Newsletters Criminal Defence 2nd Nov 2020

The 2020 Disclosure Guidelines

Those who work in the criminal justice system have long known that of all things the phrase “more honoured in the breach than the observance” could be applied to, it is the disclosure regime.  Indeed, even when defending the most serious of criminal cases, almost every day one comes across situations in which the police have not complied with their investigative duties and the CPS have failed to understand or simply had scant regard for their disclosure obligations, either because it suits them not to or because they are too under-resourced to undertake the task properly.

Since 2013, when the Attorney-General’s Guidelines on Disclosure were last revised, these problems have been greatly exacerbated by the sheer scale of digital material generated by police investigations as people increasingly live their lives on smartphones and social media. There has been a series of prosecutions involving allegations of rape or sexual assault which had to be abandoned after very troubling disclosure failures. Other areas where the disclosure process had failed spectacularly were set out by Richard Horwell QC in the Mouncher investigation report.

In November 2018, the Attorney General’s Review of the efficiency and effectiveness of disclosure in the criminal justice system (“the Review”) was published.  The Review found that the basic principles enshrined within the Criminal Procedure and Investigations Act 1996 and the 2013 Attorney-General’s Guidelines were essentially sound but there were significant problems in their implementation, leading to systematic failures in the criminal justice system as a whole.  It reiterated that the disclosure process lay at the heart of a fair trial and called for the need for a fundamental “culture change”, with an emphasis on performing disclosure obligations early and fully and better use of technology.

The product of the Review and the consultation process that followed are a new set of A-G’s Guidelines, due to come into force at the end of the year.

Much of the content of the 2013 Guidelines has been retained, but the material has been extensively reorganised with a (helpful) emphasis upon the various stages of the disclosure process as opposed to the duties of the various participants. Some parts have been revised, including those in relation to digital and sensitive material and there are some new sections. Overall, however, this is a restatement of the existing disclosure principles rather than a fundamental re-writing of what went before.

There is a new section on the balance between the right to a fair trial under Article 6 of the ECHR and the right to privacy and family life under Article 8.  This pays particular regard to the difficult question of the acquisition and disclosure of digital material which may contain highly personal information.   It takes account of the recent guidance given in R v CB; R v Mohammed Sultan [2020] 2 Cr App R and uses a practical example of when it may or may not be necessary to seek access to a complainant’s mobile in an allegation of sexual assault (paras 11-13).  Ultimately, it concludes that the right to a fair trial is absolute and states “where prosecutors and investigators work within the framework provided by the CPIA, any unavoidable intrusion into privacy rights is likely to be justified, so long as any intrusion is no more than necessary” (13(h).  Whether or not this guidance in fact means that investigators will in future learn better to strike the right balance in this vexed area remains to be seen.

As regards initial disclosure, one of the most important changes is said to be the introduction of a rebuttable presumption that certain types or categories of unused material meet the disclosure test. This is in an effort to save time and resources that are currently wasted in establishing its status.  At paragraph 87 the list includes: records from telephone calls e.g. 999 calls; incident logs; contemporaneous records of the incident; crime reports; investigation logs; police notebook entries; first accounts; CCTV or other imagery of the incident in action (presumably to include body worn footage); custody records; interview records; any material casting doubt on the reliability of a witness and co-accused, including previous convictions. This is a welcome change and will hopefully avoid the frequent practice of items such as CRIS reports/investigation logs being routinely marked as “CND – Clearly Not Disclosable” on an unused schedule, when they clearly are.  However, given that all of this is material which would normally fall to be disclosed anyway, the real effect may simply be to speed up the process. There is also a danger that it may encourage the very “tick box” mentality that the Guidelines seek to avoid, because it tends to reduce the value of the revelation process to the prosecution review process and may make proper decision-making less likely in respect of material which is not identified as falling within the presumption.

This section also includes expanded guidance on the use of the disclosure management document (also dealt with at Annex C) and a new section on the timing of initial disclosure in both the magistrates court and the Crown Court.

The concept of pre-charge engagement is specifically detailed at Annex B of the Guidelines.  This is and of itself problematic, because there is currently no provision for the funding of such engagement within the legal aid scheme and there is a concern that although this procedure is said to be voluntary, it may shift the emphasis from the obligation on investigators onto the defence.

Annex A sets out detailed guidance in relation to digital material, and corresponds to the Annex to the 2013 guidelines, although there is greater emphasis on obtaining devices by cooperation.

Whilst some of the revisions to the Guidelines are welcome, overall guidance on the mechanics of achieving their stated aims are arguably still lacking.  Moreover, it is all well and good to restate the importance of the disclosure regime, and to encourage early and pro-active engagement with it.  But unless and until the mentality of those involved in the disclosure process shifts significantly, it is difficult to see how any real change can be brought about.  This requires a significant improvement in resources across the board, from improved training of police officers, specialist analysis of material, the availability of reviewing lawyers with time to work through schedules of unused material in a thorough way and funding for defence practitioners to review unused material.  Without such measures in place (and arguably sanctions built into the system for failures to comply with the disclosure process), it is questionable whether the Guidelines will achieve the “culture change” so desperately needed.


Gudrun Young

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