Disclosure update: Attorney General’s Guidelines on Disclosure 2022

The Attorney General’s Guidelines on Disclosure 2020 came into force on 31 December 2020, and replaced those issued in 2013. The genesis of the 2020 Guidelines was 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.

The 2020 Guidelines introduced the theme of addressing disclosure in a, “thinking manner”, made it clear that the defence have a duty to engage with the prosecution in the disclosure process and also introduced categories of material where there was a rebuttable presumption of disclosure.

Annex A of the Guidelines provided expanded and updated guidance in relation to Digital Material.

Annex B provided a section on pre-charge engagement, which was defined as the, “voluntary engagement between the parties to an investigation after the first PACE interview, and before any suspect has been formally charged.”

Annex C contained a DMD template, which included a suggested way of presenting how electronic material had been dealt with.

The Attorney General’s Guidelines on Disclosure 2022

The Attorney General’s Guidelines on Disclosure 2022 were published on 26 May 2022 and are effective from 25 July 2022. These Guidelines implement changes recommended by the Annual Disclosure Review 2021/2022.

Essentially, much of the content of the 2022 Guidelines is the same as the 2020 version. It should be noted, however, that additions to the new Guidelines mean that the paragraph numbers are not the same as the 2020 version.

According to the Attorney-General’s written statement, made on 26 May 2022, the changes to the Guidelines have focused on the following four areas:

“1) Third Party Material Access – The provisions for accessing third party material are now expressed in a staged manner to aid with their application by busy investigators, disclosure officers and prosecutors. The principles are also strengthened in-line with the dicta of the Court of Appeal in R v Bater-James & Anor [2020] EWCA Crim 780. Investigators and prosecutors are also now explicitly required to keep written records of the reasons for making third party material requests, and to balance such requests with the privacy rights of those affected.

2) Material Presumed to Meet the Test for Disclosure – This section of the guidelines has been subject to limited restructuring in order to clarify that material contained in a crime report need only be provided once, via the provision of the crime report, and need not be duplicated where it appears elsewhere. Important clarifications to the practicality of providing large video files, especially body worn videos, have also been made to aid investigators.

3) Defence Engagement – Throughout the Guidelines, guidance as to how and when the defence should provide information to the prosecution has been clarified and where appropriate made more definitive.

4) Redaction Annex – A new annex has been added clarifying how investigators should meet their data protection obligations when providing material to the CPS for the purposes of a charging decision.”

We consider below some of the key modifications to the Guidelines.

Third-party material

A new section is set out at paragraphs 28 to 34 providing the following sequence of steps under the heading, “Principles of accessing third party material”:

• Step1: Establishing a Reasonable Line of Inquiry
• Step 2: Establishing Relevance
• Step 3: Balancing Rights

Under Step 2, there is set out a list of considerations when deciding whether third party material should be requested, including consideration as to whether the request amounts to an invasion of privacy and if so whether the request is proportionate and justifiable in all the circumstances.

Note the expanded paragraph 43 (paragraph 41 in the old Guidelines) which sets out the steps that should be taken if there is a refusal by a domestic third party such as a local authority, social services department or hospital, to provide material:

“If access to the material is refused and, despite the reasons given for refusal of access, it is still believed that it is reasonable to seek production of the material or information and that the requirements of a witness summons are satisfied (or any other relevant power), then the prosecutor or investigator should apply for the summons causing a representative of the third party to produce the material to court. A witness summons is only available once a case has been charged. If the material is sought pre-charge, investigators and prosecutors should request that the third party preserve the material. This request should be documented.”

Initial disclosure

Paragraph 82 now states that, “The prosecutor and defence are both under a duty to engage promptly in order to aid understanding of the defence case and the likely issues for trial at an early stage.” and that, “Significant cooperation should be a regular occurrence…” in accordance with the Criminal Practice Direction CPD1, par 1A.1.

Under the heading, “Material which is likely to meet the test for disclosure” at paragraph 87, there is now a welcome reference to relevant body-worn footage.

Case management

Paragraph 111 is new. It states:

“Any party who takes the view that another party is not complying with their obligations under the disclosure regime should bring this to the attention of the court as soon as possible.”

Applications for disclosure under Section 8 of the CPIA

Paragraph 131 states,

“An application for disclosure can only be made if the defence have provided an adequate defence statement.”

This is identically worded to the 2020 version of the Guidelines save that the word ‘adequate’ is now in bold and there is also a footnote stating that, “CPIA 1996, s5 and Part 15 Criminal Procedure Rules may be considered for a more detailed examination of the meaning of ‘adequate’.”

The only other change in this section of the Guidelines is the addition in the follow-on paragraph (paragraph 132) of this sentence: “There must not be any speculative requests for material.”

Annex D – Redaction

This is an entirely new addition to the Guidelines and is set out under the following headings:

• Overview
• The Redaction Decision-Making Process
  • Reviewing for relevance
  • Establishing the Data is Personal
  • Applying the Necessity test
• Providing Material that is Disproportionate to Redact

The Overview includes, at paragraph 1, the following explanation of the purpose of Annex D:

“This annex relates to the obligation on investigators to redact material provided to the CPS when a charging decision is sought. While it focuses on unused material at the pre-charge stage, the principles may also apply to evidence and to other stages of the prosecution process. The term redaction in this annex refers to any way of obscuring personal data, including but not limited to redaction, clipping, pixelization, anonymisation or pseudonymisation.”

Paragraph 10 of the Guidelines introduces ‘the Necessity Test’:

“Where the data is relevant, personal and there is a reasonable expectation of privacy, investigators will need to go on to consider whether it is nonetheless necessary or strictly necessary to provide it to the CPS in an unredacted form for the purposes of making a charging decision. Where it is necessary or strictly necessary to do so, the data need not be redacted; where data does not meet this standard, it should be redacted.”

The Guidelines go on to define or give guidance about interpreting “Necessity” and “Strict Necessity”, the latter being a higher standard applying to sensitive personal data.

Paragraph 18 states,

“Where data is instead provided to the CPS unredacted because it is necessary or strictly necessary to provide it, the CPS has responsibility for any additional redaction (e.g., where required before disclosure to the defence).”

Annex D also includes two examples of how the Guidelines might work in practice.

Redactions carried out by the police and the CPS present a potential problem in the disclosure process. The danger is that some information is redacted without realising its potential significance. If the CPS or Prosecution Counsel have not seen the unredacted versions, they may be oblivious to the existence of potentially disclosable material or information.

These revised Guidelines do, though, represent a practical aid to anyone involved in the disclosure process. Although they do not represent any significant shift in approach since the 2020 Guidelines, the practical changes such as the addition of relevant body worn video footage in the ‘Material which is likely to meet the test for disclosure’ section and the stepped approach to accessing third party material, are to be welcomed.

Ultimately, the effectiveness of the disclosure exercise will be determined by the practical application of the Guidelines. That can only happen if there is proper and sustained training of those involved at all stages of the disclosure process and, of course, adequate funding for this fundamental part of the criminal justice system.

Narita Bahra Q.C. is a tenant at 33 Chancery Lane and Don Ramble is a tenant at 5 St. Andrew’s Hill. They are both co-authors of Tackling Disclosure in the Criminal Courts – A Practitioner’s Guide (2019 edition).