Getting people thinking and talking: An exploration of the Attorney General’s 2020 guidelines on disclosure

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 inquisitorialism. Whilst still promoting the rhetoric of adversarialism, these changes have the potential to reconfigure the role of the suspect and the court in such a way as 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 appreciate their significance. The impact of these newly minted Guidelines is not yet apparent, but this article 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.