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MA responds to consultation on disclosure

Consultation response


28 April 2020
MA responds to consultation on disclosure

The MA has responded to the Attorney General's consultation on revisions to the Guidelines on Disclosure and CPIA Code of Practice. The consultation proposed revisions to the disclosure guidelines in response to challenges of modern disclosure practice, including the increase of digital material and the delays this can cause.

The MA's response made the following points:

  • We welcomed the introduction of the rebuttal presumption, and agreed the proposed list seems a reasonable baseline of what unused material should be presumed to be disclosable. However, we expressed concern over the removal of ‘CCTV footage of the crime in action’ from the list, as even though it is highly likely that this will be used as evidence, it is important for it to be provided to the defence as unused material to cover those cases where it is not used as evidence
  • We supported the revision of the guidelines to ensure that investigators and prosecutors do not pursue enquiries which involve collecting personal information as a matter of course, but that any decision to do so must be case-specific. Care must be taken to ensure any personal information is treated appropriately. We pointed out that when someone's personal device (such as a phone or tablet) is seized, this may result in access to information about third parties not directly connected to the case, and their right to privacy will also therefore be engaged
  • We noted that for cases dealt with by magistrates, the increase in availability of CCTV evidence is not the only relevant issue, but also the increased likelihood that defendants and witnesses will have evidence in the form of messages, photos and videos captured on their phones. We welcomed the guidance about the approach to be taken in responding to digital evidence, particularly the recommendation that the defence should be involved pre-charge in agreeing search words/terms when digital searches of material are being undertaken
     

The full response can be found here.

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