Revisions to guidelines on disclosure in criminal cases – Law Society response

The proposals

The attorney general’s guidelines on disclosure, along with the Criminal Procedure and Investigations Act (CPIA) Code of Practice have been revised to reflect the challenges of modern disclosure practice, including the increase of digital material and the delays this increase causes.

The revisions to the guidelines and code will:

• introduce a rebuttal presumption that certain items of unused material will usually be disclosed by listing material which, where exists, is highly likely to meet the test for disclosure
• balance the right to a fair trial with privacy rights
• encourage early disclosure and engagement between the parties

Privacy rights

The proposed amendments set out clearly that investigators and prosecutors should not pursue enquiries that concern personal information as a matter of course.

Investigators and prosecutors must have already satisfied themselves before collecting or processing any personal information from a complainant or witness that they are pursuing a specific and identifiable line of inquiry that is reasonable in the context of the case.

The proposed changes to the guidelines additionally make clear that the right to a fair trial is an absolute right, and therefore, in certain cases, it may supersede the right to privacy.

This means that investigators and prosecutors may, depending on the facts of the case in question, need to investigate personal matters. This may include examining the contents of a mobile phone.

Early disclosure and engagement

It's proposed that, where it's expected that a not guilty plea will be entered in the Crown Court, initial disclosure should be served prior to the plea and trial preparation hearing.

Early engagement between prosecution and defence can also help ‘frontload’ disclosure obligations, and avoid problems only being identified at a later stage.

The attorney general’s review of disclosure found that, in certain cases, if the defence know more about the prosecution case at the pre-charge stage, then they may volunteer more information which may identify further reasonable lines of inquiry.

Our view

We broadly support the changes proposed to the guidelines, while suggesting some changes to the drafting.

What this means for solicitors

That the process of disclosure of unused material in criminal cases by investigators and prosecutors is done correctly and in accordance with the law is fundamental to ensuring that an accused person receives a fair trial, and has access to evidence that may undermine the prosecution or support their defence to the charge they face.

The revisions to the guidelines are an important element in the work that all criminal justice partners have undertaken to improve the disclosure process, including the Law Society on behalf of defence solicitors, to ensure a fair criminal justice process.

Next steps

The consultation closes on 22 July 2020.

The attorney general will consider the responses and publish its response in due course.

Read the consultation on the GOV.UK website