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For those previously frustrated by trying to keep track of disclosure material, there is some good news. As per one of the recommendations in our book, Tackling Disclosure in the Criminal Courts, the Digital Case System (DCS) now has two brand new sections, nestled between ‘J: Exhibits’ and ‘K: Transcripts ABE Interviews’:
The new system provides a number of benefits:
No sensitive material or any schedules of sensitive unused schedules (MG6Ds) will be uploaded to the DCS.
The Attorney General’s Guidelines on Disclosure 2020 came into force on 31 December 2020, and replace those issued in 2013. The genesis of these new Guidelines is the recommendations made in the 2018 ‘Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System’, which itself followed the collapse of a number of cases where there were disclosure failings, most notably the widely publicised prosecution of university student Liam Allen.
Page 3 of the Guidelines sets out the duty of prosecution advocates:
‘Review schedules and disclosed material, advise the prosecution where advice is sought and at any rate where deficiencies in disclosure are apparent.’
Paragraph 82 of the Guidelines refers to obligations on behalf of the defence:
‘The defence are under a duty to engage with the prosecutor in order to aid understanding about the defence case and the likely issues for trial at this early stage. This engagement assists in ensuring compliance with the overriding objective of the Criminal Procedure Rules.’
Paragraph 4 states that, ‘Disclosure should be completed in a thinking manner, in light of the issues in the case and not simply as a schedule completing exercise.’ This, ‘thinking manner’ theme is repeated a number of times throughout the Guidelines, indicating that the defence will be expected to justify the material sought.
Paragraphs 11 to 13 of the Guidelines set out principles to be borne in mind when balancing the right to a fair trial (Article 6 of the European Convention on Human Rights) and the right to respect for private and family life (Article 8). Specific reference is also made to the guidance given by the Court of Appeal in Bater-James and Mohammed [2020] EWCA Crim 790. This will be particularly relevant to sexual offences cases where the issue of the extent to which analysis of a complainant’s or witness’s digital devices, mobile phone and social media material arises.
The most interesting and significant development in the Guidelines is the introduction of the concept of a rebuttable presumption of categories of disclosable material, which should now be disclosed as a matter of course. Paragraph 87 of the Guidelines states:
‘The following material is likely to include information which meets the test for disclosure:
(a) records which are derived from tapes or recordings of telephone messages (for example 999 calls) containing descriptions of an alleged offence or offender;
(b) any incident logs relating to the allegation;
(c) contemporaneous records of the incident, such as:
(a) the defendant’s custody record or voluntary attendance record;
(b) any previous accounts made by a complainant or by any other witnesses;
(c) interview records (written records, or audio or video tapes, of interviews with actual or potential witnesses or suspects);
(d) any material casting doubt on the reliability of a witness eg relevant previous convictions and relevant cautions of any prosecution witnesses and any co-accused.’
These are obvious categories of material which should be disclosed as a matter of course in all investigations but often are omitted. It is to be noted that, unfortunately, Body Worn Video (BWV) footage is not explicitly listed. However, the rebuttable presumption is a welcome and crucial specification as it will lead to faster and more consistent decision-making in relation to basic categories of material.
Paragraph 96 of the Guidelines stipulates that, Disclosure Management Documents (DMDs), ‘should be prepared in all Crown Court cases.’ Paragraph 98 provides that where a DMD has been prepared, it should be served at the same time as initial disclosure. However, it is unclear as to what extra resources will be provided to ensure the proper discharge of what is now a significant obligation in every Crown Court case. Therefore, defence teams must keep these DMDs under review and seek updates at relevant and important stages of the case. A sensible stage to seek such an update is after receiving (and reviewing) the prosecution’s response to the defence statement.
Paragraphs 100-107 contain useful guidance as to when initial disclosure should be served. In particular, para 104 states that: ‘Where it is expected that the accused will maintain a not guilty plea, it is encouraged as a matter of best practice for initial disclosure to be served prior to the Plea and Trial Preparation Hearing (PTPH).’
Paragraphs 139 and 140 specifically address disclosure in the context of confiscation proceedings. Referring to s 7A(1)(b) of the Criminal Procedure and Investigations Act 1996 (CPIA), it is reiterated that: ‘The disclosure regime in the CPIA ceases to have effect post-conviction and the continuing duty of disclosure does not apply to confiscation proceedings’. However, it is pointed out that the disclosure requirements at common law still apply: ‘meaning that there may be a requirement to disclose material in the interests of justice and fairness in the proceedings.’ If instructed to defend in confiscation proceedings, do not hesitate to make appropriate requests and to remind the prosecution of their disclosure obligations.
Annex A of the Guidelines provides expanded and updated guidance in relation to Digital Material.
Annex B provides a section on pre-charge engagement, which is defined as the ‘voluntary engagement between the parties to an investigation after the first PACE interview, and before any suspect has been formally charged.’ Examples given include, ‘Ascertaining whether the suspect can identify any other lines of inquiry’ and ‘Agreeing any key word searches of digital material that the suspect would like carried out.’ If defending, a tactical decision will need to be made as to the extent of information provided to investigators. A welcome development is that liaising with the investigators at the outset may result in the investigation being concluded in the client’s favour.
Annex C contains a DMD template, which includes a suggested way of presenting how electronic material has been dealt with. This provides a helpful reference for practitioners as to the correct format and content of a DMD.
A revised version of the CPIA Code of Practice also came into force on 31 December 2020.
The Code’s purpose, as stated in its preamble, is that it: ‘sets out the manner in which police officers are to record, retain and reveal to the prosecutor material obtained in a criminal investigation and which may be relevant to the investigation, and related matters.’
This revised Code has a limited number of amendments and essentially complements the new AG’s Guidelines; for example, it sets out the same list of items for which there is a rebuttable presumption of disclosure, stating that it, ‘must’ be scheduled and that in reviewing such material disclosure officers and prosecutors are to start with a presumption that it is likely to meet the disclosure test.
At para 5.4, there is now an explicit duty to retain CCTV footage, or other imagery, of the incident in action; although sanctions for non-compliance are not specified.
The previous version of the Code provided for streamlined disclosure certificates to be prepared if the accused was charged with a summary or either-way offence that was likely to remain in the magistrates’ court and it was considered likely that the defendant would plead not guilty. The revised version of the Code (para 6.3) makes no mention of these certificates for these cases, but instead stipulates that the appropriate schedule of unused material be prepared.
The new Guidelines and Code of Practice are to be welcomed. However, it is the practical application of the basic principles of justice contained within these guidance documents that will determine whether disclosure failings arise in the future. The simple step of adding disclosure sections to the DCS, in a centrally accessible location, will help.
For those previously frustrated by trying to keep track of disclosure material, there is some good news. As per one of the recommendations in our book, Tackling Disclosure in the Criminal Courts, the Digital Case System (DCS) now has two brand new sections, nestled between ‘J: Exhibits’ and ‘K: Transcripts ABE Interviews’:
The new system provides a number of benefits:
No sensitive material or any schedules of sensitive unused schedules (MG6Ds) will be uploaded to the DCS.
The Attorney General’s Guidelines on Disclosure 2020 came into force on 31 December 2020, and replace those issued in 2013. The genesis of these new Guidelines is the recommendations made in the 2018 ‘Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System’, which itself followed the collapse of a number of cases where there were disclosure failings, most notably the widely publicised prosecution of university student Liam Allen.
Page 3 of the Guidelines sets out the duty of prosecution advocates:
‘Review schedules and disclosed material, advise the prosecution where advice is sought and at any rate where deficiencies in disclosure are apparent.’
Paragraph 82 of the Guidelines refers to obligations on behalf of the defence:
‘The defence are under a duty to engage with the prosecutor in order to aid understanding about the defence case and the likely issues for trial at this early stage. This engagement assists in ensuring compliance with the overriding objective of the Criminal Procedure Rules.’
Paragraph 4 states that, ‘Disclosure should be completed in a thinking manner, in light of the issues in the case and not simply as a schedule completing exercise.’ This, ‘thinking manner’ theme is repeated a number of times throughout the Guidelines, indicating that the defence will be expected to justify the material sought.
Paragraphs 11 to 13 of the Guidelines set out principles to be borne in mind when balancing the right to a fair trial (Article 6 of the European Convention on Human Rights) and the right to respect for private and family life (Article 8). Specific reference is also made to the guidance given by the Court of Appeal in Bater-James and Mohammed [2020] EWCA Crim 790. This will be particularly relevant to sexual offences cases where the issue of the extent to which analysis of a complainant’s or witness’s digital devices, mobile phone and social media material arises.
The most interesting and significant development in the Guidelines is the introduction of the concept of a rebuttable presumption of categories of disclosable material, which should now be disclosed as a matter of course. Paragraph 87 of the Guidelines states:
‘The following material is likely to include information which meets the test for disclosure:
(a) records which are derived from tapes or recordings of telephone messages (for example 999 calls) containing descriptions of an alleged offence or offender;
(b) any incident logs relating to the allegation;
(c) contemporaneous records of the incident, such as:
(a) the defendant’s custody record or voluntary attendance record;
(b) any previous accounts made by a complainant or by any other witnesses;
(c) interview records (written records, or audio or video tapes, of interviews with actual or potential witnesses or suspects);
(d) any material casting doubt on the reliability of a witness eg relevant previous convictions and relevant cautions of any prosecution witnesses and any co-accused.’
These are obvious categories of material which should be disclosed as a matter of course in all investigations but often are omitted. It is to be noted that, unfortunately, Body Worn Video (BWV) footage is not explicitly listed. However, the rebuttable presumption is a welcome and crucial specification as it will lead to faster and more consistent decision-making in relation to basic categories of material.
Paragraph 96 of the Guidelines stipulates that, Disclosure Management Documents (DMDs), ‘should be prepared in all Crown Court cases.’ Paragraph 98 provides that where a DMD has been prepared, it should be served at the same time as initial disclosure. However, it is unclear as to what extra resources will be provided to ensure the proper discharge of what is now a significant obligation in every Crown Court case. Therefore, defence teams must keep these DMDs under review and seek updates at relevant and important stages of the case. A sensible stage to seek such an update is after receiving (and reviewing) the prosecution’s response to the defence statement.
Paragraphs 100-107 contain useful guidance as to when initial disclosure should be served. In particular, para 104 states that: ‘Where it is expected that the accused will maintain a not guilty plea, it is encouraged as a matter of best practice for initial disclosure to be served prior to the Plea and Trial Preparation Hearing (PTPH).’
Paragraphs 139 and 140 specifically address disclosure in the context of confiscation proceedings. Referring to s 7A(1)(b) of the Criminal Procedure and Investigations Act 1996 (CPIA), it is reiterated that: ‘The disclosure regime in the CPIA ceases to have effect post-conviction and the continuing duty of disclosure does not apply to confiscation proceedings’. However, it is pointed out that the disclosure requirements at common law still apply: ‘meaning that there may be a requirement to disclose material in the interests of justice and fairness in the proceedings.’ If instructed to defend in confiscation proceedings, do not hesitate to make appropriate requests and to remind the prosecution of their disclosure obligations.
Annex A of the Guidelines provides expanded and updated guidance in relation to Digital Material.
Annex B provides a section on pre-charge engagement, which is defined as the ‘voluntary engagement between the parties to an investigation after the first PACE interview, and before any suspect has been formally charged.’ Examples given include, ‘Ascertaining whether the suspect can identify any other lines of inquiry’ and ‘Agreeing any key word searches of digital material that the suspect would like carried out.’ If defending, a tactical decision will need to be made as to the extent of information provided to investigators. A welcome development is that liaising with the investigators at the outset may result in the investigation being concluded in the client’s favour.
Annex C contains a DMD template, which includes a suggested way of presenting how electronic material has been dealt with. This provides a helpful reference for practitioners as to the correct format and content of a DMD.
A revised version of the CPIA Code of Practice also came into force on 31 December 2020.
The Code’s purpose, as stated in its preamble, is that it: ‘sets out the manner in which police officers are to record, retain and reveal to the prosecutor material obtained in a criminal investigation and which may be relevant to the investigation, and related matters.’
This revised Code has a limited number of amendments and essentially complements the new AG’s Guidelines; for example, it sets out the same list of items for which there is a rebuttable presumption of disclosure, stating that it, ‘must’ be scheduled and that in reviewing such material disclosure officers and prosecutors are to start with a presumption that it is likely to meet the disclosure test.
At para 5.4, there is now an explicit duty to retain CCTV footage, or other imagery, of the incident in action; although sanctions for non-compliance are not specified.
The previous version of the Code provided for streamlined disclosure certificates to be prepared if the accused was charged with a summary or either-way offence that was likely to remain in the magistrates’ court and it was considered likely that the defendant would plead not guilty. The revised version of the Code (para 6.3) makes no mention of these certificates for these cases, but instead stipulates that the appropriate schedule of unused material be prepared.
The new Guidelines and Code of Practice are to be welcomed. However, it is the practical application of the basic principles of justice contained within these guidance documents that will determine whether disclosure failings arise in the future. The simple step of adding disclosure sections to the DCS, in a centrally accessible location, will help.
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