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AG’s Guidelines on Disclosure – too much discretion in the hands of investigators?

Attorney General’s Guidelines on Disclosure 2020

The updated guidelines were published following the publication of the Attorney General’s Review of the efficiency and effectiveness of disclosure in the criminal justice system in 2018 which highlighted significant concerns about the disclosure process. Its recommendations included encouraging earlier engagement between the prosecution and defence, harnessing the use of technology and effecting culture change. These guidelines attempt to address these and other systemic issues.

Details

 Whilst the Criminal Procedure and Investigations Act 1996 (CPIA) remains the statutory framework governing the disclosure process, the updated guidelines set out the expectations on parties at each stage of the process, from pre-charge to appeal against conviction and/or sentence.

The guidelines identify that in some investigations it may be appropriate for engagement between the defence and the prosecution at the pre-charge stage, which is defined as the period after the first PACE interview has taken place but before a decision on charge has been taken. Annex B of the guidelines set out the details of when and how this engagement should take place, and the safeguards around its use.

An additional concern which the guidelines seek to address is the procedure to be followed in the seizure, retention and examination of digital material, from both suspects and witnesses. The guidelines reiterate that the retention of digital material must be limited to evidence and relevant material only, and that there is a duty to balance issues of privacy and disclosure in obtaining and reviewing digital material, particularly where material from mobile phones is concerned. The guidelines set out the factors to be taken into account when considering the need to review digital material to ensure that is lawful, necessary and proportionate and that it is for the purpose of pursuing a reasonable line of enquiry. The guidelines restate the principle that where there is a conflict between the right to privacy and the right to a fair trial, the right to a fair trial under Article 6 of the Human Rights Act 1998 is an absolute right and must take precedence.

The guidelines also set out the responsibilities of each of the parties in the disclosure process: investigators must pursue all reasonable lines of enquiry and prepare disclosure schedules, prosecutors should engage with investigators, review schedules and apply the disclosure test and the defence must serve a defence statement (for all Crown Court trials) and request disclosure in accordance with the issues identified. The guidelines identify that prosecution advocates also review the schedules and advise on disclosure, but that the responsibility lies ultimately with the reviewing prosecutor.  The guidelines make clear that investigators must pursue all reasonable lines of enquiry, determine relevance, and remain fair and objective, with the central purpose of establishing what actually happened as their focus.

Commentary

 The guidelines attempt to address the concerns set out in the Attorney General’s 2018 Review of the efficiency and effectiveness of disclosure in the criminal justice system. The protocol for early engagement provides welcome clarity on the methods by which engagement may assist in narrowing the issues, and/or identifying further lines of enquiry as well as highlighting that the process must not circumvent the protections afforded to suspects under PACE. The guidelines helpfully note that the investigator must also consider disclosure of unused material in the pre-charge engagement stage to ensure discussions are fair and that the suspect is not misled as to the strength of the prosecution case. This is a useful clarification which will allow defence practitioners to make representations as to disclosure at each stage of the pre-charge engagement process. It may be of particular assistance to those representing children and young people as it will provide further opportunity for representations in favour of diversion from prosecution and may encourage decision makers to better engage with these representations.

Many defence practitioners already engage with investigators and, where possible, prosecutors at the pre-charge stage and will welcome these guidelines because they will assist them with this process.  However, the lack of legal aid funding available at this stage will mean that in many cases defence solicitors will be expected to engage in the process with limited or no funding, and often without any indication of whether they will remain instructed should the case proceed beyond charge.  Funding is available for this stage of representation through the advice and assistance funding scheme (via CRIM 1 & 2 forms) but the process and criteria is somewhat restrictive and, in practice, only worth doing in cases involving a significant amount of pre-charge work.  Therefore, the potential for these new guidelines to achieve effective engagement between the parties at the pre-charge stage will be limited in the absence of changes to the funding regime.

There is a clear attempt to address recent criticisms of the manner in which complainants and witnesses may be required to provide access to private digital material for review, particularly by way of access to their mobile phone. However the substance amounts to little more a restatement of the principles already engaged. Of greater concern is the guidelines’ reference to the practice of obtaining suspects’ personal digital material by legal powers or “co-operation”. All too often suspects, particularly children and young people, will not be aware that a request to provide their device, PIN and/or passcode is an entirely voluntary request. The legal powers to seize mobile phones or similar devices will most commonly be under warrant as per section 8 of PACE or following arrest, as per sections 18 or 32 of PACE. Requests of volunteers to provide devices should therefore be considered carefully and treated with caution. Children and young people should be made aware of their right to refuse a request of this nature.

In terms of addressing culture change, the guidelines make clear that the schedules of unused material are the sole method by which prosecutors have knowledge of the matters under investigation, and are also the only way in which the defence become aware of the material that exists. Whilst it is helpful to have the importance of the schedules highlighted by the guidance, there is still no mechanism for independent checks and balances to ensure that all relevant material appears on the schedule. The power to determine relevance therefore rests solely at the discretion of the investigator, who is potentially taking that decision entirely alone. Despite the clear guidance as to the nature of the test, the manner in which an investigation should be conducted and that the prosecutor and/or disclosure officer may provide assistance in determining relevance, there is no obligation on an investigator to check or approve their decision as to what is a reasonable line of enquiry, or what is relevant. More radical change to the culture of investigations by the police in particular is required in order to challenge the current unconscious and institutional biases that have been shown to exist and to affect decision making and the use of discretion. It is therefore highly unlikely that these guidelines alone will result in the culture change required for there to be a significant increase in practitioners’ confidence in the disclosure regime.

Written by Vivien Cochrane, Senior Associate, Kingsley Napley LLP