The UK Government has announced the first independent review of disclosure and fraud offences since 1986. Chaired by Jonathan Fisher KC, the review will look into the effectiveness of the disclosure regime and consider whether existing offences are sufficient to prosecute modern fraud. Phillippa Ellis and Oliver Wannell report on the announcement below.
In 2021, the Crown Prosecution Service reported that 1,648 cases collapsed over disclosure failings. Around the same time, the Serious Fraud Office’s prosecution of Serco failed, and convictions in the Unaoil prosecution, also brought by the Serious Fraud Office, were overturned, both as a result of significant disclosure failings. The subsequent reports published in 2021 and 2022 made a series of recommendations for how disclosure should be managed going forward.
The question has long been pondered whether the current disclosure process is fit for purpose, particularly in document heavy cases often involving millions of documents. One suggestion has been to give defendants the ‘keys to the warehouse’, providing them with all relevant material gathered as part of an investigation. Whilst this might overcome the issue of the test for disclosure not being properly applied, this is likely to be considered unfair to defence teams who are no better resourced than the prosecution to review and evaluate vast numbers of documents. This is also likely to severely increase defence costs which will either have to be met by an increase in legal aid, or by increasing the cost burden to the defendant, the co-called ‘innocence tax’ where a defendant is not reimbursed for their costs even if they successfully defend the case brought against them.
Any amendment to the current disclosure regime will not be without its challenges, but it can only be hoped that the new proposals see a fairer system for both defendants and victims.
According to the government’s announcement, “the nature and scale of fraud has evolved considerably” and now constitutes “over 40% of all offences in England and Wales”. With online fraud growing rapidly, the challenges of investigating and prosecuting fraud have changed. The review will evaluate the existing fraud offences and penalties contained within the Fraud Act 2006 to ensure that they “meet the challenges of modern fraud, including whether penalties fit the crime”. Consequently, the review will consider simplifying how individuals report associates in criminal fraud networks. It will also consider the scope of existing civil powers (and whether they go far enough to tackle fraud) including exploring a fraud-specific order.
This is the first significant independent review into fraud for almost 40 years when the 1986 Roskill Report saw the creation of the Serious Fraud Office and gave them specific powers to investigate fraud. In consultations since the Fraud Act 2006 came into effect, the consensus has largely been that the Act was having the desired effect but with fraud developing at a much faster pace than the law, law enforcement agencies including the Serious Fraud Office continue to rely on the common law offence of Conspiracy to Defraud to secure convictions. The National Lead Force reported in June 2022 that without the common law offence, there would often be “no suitable alternative to cover conspiracy offences under the Fraud Act 2006”. The House of Lords Select Committee on the Fraud Act 2006 and Digital Fraud concluded in June 2022 that the common law offence is “invaluable and should simply be left alone” but that it may be beneficial to explore how the “wider fraud framework could be improved”.
The review into fraud offences comes as part of the Government’s wider Fraud Strategy, launched by the Home Secretary in May 2023. According to the Fraud Strategy, although fraud is now by far the most common crime it currently receives less than 1% of police resource. The establishment of an independent review, chaired by a senior lawyer, shows a welcomed focus by the Government on tackling fraud.
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