Independent review on disclosure report – What it means for defendants

The much-awaited Independent Review on Disclosure report by Jonathan Fisher KC (the “Report”) has recently been published. Entitled ‘Disclosure in the Digital Age’, it explores the challenges of modern-day disclosure within particularly serious and complex criminal cases, including economic crime, and makes 45 recommendations for reform.

We consider the impact from a defence perspective and what it means for you.

What is Disclosure, and why is it important?

Disclosure is the process whereby information collated during the course of a criminal investigation is provided to the defence by the prosecution. This allows the defence to argue the most compelling version of their case and respond to the allegations against them effectively.

For this reason, it forms a cornerstone of the criminal justice system and a core part of ensuring a fair trial process. Should errors in the disclosure process occur, as they have done in recent high-profile cases, it can result in prosecutions collapsing, or more importantly, miscarriages of justice.

The current system

On 1 April 1997, the Criminal Procedure and Investigations Act 1996 (the “CPIA”) was brought into force, setting out, amongst other criminal procedural regulations, a new required process for criminal disclosure. At the time, the new rules were considered state of the art. Technology, however, and the myriad of new and voluminous ways in which digital data is created, stored, and utilised, has moved on considerably in the subsequent 28 years.

For example, the Report details that the largest current Serious Fraud Office (“SFO”) investigation has 48 million documents, amounting to 6.5 terabytes of data. This is a huge amount of data being stored, and in large cases such as these, the margin for error is increased, which means that there is more room for miscarriages of justice to creep in.

Following recent high-profile disclosure challenges and failures in serious fraud cases, many concerned parties have called for an overhaul to the disclosure rules, at least for large scale economic crime cases. This is the context in which the Report has been produced, and its recommendations compiled.

Our thoughts

Whilst this report has not fully endorsed a ‘keys to the warehouse’ approach, aspects of this approach have been shaped into these recommendations, including placing additional responsibilities on the defendant (e.g. undertaking larger document review exercises) and emphasis on their meaningful engagement within an investigation.

Ultimately, this is likely to lead to less (successful) accusations of miscarriage of justice against the Crown, and essentially shares the responsibility of disclosure with defendants. This will alleviate some of the pressures on the Crown in large cases, but will likely significantly increase the legal costs for a privately paying defendant.

Report recommendations

The Report provides some key overarching recommendations for reform. These are:

• to modernise existing legislation and reduce administrative burdens by utilising advanced technology.
• to improve criminal court processes with an entirely new Intensive Disclosure Regime court pathway, designed for the most complex criminal cases.
• to enhance disclosure quality by designing a new national learning standard across all law enforcement agencies.

Key Recommendations

Of the 45 recommendations, we consider the key ones to be aware of are:

Technology

Technology is to be utilised more effectively, which will include:

• • A Criminal Justice Digital Disclosure Working Group, comprising law enforcement, prosecution, defence and judicial representatives, created to consider existing advanced technological tools and their usage.
  • A Cross-Agency Artificial Intelligence (“AI”) protocol, to investigate AI’s ethical and appropriate use in the review, analysis and disclosure of investigative material.
  • Central technology procurement by law enforcement.
• The defence will still be able to object to how the disclosure of their case is being dealt with, but it will be important to raise this early so problems can be rectified.

Changes to the identification of disclosable materials

• The duty for the prosecution to manually review every data item is recommended to be removed, and instead, technology can be used to identify material which may be relevant to an investigation. This will increase the burden on the defence to conduct larger review exercises and may increase the need for legal support.

Learning and Training

• Law enforcement will be required to increase the level of their learning and training regarding their disclosure obligations.
• A three-tier disclosure training programme should be brought in, providing differing levels of training at bronze, silver and gold tiers. This will increase law enforcements awareness and understanding of their obligations within investigations and hopefully minimise miscarriages of justice.

Quality Assurance

• Quality assurance within the disclosure process is to be improved. This report is the first review of the disclosure process in over a decade, and has identified that quality should be brought up to standard. This will include reports following cases, data from law enforcement, research into different courts’ processes, and comments from the judicial college to inform and improve quality.

Updated and Accessible Guidance

• Consolidated guidance will be made available and accessible, including central web pages directing users to guidance and directions. This will increase transparency in the process and make it easier for defendants to understand their role and obligations, as well as those of the prosecution and the courts.

Case Management Changes

• Intensive Disclosure Regime is to be put in place, which will include the need for a disclosure management hearing if implemented. This means that in larger cases, a court hearing will be scheduled to discuss and decide how disclosure will be managed. In this hearing, the court will be able to make several decisions, such as imposing certain time limits for the parties to complete their disclosure review, or decide that certain documents may not be reviewed by all parties.
• Investigators and prosecutors are to meet regularly to discuss the ongoing disclosure strategy throughout the investigation.
• If the defence intends to plead guilty, there will be no duty for the prosecution to produce a full schedule (list) of unused material (documents not used as evidence) and provide this to the defence. This is an obligation the prosecution currently has, regardless.
• Where there is only one defendant, there will be no obligation for the prosecution to provide them with a list of documents that they are returning to them (that had previously been in their possession).
• A ‘Disclosure Management Document’ will be produced by the prosecution. This will set out the background to the case, and the disclosure regime or process recommended. It is hoped that the implementation of this will increase efficiency. The defence will be required to meaningfully engage with this document by commenting or offering suggestions.
• A ‘Response to Disclosure Management Document’ will then be produced by the defence. This will set out the defence’s comments to the Disclosure Management Document received from the prosecution (above).
• The Criminal Procedure Rules should be amended to reflect new factors to be considered when considering any late applications for the disclosure of new documents (pursuant to section 8 of the CPIA). These new factors should consider defence engagement, reasons for the delay, and any potential delay/disruption to trial.
• Judicial powers to be increased – judges will have the power to implement the intensive disclosure regime in cases they deem fit.

What does this mean for you?

The recommendations represent a wider shift within the criminal justice system to embrace the growing technological advances in the UK, rather than crumbling under the weight of them. Further responsibilities will be placed on both the prosecution and defence if the recommendations are implemented.

For defendants:

• There will be increased responsibilities on the defence in terms of disclosure review, and the requirement upon defendants to meaningfully engage with the investigation process. These key changes will likely impact the outcome of the investigation, subsequent hearings and trials.
• Section 8 applications for further disclosure should be carefully considered and submitted as early as possible in the process, as late applications are likely to be treated with increased cynicism.
• Increased transparency from the prosecution will also mean that defendants are in a better position to scrutinise the prosecution’s investigation and ensure that disclosure is being carried out effectively and lawfully.

If you would like to read the full report, you can find it here.

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Anna McIntyre

Senior Associate

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