The disclosure of unused material in criminal cases remains a crucial part of ensuring a fair trial takes place and is essential in avoiding miscarriages of justice. Unfortunately, the failure to disclose material promptly has led to the collapse of a number of trials and has impacted on the public’s confidence in the administration of the criminal justice system.
It is a priority for this Government to continue to encourage improvements in the disclosure process and to achieve permanent change. It is essential that we ensure there are fair trials for all and that we increase confidence in the criminal justice system.
The Proposed Changes
In November 2018, the Government published a Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System, which made a set of recommendations to improve disclosure performance and to address the key challenges of modern disclosure practice. The Review recommended that the Attorney General’s Guidelines on Disclosure required an update in order to truly reflect the challenges of today’s disclosure regime.
The Guidelines provide a set of high-level principles on the disclosure of unused material in criminal cases, aimed at assisting investigators, prosecutors and defence practitioners in England and Wales apply the disclosure regime contained in the CPIA Code of Practice.
The changes seek to provide a better representation of the challenges the modern-day investigator, prosecutor and defence practitioner faces. The updated Guidelines address the need for culture change, earlier performance of disclosure obligations, the use of technology and balancing the right to privacy with the right to a fair trial.
This is an opportunity to take a crucial step in the disclosure process, both to deal with issues that have been a long-standing concern and to provide practitioners with the tools they need to handle their disclosure obligations effectively.
Following the successful Parliamentary passage of the Statutory Instrument in relation to the Code of Practice, I can now confirm that both the Guidelines and the Code will be effective from 31st December 2020. The Lord Chancellor and I thank all of those who have engaged with us during the process and we are grateful for the role that they have played in recognising the complex challenges that affect the proper performance of the duty of disclosure.