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A Move Towards Modernisation? An Overview of the Attorney General’s 2020 Guidelines on Disclosure15th January 2021 Business Crime
The disclosure process takes places in all criminal cases and is designed to ensure the accused has the right to a fair trial (Article 6, European Convention on Human Rights ‘ECHR’). It allows a defendant the opportunity to have access to material that satisfies the legal test for disclosure. The legal test is set out in The Criminal Procedure and Investigations Act of 1996 (CPIA) and regulates, in part, the procedures of investigating and prosecuting criminal offences. The disclosure obligations begin at the start of an investigation and investigators must ensure that all reasonable lines of inquiry are investigated, whether they point towards or away from a suspect.
In November 2018, in response to the adverse impact caused by systematic disclosure failings, the Government published a Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System. Whilst the approach in respect of disclosure remains as ‘retain’ ‘record’ ‘review’ and ‘reveal’, the review highlighted, in amongst other issues: lack of transparency in the approach to reasonable lines of enquiry pursued by investigators, disclosure issues and tasks were left until too late a stage in litigation and that disclosure was a system-wide problem that requires a systematic response. It was emphasised that cultural changes such as performing disclosure obligations as soon as possible with better use of technology would help and ultimately better the disclosure process.
In accordance with The Criminal Procedure and Investigations Act 1996 (Code of Practice) Order 2020 and section 23 of CPIA, the Attorney General’s Guidelines on Disclosure 2020 (‘the new Guidelines’) replace the existing Attorney General’s Guidelines on Disclosure issued in 2013, and came into effect from 31st December 2020.
The Role of the Parties
Both the prosecution and defence are required to comply if disclosure is to function correctly. There are important roles for the prosecution, defence and the court, in ensuring that disclosure is conducted properly, including on the part of the investigating team, disclosure officers, solicitors and advocates.
- Defence engagement must be early and meaningful for the CPIA regime to function as intended. Defence statements which are only mandatory in Crown Court proceedings are an integral part of this process and are intended to help focus the attention of the prosecutor and court on the relevant issues in order to identify exculpatory unused material (Section 6A CPIA).
- Prosecutors are responsible for disclosing to the accused any prosecution material which has not been previously disclosed to the accused and which might reasonably be considered of undermining the case for the prosecution against the accused or assisting the case for the accused (Section 3 CPIA, Initial duty of prosecutor to disclose). In the Magistrates’ courts, the requirement for the prosecution to provide initial disclosure only arises after a not guilty plea has been entered. Prosecutors should however be aware that material may exist which should be disclosed to the defendant prior to the CPIA requirements applying to the case.
- Prosecutors also have a continuing duty to disclose (Section 7A CPIA) and must keep under review the question of whether at any given time there is prosecution material which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused.
- Investigators and Disclosure Officers must retain and record relevant material, review it and reveal it to the prosecutor. Investigating officers must follow all reasonable lines of enquiry, whether they point away from or towards the suspect.
- Prosecution Advocates must ensure that all material which ought to be disclosed under the Act is disclosed to the defence.
Why is disclosure important?
Disclosure remains one of the most important as well as one of the most misunderstood and abused procedures relating to criminal trials (Judicial Protocol on the Disclosure of Unused Material in Criminal Cases, 2013). Disclosure is important as it aims to ensure that all criminal investigations are conducted in a fair, objective and thorough manner in compliance with the Criminal Procedure and Investigations Act 1996 and the CPIA Code of Practice. Every accused person has the right to a fair trial as stipulated by Article 6 of the ECHR. Disclosure is essential in avoiding miscarriages of justice.
What can go wrong?
- Disclosure can go wrong if material is disclosed which overburdens the participants in a trial process, diverts attention from the relevant issues, leads to unjustifiable delay and is wasteful of resources. This could lead to the collapse of a case.
- Problems may arise if communication within the prosecution team is not as effective as it should be. In order to prevent this, a full log of disclosure decisions (with reasons) must be kept on the file and made available as appropriate to the prosecution team.
- Organisational problems may occur if a lead disclosure officer is not assigned who is the focus for enquiries and whose responsibility it is to ensure that the investigator’s disclosure obligations are complied with. Where appropriate, regular case conferences and other meetings should be held to ensure prosecutors are apprised of all relevant developments in investigations and full records should be kept of such meetings.
- The growth of digital and social media means investigating officers have much more material to consider and many more devices to analyse. The sophistication of mobile devices and the extremely large amount of data that requires capturing, analysing, reviewing and disclosing where appropriate has become a complicating factor. Where investigations involve digital material, it will be virtually impossible for investigators (or prosecutors) to examine every item of such material individually and there should be no expectation that such material will be so examined.
So what changes have been made?
Article 6 and Article 8 ECHR
A new section has been included which addresses the balance between the right to a fair trial and the right to a private and family life, particularly in relation to digital evidence where sensitive data may be revealed. The new Guidance provides principles that should be followed, however, ultimately it is concluded that the disclosure process secures a right to a fair trial, and where there is conflict, it should be borne in mind that the right to a fair trial is an absolute right.
With technological advancements and the mass of data that may be recovered in any investigation, the guidelines on digital material have been revised. Almost a decade ago it would have been difficult to predict that digital devices and mediums of correspondence would become one of the main sources of evidence in prosecutions. Therefore, the Guidelines have attempted to assist investigators and prosecutors with how digital material may be reviewed.
The new Guidance has expanded on how digital material may be sifted and examined. For example, paragraph 41 confirms that mobile phones are capable of storing a large volume of material and so technology that encompasses search tools which use calculations to problem-solving are an appropriate method of examination and review. In addition, that sampling and searches should be carried out on more than one occasion.
Additionally, the new Guidance has incorporated a detailed explanation of the use of search terms and the use of Disclosure Management Documents (‘DMD’). In particular, “The digital strategy must be set out in an IMD and subsequently a DMD. This should include the details of any sampling techniques used (including key word searches) and how the material identified as a result was examined”.
Communication Between Parties and Pre-Charge Engagement
Throughout the new Guidelines active engagement between the defence and prosecution at the earliest possible stage is encouraged. At annex B, further guidance is provided in relation to ‘pre-charge engagement’, which may include “voluntary engagement between the parties to an investigation after the first PACE interview, and before any suspects have been formally charged”. However, a suspect at this stage is not obliged to engage and it will not adversely affect him or her at a later stage if criminal proceedings commence. It is worth noting that pre-charge engagement is encouraged and may impact on a decision as to whether any charges are authorised.
The new guidelines also emphasise the importance of full records being kept of any pre-charge engagement discussions. Where it is stated that although the process undertaken does not have to be a formal one, a written record should always be made and kept.
As the pre-charge engagement takes place prior to the institution of any proceedings, the statutory disclosure rules will not be engaged. However, the disclosure of unused material must be considered nonetheless. It is also necessary that the investigator considers whether any further material falls to be disclosed – this is an on-going duty.
Whilst a prosecutor’s statutory duty of disclosure does not apply until a not guilty plea has been entered in the Magistrates Court or the case is sent to the Crown Court, duties under common law still apply and apply at all stages of the case (from charge to sentence and post-conviction). The new Guidelines provide a list of material that is likely to meet the test for disclosure (see paragraph 87) and in deciding what material satisfies the disclosure, consideration should be given to (paragraph 84):
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.
The new Guidance confirms in addition that a DMD should be prepared in all Crown Court cases and should be served at the same time as initial disclosure (a template is contained at Annex C to the new guidance). It is emphasised that the DMD is a working document and is to be kept up to date as the case progresses
As confirmed in CPIA, the prosecution have a continuing duty of disclosure and the new Guidelines confirm that this duty is crucial and particular attention must be paid when there are significant developments in a case. For example, after the prosecution have complied (or purported to comply) with the their initial duty of disclosure, they should also consider any issues raised by the defence at the first hearing at the Magistrates’ Court, the PTPH at the Crown Court or any other hearings.
What Does This Mean for Practitioners?
The mentality of those involved in the disclosure process must change and funding issues (where legal aid applies) must be addressed in order to see the cultural change that is needed. Despite some limited changes to funding already having come into effect (the defence now being able to claim for the review of unused material), the hourly rate is considerably low and the work done is not guaranteed to be paid at the end of the case. Furthermore, whilst the emphasis is for earlier engagement between the parties, thus further time and resources being required by the defence, there is currently no increase at that stage in what will be paid to the defence in legal aid cases.
As identified by the Law Society “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”. Whilst the new Guidelines are a move towards modernising the disclosure process, this is only a small step and much further work is needed.
JMW’s Business Crime and Regulation department have exceptional experience in dealing with serious criminal matters nationwide, many cases of which have an international element.