Getting people thinking and talking: An exploration of the Attorney General’s 2020 guidelines on disclosure
| Author | Cerian Griffiths |
| DOI | http://doi.org/10.1177/13657127221124362 |
| Published date | 01 October 2022 |
| Date | 01 October 2022 |
| Subject Matter | Articles |
Getting people thinking and
talking: An exploration of the
Attorney General’s 2020
guidelines on disclosure
Cerian Griffiths
Northumbria University, Newcastle upon Tyne, UK
Abstract
This article evaluates the recent Attorney General’s Guidelines on disclosure in criminal cases. These
Guidelines signal a further step away from adversarialism, towards an internally incoherent justice
system which incorporates managerial characteristics, alongside increasing elements of inquisitorial-
ism. Whilst still promoting the rhetoricof adversarialism, these changes have the potential to recon-
figure the role of the suspect and the court in such a wayas to circumvent the protections inherent in
the adversarial system. This article considers two areas of the Guidelines, pre-charge engagement
and the enforcement of a ‘thinking manner’approach to the disclosure exercise. By considering
these two expansive areas, a broader perspective of the Guidelines is taken in order to fully appre-
ciate their significance. The impact of these newly minted Guidelines is not yet apparent, but this art-
icle postulates the potential longer-term ramifications of the changes and ultimately concludes that
the Guidelines will result in further systemic incoherence which undermines suspect and defendant
rights, and fundamentally reconstitutes courts as adjudicators of criminal investigations.
Keywords
adversarialism, criminal process, disclosure, pre-charge criminal procedure
Introduction
The recent Attorney General’s Guidelines
1
on disclosure in criminal cases (hereafter the ‘Guidelines’)
signal a step away from the remnants of English adversarialism, towards a confused criminal system
Corresponding author:
Cerian Griffiths, Northumbria University, City Campus East, Newcastle upon Tyne NE1 8ST, UK.
E-mail: cerian.griffiths@northumbria.ac.uk
1. The Guidelines published in 2020 have been updated in 2022, adding changes to areas such as presumed disclosable material,
redacted material, and third-party material. In only one instance are the changes pertinent to this article and this is detailed below.
Otherwise, the original 2020 Guidelines are cited.
Article
The International Journal of
Evidence & Proof
2022, Vol. 26(4) 359–380
© The Author(s) 2022
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DOI: 10.1177/13657127221124362
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which unites characteristics of inquisitorialism and managerialism with an increased participatory view of
the defendant.
2
Introducing a series of significant alterations to the role of the court and the defendant, the
Guidelines are potentially the most significant revision of English and Welsh criminal process since the
introduction of the Criminal Procedure Rules (CrimPRs) (Ministry of Justice, 2005, updated 2020).
Directed at those involved within the disclosure process and with judicial oversight, the Guidelines
are ‘high level principles which should be followed when the disclosure regime is applied’(Attorney
General’sOffice, 2020b).
Unfortunately, the Guidelines do not move the criminal justice system towards a coherent alternative
to adversarialism, instead introducing changes which inject managerial characteristics, alongside ele-
ments of inquisitorialism, and a re-envisioning of the role of suspects. The potential consequence of
these alternations is further internal fragmentation of a justice system which already struggles with its
identity. Such fragmentation removes or replaces aspects of the adversarial system, undermining many
of the safeguards for suspects and defendants inherent in the system, and repositions the role of criminal
justice actors such as the courts without regard to the practical consequences of such alterations.
The Guidelines introduce changes which impact upon a broad range of procedures and practices both
before and during the criminal trial. This article cannot consider all the changes, but two of the most sig-
nificant have been chosen to explore the potential impact of the Guidelines: the requirement of a ‘thinking
manner’in disclosure processes, and significant changes to pre-charge disclosure practices. The introduc-
tion of requirements for prosecution teams to execute disclosure duties using a ‘thinking manner’
(Attorney General’sOffice, 2020b: para. 3) will require the court to assess and make meaningful judg-
ments on whether disclosure processes have been properly carried out. To achieve this courts will, in
effect, be required to delve through the details of a specific investigation ex post facto. This process
will be time-consuming and has the potential to be extremely intrusive, radically changing the role of
the court into an overseer of investigations, further defining the court as manager of trials, rather than
a traditional adversarial conception of the judge.
The Guidelines do not present a systemically coherent vision of disclosure within the justice system.
Alongside the embedding of managerial expectations of the court to enforce the Guidelines, the
Guidelines’pre-charge regime re-envisages the suspect as a greater source of evidence, not seen since
pre-adversarial England (Gimson, 2020). This vision of the suspect harnesses characteristics of partici-
patory, or even inquisitorial systems, where the suspect is seen as an important evidential resource,
and not as a special party to the investigation worthy of additional rights (Hodgson, 2020). Whilst man-
agerialist and participatory systems are not inherently contradictory, but introducing such measures into a
system loyal to the idea of adversarialism, whilst attempting to achieve objectives of efficiency and fair-
ness,
3
results in an incoherent system which will ultimately fail to achieve any of these objectives. The
Guidelines have the potential to significantly reconfigure the role of the defendant in the justice process in
such a way as to circumvent the protections inherent in the adversarial system.
The observation that criminal procedure is becoming less adversarial is not new. Academics, lawyers,
and policy makers have been drawing attention to the dilution of adversarial ideals for nearly three
decades (Hodgson, 2010; McEwan, 2011, 2013; Owusu-Bempah, 2013; Royal Commission on
Criminal Justice Report, 1993). It is widely accepted that no pure form of procedural system exists in
England or Wales, or anywhere else in the world (Royal Commission on Criminal Justice Report,
1993). However, the English and Welsh criminal justice system historically had a well-embedded adver-
sarial system which has been increasingly altered over the past thirty years, starting with the undermining
of the right to silence, and culminating in the recent disclosure Guidelines. These recent Guidelines are a
2. ‘Defendant’is used interchangeably with ‘suspect’. As is argued below, the distinction between suspects and defendants should
not be overstated.
3. As laid down in the Overriding Objective, r. 1.1 (Ministry of Justice, 2005, updated 2020).
360 The International Journal of Evidence & Proof 26(4)
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