What are the Attorney General’s Guidelines?

The new Guidelines are issued by the Attorney General for investigators, prosecutors and defence practitioners on the application of the regime contained in the CPIA 1996. They are intended to clarify the processes that are required and the roles each relevant party must play, as well as setting out examples of best practice. In other words. In other words, the Guidelines ensure cases are referred to the Crown Prosecution Service (CPS) at the right time, with the right material and information so that prosecutors could make changes prior passing the case to the criminal justice system effectively and efficiently. The new Guidelines came into force on 31 December 2020.

In November 2018, the Attorney General’s Review of the efficiency and effectiveness of disclosure in the criminal justice system (‘the Review’) was published. This was the signal for proposing the new Attorney General’s Guidelines in 2020.

Sancus CPIA (Disclosure) training has been updated to incorporate the new Attorney Generals Guidelines on Disclosure.

What issues did the Review point out?

The Review highlighted specific key subjects which needed to be updated in accordance with today’s practices. One of the key areas why the new Guidelines were produced was the need for leadership and culture change throughout the criminal justice system in order to improve the performance of disclosure obligations. The Review itself contains recommendations for early and fully performing disclosure obligations.

The need for proposing the new Guidelines was also laying in changing the culture of disclosure obligations which were insufficiently prioritised as the paperwork was not completed on time or to the necessary standard which led to the effectiveness of the case and the final judgement. Furthermore, more issues have been identified relating to prosecutors as they failed to challenge the gaps in the investigations and signing off on inadequate unused schedules.

The new Guidelines also proposed its “rebuttable presumption” in favour of disclosure for certain items of unused material which the police have in their possession. This category sets out a list of material which is highly likely to meet the test for the disclosure and includes crime reports, incident logs and records of interviews with potential witnesses or suspects. However, this may be said that presumption will be only effective if proper training will be delivered to the investigators and prosecutors.

One of the other findings was the right to a fair trial. The Review made it clear that the right to a fair trial is an absolute right, and therefore, in certain cases, it may supersede the right to privacy. For the investigators and prosecutors, this means, depending on the facts of the case in question, there is a need to investigate personal matters.

Intrusions into privacy should only be carried out, however, where:

  • It is necessary to do so to secure a fair trial; and
  • The lines of inquiry being pursued are reasonable.

The Review has also urged that disclosure needs to be carried out at the earliest stage possible. It also emphasis on benefits such as reduction of all disputes with the disclosure in the late stage of the proceeding.

However, in terms of digitalization, the Review also did not forget to recommend the Guidelines should be updated to provide simpler, clearer, and more practical assistance on digital material, which keeps pace with all changes.

What Max Hill QC (Director of Public Prosecutions) says about the new Guidelines?

Max Hill QC pointed out that the changes are “significant” for the public service to receive the service it “rightly expects”.

“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.”

Max Hill QC

We offer bespoke ‘in house’ CPIA (Disclosure) training packages, incorporating the new Attorney General’s Guidelines, tailored for individual organisations and delivered at a venue of your choice. The course is written and presented by former police investigators with extensive experience in being involved in undertaking disclosure of unused material.

Click here to access more details about the course.