The Guinness Decision — Pure Genius?: The viability of the rules concerning the disclosure of ‘unused material’

It is argued that current rules and case law on the disclosure of ‘unused material’ raise serious issues relating to confidentiality and have led to logistic problems for the police and prosecution. This is especially true in complex investigations, such as those for fraud. Not only is disquiet about full disclosure justified in the context of these issues, but the submission of ‘unused material’ is also problematic, given the adversarial system of justice in this country. While the Royal Commission on Criminal Justice has addressed these issues partially, the system of disclosure proposed largely maintains the adversarial system and thus will still be subject to the difficulties already encountered. Despite the proposed institution of defence disclosure in certain circumstances, it is argued that the codes of practice for disclosure need to address the logistical problems and confidentiality. If they do not, the difficulties of complying will remain.