above). Graham has no recollection of ever having seen MG6C before his first trial or his subsequent trial. In fact, he only became aware of the existence of schedule MG6C in 2011.

He requested a copy of MG6C from his then appeal solicitors, Birds, who were by this time the third solicitors to have it in possession. However, when he received this schedule it was incomplete.

A request was made to the CPS for the missing sections (at least 283 pages). However, the CPS rejected this request. A second request was made, this time asking them to transfer the schedule onto computer disk. This would have been a relatively easy and convenient action to take. Once again, the CPS rejected this request.

You may ask what is the relevance of material that was unused and seemingly unimportant. What the CPS determine as not helpful to the prosecution case may in fact be helpful to the defence. All 3 firms of solicitors maintain that they forwarded the full MG6C schedule that they had received. So where are the missing pages and why do the CPS not want to disclose them to the defence?


The BBC and Sussex Police

“Corruption is still a challenge for policing and will remain a challenge for policing. It changes, it moves in form, it changes dramatically over time (…..) corruption is one of those issues we continually wrestle with.”

Craig Mackey (Deputy Commissioner, Metropolitan Police) 6th March 2014


Part 2: Phone Tapping and Payoffs

There are 2 main types of evidence that the police obtain. Evidence that will be used and evidence that will not be used in a prosecution. Under current disclosure rules, the defence are given the used evidence and, should they require, the unused evidence log (MG6C) in this case, MG6C was a voluminous bundle of over 1,200 pages. However, there is another evidence log. This is MG6D, which is unused evidence not for disclosure to the defence. The types of evidence contained in this log can include covert surveillance.

You will note that disclosure in an exercise in trust. The defence have to trust that the Police and the CPS, who are seeking a conviction, will adhere to the rules and disclose any material which may be helpful to the defence (or undermine the prosecution’s case). However, without the full disclosure of MG6D the defence can never be certain that the rules are being correctly applied and that there is no evidence helpful to the defence purposely buried inMG6D.

Between Graham’s arrest and his first trial the press printed many articles on the case and on those that were connected. One of these articles was a verbatim conversation between a defence witness and a third party. This raises a number of questions about the activities of Sussex Police. It is clear that there was covert surveillance in operation, including phone tapping. The full extent of this should be contained in MG6D. However, unless the press were conducting their own illegal phone tapping, a tape copy or transcript of the telephone conversation must have come directly from Sussex Police. This then leads to the logical conclusion that some form of illegal payoff was made by the press to the officer/s involved. History has shown that there are police officers who abuse their position for financial gain. How could Graham expect to get a fair trial if this type of unlawful activity was going on and what else do we not know about?

Both operations set up to investigate police corruption were contacted – Weeting (phone hacking) and Elvenden (illegal media payments to police). Unfortunately, for Operation Elvenden to investigate they require the name of the police officer/s. Therefore, without disclosure of MG6D the police officer/s involved remains anonymous and free from investigation and prosecution.

Leave a Reply

Your email address will not be published. Required fields are marked *