The revised guidance from the office of the Attorney General, in force from 31 December 2020, also follows the growing numbers of cases in recent years marked by failings to disclose evidence to defence lawyers. Here, we focus on the aspects relating to digital disclosure.
The guidance makes clear that digital devices should not be obtained by investigators or prosecutors as a matter of course.
What’s the background?
The last iteration of the guidelines dates back to 2013. Importantly, the new guidelines also replace the supplementary guidelines on digital material (2013). These revisions follow the 2018 review of the efficiency and effectiveness of disclosure in the criminal justice system, and considerable amounts of work by the police and the CPS to improve disclosure practice.
That review highlighted a number of concerns relating to the culture around disclosure and engagement between the various parties – as well as the challenge of the “exponential increase” in digital data.
It recommended, in the context of digital disclosure, that guidance should be updated to provide simpler, clearer and more practical assistance on digital material; along with more guidance on how prosecutors can approach sifting and examining large quantities of digital data.
In the consultation paper that followed that review, the Attorney General stated that a high proportion of crime cases will have large volumes of digital data.
Key changes involving digital disclosure include:
- Balancing the right to a fair trial with privacy rights. Investigators and prosecutors should not, it says, ordinarily pursue enquiries concerning complainants’ or witnesses’ personal information as a matter of course, but must first be satisfied they are pursuing a reasonable specific and identifiable line of inquiry.
- The right to a fair trial is an absolute right. This means it can trump the right to privacy, so the police and the CPS may need to investigate personal matters, such as the contents of a mobile phone.
- Encouraging early disclosure. In the case of a ‘not guilty’ plea in the Crown Court, initial disclosure should be served before the plea and trial preparation hearing. In its consultation, the Attorney General said pre-charge engagement could particularly be helpful in identifying any further reasonable lines of inquiry, agreeing key word searches of digital material, and discussing potential witnesses.
The defence role
While naturally focused heavily on the role and obligations of the CPS and investigators, the guidance is clear that the defence must also play their part in defining the “real issues” in a case (as required by the overriding objective of the Criminal Procedure Rules 25F).
Prosecutors should invite the defence early on to help in defining the scope of the reasonable searches that may be made of digital material in order to identify material that might reasonably be expected to undermine the prosecution case or assist the case for the defence. Such an approach means the court can discharge its case management powers robustly.
The important appeal court ruling in R v CB and R v Sultan Mohammed  EWCA Crim 790
is also worth a mention here by way of reminder. Two appeals heard together concerned various issues relating to the retention, inspection, copying, disclosure and deletion of electronic records held by prosecution witnesses.
The court laid out important principles around digital records which defence practitioners should be familiar with. This ruling, together with the revised disclosure guidelines, form a solid reference to how digital disclosure and electronic evidence should be properly approached.