Revised Attorney General’s Guidelines on Disclosure 2024

Introduction

Although the disclosure regime in criminal cases changed significantly with the Criminal Procedure and Investigations Act 1996, it was not until 2013 that the Attorney General first introduced Guidelines on Disclosure.

The 2013 Guidelines focused on disclosure generally, although Annex A addressed digital material.  For defence practitioners such as Olliers with a particular interest in the pre-charge stage of the case the Guidelines of 2020 were particularly significant because that saw the introduction of Annex B – pre-charge engagement.

The latest Guidelines do not contain significant changes in relation to Annex B (although reference is made to pre-charge engagement in the amended Annex A). The major amendment to the Guidelines is in relation to digital material and there is a lot more detail at Annex A. The paragraphs below set out the position.

The history of disclosure guidelines

The Attorney General’s Guidelines on Disclosure 2024 (‘the Guidelines’) were published on 29 February 2024 and are effective from 29 May 2024. They are issued by the Attorney General (‘AG’) for investigators, prosecutors and defence practitioners on the application of the disclosure regime contained in the Criminal Procedure and Investigations Act 1996 (‘CPIA’) Code of Practice Order 2020.

The 2024 Guidelines replace the existing Attorney General’s Guidelines on Disclosure issued in 2013 and the Supplementary Guidelines on Digital Material issued in 2013, which is an annex to the general guidelines. Since 2013, the 2013 Guidelines have been updated twice, in 2020 and 2022.

The Guidelines ‘outline the high level principles to be followed when the disclosure regime is applied throughout England and Wales. They are not unequivocal statement of the law at any one time, nor a substitute for a thorough understanding of the legislation, codes of practice, case law and procedure’. Whereas the Guidelines published by Dominic Grieve way back in 2013 ran to 27 pages, the 2024 Guidelines run to some 52 pages.

A key feature of the 2022 Guidelines was, for many, the formalisation, at Annex B, of the concept of ‘pre-charge engagement’, the 2024 Guidelines expand upon the Guidelines in relation to Digital Material (see Annex A). There is also a new Annex D on ‘redaction’ but that is arguably more of a GDPR issue and not mentioned by the Solicitor General in the comments that accompanied the publication of the Guidelines.

Statement by Solicitor General, Robert Courts KC MP

Accompanying the publication of the Guidelines, Solicitor General, Robert Courts KC MP, said:

“A robust and fit-for-purpose disclosure regime is essential for an effective criminal justice system and maintaining public trust. This has been demonstrated by high profile prosecutions, such as the Horizon scandal where disclosure has not been undertaken properly.

But advances in modern technology have substantially increased digital materials and created significant challenges for investigators, prosecutors and defence practitioners alike – especially in complex cases and fraud investigations.

It is right that we address these challenges and strengthen the disclosure regime.

Following a review of the guidelines, where we have worked closely with criminal justice agencies, I have updated the Attorney General’s Guidelines on Disclosure – specifically guidance on digital materials.

Changes to the current guidance include highlighting the importance of having effective strategies for block listing, as well as encouraging better engagement between Prosecutors and Defence at both pre and post-charge stages.

Central to the above is the reference to ‘the importance of having effective strategies for block listing, as well as encouraging better engagement between Prosecutors and Defence at both pre and post-charge stages.”

Annex A – Digital Material

Annex A contains exactly the same sub sections as in the previous Guidelines, namely;

1. General principles for investigators
2. Obtaining devices by seizure or co-operation
3. Police and Criminal Evidence Act 1984
4. The Criminal Justice and Police Act 2001
5. Retention
6. Legal professional privilege
7. Excluded and special procedure material
8. Encryption
9. Sifting and examination
10. Record keeping
11. Scheduling

Indeed, the content is also almost identical until the final section on ‘scheduling’ of digital material.

Scheduling under Annex A

The provisions for scheduling are far more onerous, with new sections below

• Material should not be viewed in isolation – items taken alone may not undermine the prosecution case/assisting the defence, several items together can have that effect.
• Disclosure officers to apply appropriate strategy to block listing, to ensure that all relevant material has been reviewed. If the review identifies material in any block that meets the disclosure test, that material must be described and scheduled. The description of the disclosable material must cross refer to the block, and metadata, it emanated from.
• Investigators encouraged to adopt a method of review which utilises the technologies available to them to in order to search and extract relevant material.
• Where appropriate, and in accordance with Annex B – Pre-charge Engagement, the defence should be invited at an early stage to make representations about the planned approach to block listing, with records of all communication retained (so greater opportunity pre charge defence involvement).
• Post-charge, prosecutors and defence should continue to engage regarding planned approach to block listing. A lack of defence engagement should be drawn to the attention of the court and the reasons for this explored at the earliest opportunity – (again greater defence involvement)
• Prosecutors not expected to review every item included within a block. Instead, prosecutors should agree a disclosure strategy with investigators, which should include consideration of the parameters of relevance and the steps that will be taken to identify material likely to meet the test for disclosure. This should be recorded in the IMD, and subsequently a DMD (so, more strategic thinking between police and prosecutors)
• Having agreed the strategy, prosecutors should then satisfy themselves in respect of material covered by the block, that the disclosure officer has adopted an appropriate approach to implementing that strategy, and in particular has been sufficiently thorough in identifying material which might satisfy the test for prosecution disclosure. The steps taken by a prosecutor to check the approach taken by the disclosure officer should be recorded in the DMD – (so prosecutor reviewing work of disclosure officer)
• An acceptable review of a block list by the prosecutor could include, but not limited to: a. Reviewing a representative sample of the material listed in the block; b. Reviewing any items from the block which have been listed, and described separately where the disclosure officer considers they might satisfy the test for disclosure, and assessing the accuracy of the disclosure officer’s determination; c. Considering any file of metadata provided in within the block
• When material is listed in a block or blocks, disclosure officers and prosecutors to bear in mind that schedules demonstrate a transparent and thinking approach to the exercise –  There should be a clear and obvious connection between the material listed so that the contents of the block can be easily understood.
• Disclosure Management Document (DMD) to set out how the material covered by each block has been reviewed. Where digital material involved, details of how relevant material has been identified, (eg; search terms), should also be set out in the DMD.
• Each block should be given a generic title which includes the quantity of the material and contains a high-level summary of the contents.
• Where metadata available for items within a block, consideration to be given to creating a file of that metadata and separate listing as a sub-volume to the block to which it relates.

Olliers Solicitors – specialist pre-charge investigation lawyers

There can be no doubt that the new Disclosure Guidelines are intended to encourage greater thought and effort from investigators, disclosure officers and indeed prosecutors. Equally, they also require and anticipate greater defence involvement in the process both pre-charge and post-charge.

If you face criminal investigation please contact our specialist team by completing the form below or telephoning 0161 834 1515 (Manchester) or 020 3883 6790 (London) or email info@olliers.com.