A video recording (and it follows a tape recording) must be disclosed as part of advance information.

In a decision of considerable importance, firmly recognising the adversarial system, the court in R v Calderdale MC, ex parte Donahue and Cutler (2001) CLR 140 emphasised that it is not part of the job of a defence lawyer merely to seek instructions from their client as to whether or not they committed the offence.

The first job of the solicitor is to ascertain the evidence against their client and to give advice as to the strength of that evidence.

There can be no loss of sentencing discount under section 152 of the Powers of Criminal Courts (Sentencing) Act 2000 until that has occurred.In interpreting the Magistrates' Courts (Advanced Information) Rules 1985, the court held that a video was a document within the meaning of rule 4(3) and if referred to in the summary of evidence or evidence itself must therefore be made available to the defence.

Furthermore, the court is required by rule 7 to adjourn the proceedings when full disclosure has not been made under rule 4 unless there would be no substantial prejudice to the defence.

The court held that there would be such prejudice unless the defence could fully assess the weight of the video evidence.

The client was entitled to make an informed choice as to plea and be aware of the nature of the case against him.

This decision has wide ramifications.

Some prosecutors insist on a not guilty plea before disclosing evidence in accordance with paragraph 43 of the Attorney-General's guidelines on disclosure.

If this is the only way to obtain informed advice, no discount can be lost.Videos play an increasingly important part in the proof or disproof of many prosecution allegations.

Video cameras are now in wide use in both public and private situations and in R v Feltham MC; R (on application of Ebrahim) Mouat v DPP [2001] All ER 831 the court considered the circumstances in which the failure by the Crown to secure video evidence or to preserve it would amount to an abuse of the process of the court resulting in a stay of the proceedings.

The court held that an application for stay could only be considered against the nature and extent of the Crown's duty in each particular case having regard to the code under the Criminal Procedure and Investigations Act and the Attorney-General's guidelines on disclosure.

The effect is that if the Crown is not put on notice of the relevance of a possible video, there is unlikely to be any obligation whatsoever to preserve it.

This will be of particular importance when solicitors advise early in investigations, and particularly at the police station.

The court held that an application to stay should only be entertained in exceptional circumstances on the basis that no fair trial would be possible or that it was not possible to hold a fair trial.

It emphasised that the trial process could itself deal with many cases (by trial judges for instance giving suitable warnings or excluding some evidence) and the burden would be on the defence to show on the balance of probabilities that owing to the lack of the video evidence they would suffer serious prejudice to the extent that no fair trial was possible.

However, the court balanced this by indicating that it would not be fair to hold a trial if the Crown had acted in bad faith or with serious fault.However, a video should never be taken of a defendant in court surroundings as this not only breached the defendant's rights under article 8 of the European Convention on Human Rights, but a person attending court should not be concerned that the occasion might be used for activities of this nature (R v Loveridge (2001) The Times, 3 May).