Guidelines on Disclosure – Review Process

As a solicitor who regularly has to litigate criminal cases in a manner designed to overcome the inherent failings in the current disclosure regime, I have read with interest the draft Attorney Generals guideline on disclosure which is going through what I hope will prove to be a rigorous review process.

My experience of the system at present is that it is possible to obtain the unused material necessary to defend a case, but there is often an unnecessarily difficult process involved in obtaining it. Unless a defendant’s solicitor pursues disclosure requests in a diligent and determined manner, important material can remain unseen by the defence or be served so close to trial that prejudice may already have arisen.

What I have found particularly frustrating today is reading an intelligently drafted Disclosure Management Document, in which the prosecution correctly identify categories of material which will be of use to the defence, only to find that the material in question is still marked as being “Clearly not disclosable” on the schedule of unused material. Out of over 1000 items of unused material there was one single item marked to be disclosed to the defence at the primary disclosure stage, and the prosecution have failed to send that item to us.

Although it is easy to identify flaws in the current disclosure process, it will be an infinitely more challenging process to identify solutions and to implement them so as to effect meaningful change. The proposals do put forward some good ideas, such as a presumption in favour of disclosure in relation to some categories of material and greater scope for defence involvement at a pre charge stage. I have no doubt there will be some benefits arising from the proposed guideline, but am sceptical as to whether or not the proposals are sufficiently fundamental in themselves to cure all of the problems that defence solicitors encounter on a day to day basis.

Not only is it the application of rules on disclosure that are ripe for review, it is important that solicitors are remunerated for their work in relation to the material that is ultimately disclosed pursuant to those rules. Criminal lawyers would welcome an outcome to the current funding review which would enable us to be adequately remunerated for such work. One of the potentially beneficial recommendations in the draft guidance is for early defence engagement in relation to the subject of unused material. If the proposal is to derive positive benefits then it is essential that is allied to a change to the legal aid funding regime to enable such work to take place with adequate funding.

Cartwright King has lawyers in most areas of law, and the current information we are sharing is written by fraud lawyer John Allchin of Cartwright King.

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