BLOG: The AG’s revised Guidelines on disclosure: Not a cultural revolution

Joe Hingston looks at the revised “Attorney General’s Guidelines on Disclosure for investigators, prosecutors and defence practitioners”, due to be brought into force later this year. He considers the changes they contain and whether they will have any significant impact in practice.

Every practitioner can recite a disclosure horror story. Their anecdote usually ends with the rhetorical question: “Wasn’t the defendant lucky that the evidence was disclosed when it was…?”

The disclosure regime has been beset by problems in recent times. To prosecutors on the frontline, it can be seen as an irritating and sometimes expensive skirmish, diverting from the principal mission, namely building the case against an accused. By the same token, defence practitioners have become increasingly frustrated at the way in which the disclosure exercise has been performed.

The neglected disclosure regime has often been seen as another factor contributing to an increasingly creaking criminal justice system. The Government has set in motion a number of initiatives to improve the process. It refers to this as part of the “new culture”. Credit must be given to the government to concede – by way of political buzzwords – that the criminal justice system has got it horribly wrong in the past.

With that in mind, the Government has ordered that the Attorney General’s Guidelines on disclosure should be updated. These revised Guidelines are due to be brought into force at the end of the year.

What are the Attorney General’s guidelines on disclosure?

The Attorney General’s Guidelines sit in a crowded field of reference points for practitioners. The Criminal Procedure and Investigations Act (“CPIA”) 1996[1] is the legislation underpinning disclosure obligations. But sitting below that are numerous pieces of secondary legislation, guidance and directives, including the CPIA Code of Practice[2], Judicial Protocol on the Disclosure of Unused Material in Criminal Cases[3], Criminal Procedure Rules[4], and the CPS Disclosure Manual[5].

The Attorney General’s Guidelines are not a statement of the Law. But they serve as another set of guidelines that practitioners should adhere to. Although there have been calls to consolidate the various sources[6], the Government takes the view that each serves its own purpose and have been authored for different audiences. In reality, practitioners will have to keep in mind these myriad sources when tackling disclosure. This would have perhaps been an opportune moment to create a uniform set of Guidelines.

Why revise the guidelines?  

In response to the collapse of a number of high profile cases, the Government published a Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System in November 2018.[7]

The Government’s announcement to undertake a Review also coincided with the high-profile prosecution (and acquittal) of Liam Allen, which exploded across the national press and continues to be an important and salutary lesson in the importance of the disclosure regime. He was an ideally-placed candidate for exposing everything wrong with the disclosure regime: a serious charge, one person’s word against another, digital communications between the accused and the complainant, and an under-resourced and over-worked criminal justice system expected to deal with the challenging demands of disclosure.

There were other examples of disclosure failings bringing cases to an abrupt halt, but Liam Allen could explain his case more easily on morning television than the collapse of complex fraud trials. Too many cases often collapsed at the eleventh hour, at considerable expense to the public and – lest we forget – with the prospect of an individual’s innocence and liberty at stake.

Ultimately the Review identified a number of problems, including a narrow application of the statutory obligations, inadequate recording of material, inadequate engagement between the parties and late disclosure. They published a set of recommendations to improve disclosure performance. As part of that, the Review recommended that the Attorney General’s Guidelines required an update in order to reflect the challenges of today’s disclosure regime.

What are the key changes?

“Thinking” regime

The idea that the disclosure regime should be carried out in a “thinking manner” is not a new one but is emphasised repeatedly in the revised Guidelines. The process should not be simply a schedule completing exercise. Prosecutors need to ask themselves what the case is about, what the likely issues for trial are going to be and how this affects the reasonable lines of inquiry, what material is relevant and whether material meets the test for disclosure. This is not revelatory but there is also added emphasis on the defence engaging in the process. The Guidelines intimate that the defence are not entirely blameless for past disclosure failings. No longer can defence practitioners expect to be handed the keys to the warehouse – if they ever could. Similarly, “a fair investigation does not mean an endless investigation.”[8] The defence must identify the issues in the case, what material they say must be disclosed and why.

The Guidance places emphasis on the importance of recording the material in the course of the review. The idea that proper, complete and detailed schedules should be drafted is key. We shall see whether the days of seeing unhelpful entries – such as “a box of paperwork”  – are behind us.

To emphasise the “thinking manner”, Disclosure Management Documents (“DMDs”) are to be expected in all Crown Court trials. Consideration should be given as to whether they would assist in Youth Court and Magistrates’ Court trials.

These changes are all premised on the assumption that investigators have sufficient training and the resources to sift through and schedule the mountain of evidence in complex cases.

Pre-charge engagement:

The Guidelines encourage active engagement between the parties at the earliest possible stage, seemingly in an attempt to separate weak and strong cases. The Guidelines would suggest this takes place after interview and prior to charge. It is not expected that this would suit every case and is voluntary. Moreover, there is no formal procedure and there is flexibility built in.  

On the face of it, this might appear a sensible idea but it is often difficult for the defence to properly understand the case against their client (and hence identify the issues) until the case has arrived in court and there has been some service of evidence. Also, from a practical perspective, solicitors are compensated poorly for their attendance at police stations. Perhaps it is optimistic to expect or require defence solicitors to launch into early engagement and agree on how digital material should be sifted when they are paid a meagre sum to turn up for the PACE interview.  

Rebuttable presumptions in favour of disclosing certain documents:

It is suggested that a finite list of documents should be disclosed as a matter of course. These would include convictions of witnesses and service of the defence statements of co-defendants.

None of the documents in the list come as a complete surprise and it is perhaps sensible to simplify the regime in this respect. Disclosing these documents by default will allow reviewing the lawyers to focus on the trickier pieces of evidence. However, some have expressed concern that this rebuttal presumption will be a “fast track” disclosure process that will simply act as a substitute for a proper review.

Digital evidence:

It would have been difficult to envisage nearly a decade ago the steep increase in the use of digital evidence. It has proved overwhelming for investigators. In most typical prosecutions, the consideration of digital evidence usually involves the police seizing the smart phones of either the accused or a key witness. The average smart phone available on the high street now carries with it 128GB of memory. Calculated another way, this equates to 13 million emails. Printed out on paper, the emails would weigh 65 tons and take nearly 75 years for one person to read.[9] The availability of 5G will only heighten the challenge of reviewing digital material.

The Guidelines have attempted to assist investigators in being more pointed in their evidence seizure: “Digital devices should not be obtained as a matter of course and the decision to obtain and examine a digital device will be a fact-specific decision to be made in each and every case.”[10]

Similarly, the Guidance gives investigators direction on how they might sift through digital material, including the use of key search terms, predictive coding or algorithmic reviews. The days of entire phone downloads and computer hard drives simply being disclosed to the defence appear to be over. The defence will be required to engage at an early stage with the prosecution on what material should be reviewed and why, and the methods to be deployed.

Complex prosecutions have often had the benefit of technical expertise in tackling the mountains of digital disclosure. That expertise will need to be called upon in many more prosecutions in the future.

Clarifying the right to privacy:

The Guidelines have attempted to provide some clarity as to the approach to be taken when dealing with sensitive or private material. In reality, the Guidance simply follows existing authority.[11]

This addition to the Guidelines is in inevitable response to the frenzied press attention devoted to the use of rape complainants’ mobile phones. “Hand over your phones or see attacker walks free” warned one newspaper.[12] The CPS issued their own press release in an attempt to correct the issue,[13] but the damage has been done.  

The Guidelines confirm that the accused does not have the automatic right to view the contents of a complainant’s mobile phone. It is sensible that a Defendant charged with a stranger rape but who is running alibi, should not on the face of it be permitted disclosure of the complainant’s phone. But not every case is clear cut and it will require defence advocates to be more pointed at an early stage about what the issues are and why private material will need to be disclosed.

The difficulties that have arisen in the past can often be attributed to a lack of understanding on the part of investigators and an insensitive approach to serious allegations. A change in approach can only come with the appropriate training.

A “new culture”?

One should credit the Government in launching the Review and publishing these revised Guidelines. It is valid recognition that the system has not worked properly. The Guidelines are a helpful step in dealing with some problematic areas, but they will not serve to micro-manage each case. The reality is that there will be no revolution in how the disclosure process operates.

Disclosure is an integral part of the trial process, but it can be an overwhelming obligation on all parties involved, particularly the Police. The commitment to improving the disclosure regime must go hand-in-hand with increased resources. The offer of 20,000 new police officers is a generous electoral promise, but it must come with better training and expertise to have an impact on disclosure.

There have been marginal improvements in terms of resources. The Government now compensate defence advocates (to a limited extent) to review unused material. Similarly, the recent recruitment drive at the CPS goes someway to remedy the cuts over the last decade. There must also be an ongoing commitment in training frontline police and prosecutors to ensure the regime is properly carried out in each case. No longer should the disclosure officer be the lonely, forgotten member of the prosecution team. Resources are the key driver to ensuring that the disclosure regime is implemented and applied properly.

Joe Hingston was called to the Bar in 2007. He specialises in complex serious crime, often involving large volumes of digital evidence and spanning multiple jurisdictions. Currently, he is currently instructed in a number of “Encro” cases arising from Operation Venetic. He is also instructed in a case said to relate to a major international OCG involving the alleged importation of many hundreds of kilos of class A drugs and unlawful firearms where substantial disclosure issues have arisen. In 2019, he was instructed in HMRC’s longest running “diesel fraud” trial. 

Footnotes

[1] https://www.legislation.gov.uk/ukpga/1996/25/contents

[2] https://www.gov.uk/government/publications/criminal-procedure-and-investigations-act-code-of-practice

[3] https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Protocols/Disclosure+Protocol.pdf

[4] https://www.gov.uk/guidance/rules-and-practice-directions-2020#rules-and-practice-directions-contents

[5] https://www.cps.gov.uk/sites/default/files/documents/legal_guidance/Disclosure-Manual-12-2018.pdf

[6] In his Review of Disclosure in Criminal Proceedings (2011), Lord Gross observed that the reviewers encountered “a near unanimous call for consolidation and abbreviation.”

[7] https://www.gov.uk/government/publications/review-of-the-efficiency-and-effectiveness-of-disclosure-in-the-criminal-justice-system

[8] para. 17

[9] https://www.lexisnexis.com/applieddiscovery/lawlibrary/whitepapers/adi_fs_pagesinagigabyte.pdf. An average piece of A4 paper weighs 5grams. Assuming one email is reviewed per minute and the reviewer works a standard 40-hour week.

[10] para. 56

[11] Bater-James and Mohammed [2020] EWCA Crim 790

[12] https://www.telegraph.co.uk/news/2019/04/28/rape-victims-told-hand-mobile-phones-see-attackers-walk-free/

[13] https://www.cps.gov.uk/cps/news/handing-over-mobile-phone-data-rape-prosecutions