A. Introduction:

Who Am I ?

Mark Seymour

Call 1992

CPS London Advocate Panel – Grade 4

CPS Fraud Panel – Grade 4

CPS Serious Crime Panel – Grade 4

CPS RASSO specialist rape prosecutor – Grade 4

SFO Advocate Panel – Grade A


1. History:

  • In Nov 2018, the AG published Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System: raised significant concerns re culture around disclosure.
  • Basic conclusions / recommendations:

-changes to structure of CPIA disclosure scheme not required.

-significant problems in their implementation.

-fundamental “culture change” required whereby the emphasis would be on performing disclosure obligations early and fully.

-better use of technology to facilitate proper disclosure.

  • This was the signal for proposing the new Attorney General’s Guidelines in 2020.
  • Consultation process undertaken

2. Key Drivers:

  • Perceived wholesale failure by Police to effectively carry out their disclosure obligations.
  • CPS / Police too under-resourced to undertake the disclosure task properly.
  • Exponential growth in scale of digital material obtained: 128GB iPhone.
  • Backlog of cases: caused by COVID pandemic.
  • Front-loading of disclosure to the pre-charge stage.
  • Series of high-profile cases where disclosure failings identified: e.g. Allan[1].

3. New Procedures / Processes:

  • Simultaneously issued on 31.12.20:

(a) CPIA Code of Practice [s23(1) CPIA 1996][2]; and

(a) DPP’s Director’s Guidance on Charging [s37A PACE 1984][3].

  • DPP Max Hill QC[4]: “There has been a major shift in working practices and priorities throughout the criminal justice system in recent years and it is vital there is clear guidance to help Police and Prosecutors navigate these effectively.The Attorney General’s guidelines focus on getting disclosure right and getting it done early so its impact on the evidence is known. These are significant changes, and we must continue to work collaboratively to embed them.Great strides have been made in disclosure management through joint working by Prosecutors and the Police. We have delivered mass training to build expertise, encouraged early discussion on disclosure issues and introduced close monitoring to track performance. But we must continue to push for improvement, and jointly meet the standards set by the Attorney General – and Parliament –so we can provide the service the public rightly expect.

4. General:

  • AG’s Guidelines on Disclosure 2020[5] into force 31.12.20 [NB revised].
  • Replace AG’s Guidelines on Disclosure 2013 & Supplementary Digital Guidelines 2013
  • Intro: “The Guidelines outline the high level principles which should be followed when the disclosure regime is applied throughout England and Wales. They are not designed to be an unequivocal statement of the law at any one time, nor are they a substitute for a thorough understanding of the relevant legislation, codes of practice, case law and procedure.
  • Key points identified by commentators (and Me):
    Length: scale increased from 27x pages (2013) to 44x pages (2020).-Significance: major re-write involving significant layering of Pros obligations.-Structure: follows stages of the disclosure process rather than duties of participants.-Digital / Communications: major revisions, especially re personal / private material.-Presumptive Disclosure:-New sections: Pre-charge front loading / Pre-charge Defence engagement.

5. Circle of Life – 2:

Circle of Life

[C8] Relevant Material: Material may be relevant to an investigation if it appears to an Investigator, or to the officer in charge of an investigation, or to the Disclosure Officer, that it has some bearing on any offence under investigation or any person being investigated, or on the surrounding circumstances of the case, unless it is incapable of having any impact on the case.

[23] Irrelevant Material: It is not necessary to retain material which is incapable of impacting on the case. However, the Investigator should also exercise considerable caution in reaching that conclusion, because the situation may change over time.

Comment: It might have been easier just to say – don’t destroy anything……

B. The Guidelines:

1. Responsibilities of Prosecutor/Investigator/Disclosure Officer:

[14] Disclosure is an integral part of an investigation, not something that should be considered in isolation.

[9] IMDs: The specific strategy and approach to disclosure that will be taken must always be considered at the start of each investigation.

[100a] Get a Grip: in all cases it is essential that the Prosecution takes a grip on the case and its disclosure requirements at an early stage.

[5] Prioritisation: within the Prosecution team is vital to ensure that all disclosure issues are given sufficient attention by the right person.

[8] Working Together: Investigators and Disclosure Officers must […] work together with Prosecutors to ensure that disclosure obligations are met.

[7] Coordination: the role of the Reviewing Lawyer is central to ensuring that all members of the Prosecution team are aware of their role and their duties.

[22b] Parameters of Review: Prosecutors should also assist Disclosure Officers and Investigators in defining the parameters of review and the methodology to be adopted.

[21] Advice & Assistance: Disclosure Officers should seek the advice and assistance of Prosecutors as early as possible.

2. Layering of Responsibility:

[24b] Nothing is Off Limits: there should be no aspects of an investigation about which Prosecutors are unable to ask probing questions.

[22a] Prosecutor Supervisory Obligation: where Prosecutors have reason to believe that the Disclosure Officer has not inspected, viewed, listened to or searched relevant material, or has not done so sufficiently or has not articulated a reason for doing so, they should raise this issue with the Disclosure Officer and request that it is addressed.

[24] Prosecutors must be alert to the need to provide advice to and, where necessary, probe actions taken by the Investigator to ensure that disclosure obligations are capable of being met. This should include advice on potential further reasonable lines of inquiry.

3. Disclosure Practicalities:

[6] Records: Full Log of disclosure decisions and reasons for those decisions must be kept on file and made available to the Prosecution Team. Any Prosecutor must be able to see and understand previous disclosure decisions before carrying out their continuous review function.

[83] Prosecutor Requests for Corrections: a log of such communications should be kept.

[10] Conferences: Regular case conferences should be held, as required, to ensure that Prosecutors are apprised of all relevant developments. Full records, including detailed minutes, should be kept of any such meetings.

[109a] Correspondence: important that Prosecutors keep a record of all correspondence re disclosure.

[109b] Records of Disclosure Decisions: important that Prosecutors keep a record of all disclosure decisions made.

[136] Material Disclosed: a record must be kept, not least in the event of an appeal or a re-trial.

Comment: all this is designed to fix the Lawyer taking over situation e.g. Allan.

4. Schedules:

[58] Content: crucial Schedules detail all relevant material and material adequately described.

[60] Descriptions: on the schedules must be clear and accurate and must contain sufficient detail to enable the Prosecutor to make an informed decision on disclosure.

[59] Thinking Approach: Schedules must be completed in a form which demonstrates a transparent and thinking approach to the disclosure exercise.

[83] Prosecutor Review: must be done thoroughly at an early stage, and Prosecutor must request from Investigator (who must comply) properly completed schedules, alert to possibility that:

(a) No schedules have been provided;

(b) Relevant material may exist which has not been revealed to Prosecutor;

(c) Material has been included which should not have been;

(d) There are apparent omissions from the schedules;

(e) Material is inadequately described or unclear,

[62] Defective Schedules: where relevant unused omitted or material not described sufficiently, and Prosecutor asks Disclosure Officer to rectify, Disclosure Officer must comply timeously.

5. Reasonable lines of Enquiry:

[CP3.5a] CPIA Code Obligation: in conducting an investigation, the Investigator should pursue all reasonable lines of inquiry, whether these point towards or away from the suspect.

[CP3.5b] Reasonable: what is reasonable will depend on the particular circumstances.

[17c] A fair investigation does not mean an endless investigation (unless on an hourly rate…..).

[CP3.5c] [17f] Consult the Prosecutor: It is a matter for the Investigator, with the assistance of the Prosecutor if required, to decide what constitutes a reasonable line of inquiry in each case.

[24] Active Advice: Prosecutors must be alert to the need to provide advice to the Investigator including advice on potential further reasonable lines of inquiry.

[13b] Consult the Defence: What constitutes a reasonable line of inquiry may be informed by others, including the Prosecutor and Defendant.

[17d] Defining Scope: Investigators and Disclosure Officers must give thought to defining, and articulating the limits of the scope of their investigations, thinking how it can be obtained.

[13c] Reasonableness: must be assessed on case-by-case basis, regard being had to: (i) the prospect of obtaining relevant material; & (ii) the perceived relevance of that material.

6. Balance between Right to Fair Trial (Article 6) & Right to Private/Family Life (Article 8):

[11] Gen: when seeking to fulfil disclosure obligations, Investigators & Prosecutors need to be aware of difficult questions when different peoples’ ECHR rights are engaged simultaneously:

(a) Right to fair trial under Article 6 ECHR – Def: which is absolute [13(h)]; and

(b) Right to private and family life – Article 8: privacy of witnesses / complainants.  Intrusion which is justified in accordance with the law, necessary, and proportionate [13(h)].

[13] Principles: sets out the principles which Investigators / Prosecutors should follow when seeking to satisfy disclosure obligations in these circumstances.

[13(g)a] Strict CPIA Compliance: disclosure of personal or private material to the defence is in accordance with the law and necessary if, but only if, it meets the CPIA disclosure test.

[13(g)b] Redaction: Personal information which does not meet this test but is contained within the material to be disclosed should be redacted.

[N6] Attention drawn to guidance in R. v. Bater-James [2020] 2 Cr.App.R. 20, CA (23.06.20)[6].

7. Personal and/or Private Material:

[13a] Law: Collecting and/or processing personal or private material can only be done when in accordance with the law, strictly necessary, and proportionate.  The classic ECHR trilogy.

[13d] Practicalities: when dealing with personal or private material (NB not just phones), Investigators must take an incremental approach to the degree of intrusion and consider:

(i) What review is required ?;

(ii) How review of this material should be conducted ?;

(iii) What is the least intrusive method which will nonetheless secure relevant material;

(iv) Are particular parameters for searching best suited to identify relevant material;

(v1) Is provision of the material in its entirety to the Investigator strictly necessary ?;

(v2) Alternatively, could the material be obtained from other sources ?

(v3) Or, could material be obtained by Investigator viewing/capturing in situ ?

[13e] Transparent Rationale: justification for pursuing the reasonable line of inquiry and scope of the review it necessitates should be open and transparent.  Should be capable of articulation by Investigator.  It should provide the basis for:

(i) Consultation with Prosecutor: who is going to have to consider scope of RLEs for DMD;

(ii) Engagement with the Defence: who may wish to advance counter arguments; and

(iii) Provision of Information to the Witness: about how their material is to be handled.

[13f] Refusal of Material: consider information for witness, reasons for refusal and how trial process could address the absence of such material.  Further liaison ? Use of coercive powers ?

[Example] setting out where there will be no requirement for the Police to take devices from a complainant/witness or others, and vice versa.

8. Digital Material (incl Mobile Phones):

[56a] RLEs: Prosecutors and Investigators must ensure any line of inquiry pursued re the digital devices of a victim / witness is reasonable in the context of the likely issues.

[56b] Case Specific: the decision to obtain and examine a digital device will be a fact-specific decision to be made in each case.  Digital devices should not be obtained as a matter of course.

[57] Strategy: where appropriate, Prosecutors should be consulted to agree a strategy for dealing with digital material which should be set out in a DMD shared with defence.

[56c] Return: where digital devices are obtained, if it becomes apparent that they do not contain relevant material they should be returned at the earliest opportunity.

[A9 & 11] Coercive or Consent: emphasis on obtaining devices by cooperation: meaning ?

[A12] Further CPS Guidance: endorsed in E [2018] EWCA Crim 2426, CA [N14]:

(i) Disclosure – A guide to “reasonable lines of enquiry” and Comms evidence (24.07.18)[7];

(ii) Disclosure – Guidelines on Communications Evidence (26.01.18)<sup<[8].

Discussion re Issues:

Phone are a nightmare: contain vast quantities of so many different types of data: comms, location, images, health; wifi; Court assertions naïve – e.g. screenshots of comms.

(a) Evidence: ignores the fact that Investigators will frequently want access to phone material for the purposes of obtaining evidence relating to the offence, and sometimes in order to actively demonstrate in evidence the communication of lack of communication of a Compl.

(b) Timing: often only get one realistic opportunity to obtain material, and a decision may have to be taken on the basis of incomplete information, e.g. when the Compl walks into Police St;

(d) 3-Way Tension: may be other rights in play.  E.g. a Compl whose physical integrity violated has complained to state, has right to proper investigation and justice. E.g. 2 Multiple Suspects.

Constructive Suggestions:

  1. Only pursue RLEs where actual reasonable; obtaining phones may be perfectly reasonable.
  2. Knee-Jerk: don’t drop cases simply because the Compl won’t hand Police their phone.
  3. Technology: invest in properly-trained Officers and tech to download phones quickly.

9. Large Volume Digital Material – 1:

[A9, 10] Seizure: think before you search, think before you seize.

[55a] Large Digital Volume: where investigations involve a large quantity of digital material it may be impossible for Investigators to examine every item of such material individually. Therefore there should be no expectation that this should happen.

[55b] RLEs: Investigators and Disclosure Officers must decide how best to pursue RLEs in relation to the relevant digital material, the extent and manner of which are appropriate to the issues.

[20] Scope of Disclosure Officer Review: where detailed examination of every item of material seized would be disproportionate, Disclosure Officer can apply search techniques using the principles contained in Annex A.

[A39] Granularity: it is not the duty of the Prosecution to comb through all the material in its possession (e.g. every word or byte of computer material) on the lookout for anything which might conceivably or speculatively undermine the case or assist the defence.

[A44] Examination: DMD should explain how material identified actually examined.

9. Large Volume Digital Material – 2:

[A2a] Initiation: Investigator should complete IMD which informs the DMD.

[A2b] Consultation: Investigator should consult Prosecutor, ideally before seizure takes place.

[A42a] Digital Search Strategy: Disclosure Officer should develop a digital search strategy in conjunction with the Prosecutor and shared in the DMD with Court & Defence.

[A2c] Expert Advice: Prosecutor may seek advice from digital forensic specialist on the strategy for the identification and review of digital material, including potential timings for this.

[A4, 43] Defence Engagement: defence should play their part in defining real issues and participate in the defining the scope of reasonable searches, agree/refine suitable search terms..

[A6c] Audit Trail: audit trial should be kept of all processes followed.

[A41b] Intelligent Searches: search by sample, key words, other appropriate (technological) search tools or analytical techniques to locate relevant passages, phrases and identifiers.

[A45] Multiple Passes: consider further sampling and searches as disclosure stages unfold.

[A46-49] Record-keeping: record of the digital material, strategy for review, conduct of review.

[A50-53] Scheduling of Product: [detailed guidance]

10. 3rd Party Material:

[CP3.6] Primary Obligation: if the OIC believes that 3rd parties may be in possession of material that may be relevant to the investigation, they should ask the Disclosure Officer to inform the 3rd party of the existence of the investigation and to invite them to retain the material in case they receive a request for its disclosure.  The OIC is not required to make speculative enquiries of 3rd parties.  There must be some reason to believe that they may have relevant material.

[28a] Consultation: it is for Investigators, in consultation or discussion with Prosecutors, to pursue all reasonable lines of inquiry.  Prosecutors should advise on additional RLEs.

[28b] Monitoring: Prosecutors should satisfy themselves the RLEs they advised have been done.

[44] Defence Updates: defence should be informed of what steps have been taken to obtain material and what the results of the inquiry have been.  Presumably via DMD.

[43] Guidance / Best Practice: see: (i) Joint Protocol on Third Party Material;[9]; and

(ii) CPS Disclosure Manual – Chapter 5[10].

11. Pre-Charge Engagement (“PCE”) [Annex B]:

[25] Gen: In some investigations it may be appropriate for OIC to seek engagement with the defence at the pre-charge stage. Likely to be where it is possible that PCE will lead to defence volunteering additional information which may assist in identifying new lines of inquiry.

Annex B sets out the process for any such pre-charge engagement.

[B3a] Voluntary: it is entirely voluntary and may be terminated at any time.

[B3d & 7b] Adverse Inferences: no adverse inferences from declining to engage in PCE.

[B3b] Scope: has no application to further PACE interviews.

[B8-9] Overlap with Interview: should not be used re matters where Police are likely to seek to rely on contents of Suspect’s answers or silence (adverse inferences) in evidence.

[B4] PCE Examples: potential further RLEs, potential witnesses, existence of / approach to digital material, medical records, agreeing expert evidence.

[B20, 25-30] Recording: should always be documented (omg – see the rules……).

[B22-24] PCE Disclosure: may have to be considered so process fair and Suspect not misled.

Comments re PCE:

Active Defence: potentially useful tool where defence actively pursuing a disclosed defence, and want to point the Investigator to material which may exonerate the Def.

-E.g. CCTV: if know that there would be material coverage, may alert Investigators to its existence before is it destroyed by overwriting.

-Digital Material: potentially very significant.  Investigation by correspondence ?

Funding: currently no practical provision for the funding of such engagement via LA.  Niche option only available where the Def has the financial resources to fund lawyer intervention.

Voluntary: procedure said to be voluntary, risk that it may shift the emphasis from the obligation on Investigators onto the defence; shift in Police mindset if no PCE.

12. Timing of Revelation to Prosecutor – “Front-Loading”:

[75a] RLEs: Prosecutors must ensure all RLEs likely to affect the application of the Full Code Test have been pursued before the Test is applied, unless the Prosecutor is satisfied that any further evidence or material is unlikely to affect the application of the Full Code Test.

[75b] Deferral of Charging Decision: failure to pursue reasonable lines of inquiry may result in the application of the Full Code Test being deferred, or in a decision that the Test cannot be met.

[71a] FCT: where Police are seeking a charging decision from CPS under Full Code Test, and a not guilty plea is anticipated, the unused material schedules should be provided to CPS at the same time as seeking this charging decision.

[76] Threshold Test: Prosecutors and Investigators need to be proactive in ensuring that any outstanding lines of inquiry are pursued and that the case is kept under continuous review.

[71b] Police Charging Decision: if a not guilty plea is anticipated, Schedules should be provided to Prosecutor when case file submitted to CPS.

[97] Written Confirmation: so that Prosecutor can complete DMD at early stage, Investigator should, at the point of or prior to charge, provide written details re lines of inquiry pursued.

13. Initial Duty of Disclosure:

[100b] Prioritisation: Prosecutors must adopt a considered and appropriately resourced approach to providing initial disclosure.
[104] Timing: Best practice where NG plea anticipated is service of initial prior to PTPH.

[106] Large & Complex / SFO Cases: robust case management, initial DMD, phased disclosure.

[4] Strict CPIA Test: statutory disclosure regime does not require the Prosecutor to disclose:

(a) Neutral material; and/or (b) Material which is adverse to the Def.

[4] Disclosure must be completed in a thinking manner, in light of the issues in the case, not simply as a schedule completing exercise.  R. v Olu, Wilson & Brooks[11]: disclosure should not be a “box-ticking” exercise: Not undertaking the process in a mechanical manner… keeping the issues in mind… …being alive to the countervailing points of view …considering the impact of disclosure decisions …keeping disclosure decisions under review”.

[64] Revelation of Borderline Material: Disclosure Officers must draw material to the attention of the Prosecutor where they have doubt as to whether it satisfies CPIA test.

13A. Presumptive Categories:

[C6.6] Presumptive Categories: identifies categories of material likely to include information which meets the test for Prosecution disclosure. This material must be scheduled and provided to the Prosecutor.  In reviewing this material, Disclosure Officers and Prosecutors are to start with a presumption that it is likely to meet the disclosure test, although the material will need to be carefully considered and the disclosure test applied before a decision is made.

[89a] Presumption of Disclosure: As this material is likely to contain information which meets the test for disclosure, Prosecutors should start their review of the material with a presumption that this material should be disclosed to the defence.

[89b] However, in every instance the disclosure test should be applied in a thinking manner.

[91] This list of material is not intended to cause automatic disclosure.

[C5.4, 6.6] [87]

(a) Records from telephone calls containing descriptions of offence / offender e.g. 999 calls;

(b) Incident logs;

(c1) Crime Reports / Investigation Logs: e.g. Met CRIS;

(c2) Police Notebooks / Notes: e.g. of Police / witness accounts;

(c3) Police Accounts of Information relevant to an incident: e.g. PBk Note of witness account;

(c4) Records of Police Actions: e.g. house to house enquiries;

(c5) CCTV / other imagery of Incident: e.g. BWV;

(d) Custody Records: consistent with the statutory right of access to copy;

(e) Previous Accounts of Compls / Witnesses;

(f) Interview Records of actual / Potential Witnesses / Suspects: likely to be evidential;

(g) Material Casting Doubt on Witness / Co-Def Reliability: e.g. relevant previous convictions;

Comment – Presumptive Categories:

Far be it from me to question what this actually – logically – means.

Choices for the Prosecutor: documents falling into these categories, effectively leaving the hard-pressed Prosecuting lawyer with 200+ cases in their in-tray with 2x choices:

(a) Cursory Review: on the basis of the presumption; or

(b) Full Review: spend hours ploughing through material in order to rebut the presumption, i.e. to provide a complete reassurance that it contains in practical terms nothing which meets the test.

Goodbye Proper Review: In the short term may well encourage disclosure in the majority of cases. But it may do so at the expense of proper review of unused material, both by the Lawyer and equally by the Investigator.

In practice: disclosure of these categories of material likely to become near automatic.

Reality: Is that not what the AG wants, without appearing to undermine the strict CPIA test ?

14. DMDs:

[96] Obligation: DMDs required in all Crown Court cases.

[98] Service: with Initial Disclosure.

[92] Responsibility: Prosecutor prepares from information provided by Investigator.

[94] Contents: guidance issued. Strategy re: RLEs, Digital material, video; 3rd party.

[99, Annex C] Draft Template.

[93] Re-issue: DMD is working document which should be kept up to date as case progresses.

[111] Case Management: a focus of the PTPH must be on the disclosure strategy. This will involve defence identifying likely trial issues, discussion of additional LEs, scrutiny of DMD.

[113] Proactive Defence: if defence do not feel that the Prosecution have adequately discharged their obligations then this must be brought to the court’s attention at an early stage. The defence should be proactive in ensuring that any issue is addressed, and must not delay raising these issues until a late stage in the proceedings. The DMD may be relevant in any challenge raised.

Comment re DMDs:

-At PTPH the Court is supposed to review DMD and check that Defence content with strategy outlined.

-Defence rarely have sufficient information at that stage to do so.

-Some may take the view that in many Courts there is simply no judicial enthusiasm for early engagement with PTPHs let alone DMDs.

15. Defence Statements:

Stage 2: Defence statements [paras 121 to 126]:

[124a] Review: It is vital that Prosecutors consider defence statements thoroughly.

[124b] Inadequate DS: Prosecutors should challenge the lack of or inadequate defence statements in writing, copying the document to the court and seeking directions to require the provision of an adequate DS.

[126] Disclosure Requests: these should ordinarily only be answered if the request is relevant to, and directed to, an issue identified in the defence statement. If it is not, then a further or amended defence statement should be sought and obtained before considering the request.

[125] Guidance to Disclosure Officer: Prosecutors must provide guidance to the Disclosure Officer about the key issues, including:

(a) whether any further reasonable lines of inquiry need to be pursued;

(b) guidance on what to look for when (re-)reviewing the unused material; and

(c) guidance on what further material may need to be disclosed.

16. Stage 3-4 & Trial:

Stage 3: Continuing Disclosure [127-128];

Stage 4: s8 Applications for Disclosure [129-131];

Trial: Advocates at trial [paras 132 to 136].

[134a] Continuing Review: all decisions must be kept under review until the conclusion of the trial, whenever possible in consultation with the reviewing Prosecutor.

[134b] Tools: the Prosecution advocate must in every case specifically consider whether they can satisfactorily discharge the duty of continuing review on the basis of the material supplied already, or whether it is necessary to reconsider the unused material schedule and/or unused material.

[135] CPIA Compliance: Prosecution advocates must not abrogate their responsibility under CPIA 1996 by disclosing material which does not pass the test for disclosure. This is especially so where it is proposed to disclose material engaging Article 8 rights.

C. Thoughts on a Postcard:

1. Defence Sols / Advocate:

  1. Pre-charge: consider early engagement directing the Investigator towards rble lines of enquiry where this will assist in revealing material assisting Def’s case; secure LA if possible.
  2. Schedules: insist on production of full, properly descriptive MG6C so that proper consideration can be given to s8 appltns. Make the Prosecutor accountable.
  3. Presumptive: insist on full disclosure of presumptively-disclosable material. Take advantage where Prosecutor / Court unlikely to be interested in actively reviewing presumptive material.
  4. DMD: insist on full and accurate DMD, which does identify the strategy re reasonable lines of enquiry and also digital material. Consider suggesting further lines of enquiry / key words etc. that will advance the case for the Def.
  5. Review the Material: it is possible to claim GFS Fees for reviewing unused material, although the hourly rate is low, and the work done is not guaranteed to be paid at the end of the case.
  6. Know the Law: study the AG’s Guidelines, they are your friend. There is so much useful material to deploy, and strictly enforced the burden on the Prosecutor is huge and onerous.

2. Prosecutors / Prosecution Advocates:

  1. Pre-charge: insist on revelation of all potentially disclosable material to Prosecutor so that the full scope of assisting / undermining material is known from the outset. What may initially appear to be a weakness or matter of concern, may when properly explored turn out not to be a problem, or capable of explanation; why are they not actually weaknesses after all.
  2. Schedules: insist on production of full, properly descriptive MG6C Schedule. Greater engagement with the full scope of the investigation gives rise to early evidential case-building opportunities. Unused material is not a monkey on your back it is usually a gold mine of evidential opportunity.
  3. Presumptive: insist on full revelation of presumptively-disclosable material. Take advantage of fact Prosecutor / Court is unlikely to be interested in actively reviewing material in these categories.
  4. DMD: insist on full and accurate DMD, which does identify the strategy re reasonable lines of enquiry and also digital material. Consider suggesting further lines of enquiry / key words etc. that will advance the case for the Def.

[1] https://www.cps.gov.uk/publication/joint-review-disclosure-process-case-r-v-allan

[2] https://www.gov.uk/government/publications/criminal-procedure-and-investigations-act-1996-section-231-code-of-practice

[3] https://www.cps.gov.uk/sites/default/files/documents/legal_guidance/Directors-Guidance-on-Charging-6th-Edition.pdf.

[4] https://www.cps.gov.uk/cps/news/new-cps-guidance-charging-Police-and-Prosecutors [accessed 20.06.21].

[5] https://www.gov.uk/government/publications/attorney-generals-guidelines-on-disclosure-2020

[6] https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Crim/2020/790.html&query=(Bater-James)

[7] https://www.cps.gov.uk/legal-guidance/disclosure-guide-reasonable-lines-enquiry-and-communications-evidence

[8] https://www.cps.gov.uk/legal-guidance/disclosure-guidelines-communications-evidence

[9] https://www.cps.gov.uk/sites/default/files/documents/publications/Joint-Protocol-on-Third-Party-Material-2018.pdf

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

[11] [2011] 1 Cr.App.R. 33, CA (21.12.10) at [42] – [44].

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