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Our regulatory team take a look at preliminary findings from the Independent Review of Disclosure and Fraud Offences

Jonathan Fisher KC has the somewhat unenviable task of undertaking an Independent Review of Disclosure and Fraud Offences, and making proposals for improvement and potentially, reform. It is no secret that disclosure issues have been the downfall of a number of large, high-profile cases recently, however disclosure can be as much of a headache in the Magistrates’ Court. It is essential that disclosure is handled correctly and due to the exponential rise in digital material it has become increasingly challenging to get right.

 

On 24 April 2024, Mr Fisher published his Preliminary findings and direction of travel report. Early on in the report, he admits that ‘given the considerable experience of former [disclosure scheme] Reviewers, it is evident that a perfect solution does not exist’.


Is CPIA the problem?

 Having canvassed views, Mr Fisher says that there is a consensus that the disclosure legislation is sound, however he ruminates that maybe the legislation can be modernised to simplify it, provide greater consistency of application, and enable better use of technology. Given the prominence of digital material in modern-day cases, technology is inevitably going to play a significant part in reviewing material and as discussed at length in R v R & Others [2016] 1 WLR 1872, where it is practically impossible to review material in its entirety, it is permissible to use search tools (provided that the methodology of sampling or searching is disclosed). It is unsurprising that technology was a big focus of the SFO five-year strategy, published last week (and discussed in our blog here). 

 

Mr Fisher is also giving consideration to ‘whether there is a case for simplifying the procedures relating to disclosure by consolidating the Code of Practice, the Attorney-General’s Guidelines and various judicial protocols and practice directions into a single document.’

 

No doubt in the light of the Post Office scandal, the application of the CPIA tests by private prosecutors is also being reviewed, and whether those obligations require ‘clarification’ in the case of private prosecutions. In a public prosecution, the complainant and prosecutor (and sometimes also investigator) are distinct from one another; in a private prosecution that distinction is not so clear. It is logical therefore to consider the practical implications of this blurring of roles on the disclosure exercises undertaken by private prosecutors.

 

Early engagement is key 

 Early engagement between the prosecution and defence, post charge, can be hugely beneficial for case progression, and Mr Fisher writes that far greater attention should be given to disclosure at an earlier stage. That may be through the utilisation of existing hearings, or by adding specific disclosure hearings into the timetable.  This seems sensible; many cases already feature the provision of a disclosure management document, and so addressing this in a hearing where objections and comments can be aired in real time is bound to progress matters more expeditiously.

 

Mr Fisher is not, however, suggesting that it’s a case of ‘the earlier the better’. At present, the CPS requires a comprehensive schedule of unused material to be prepared before a charging decision is made. Mr Fisher questions whether the preparation of a full schedule prior to a charging decision is necessary in all cases; for example, in the case of an almost certain guilty plea. Perhaps what is needed is not necessarily more focus on disclosure, but focus in the right areas, at the right time. 

 

A cultural problem

 Those consulted by Mr Fisher referred to a ‘poor culture’ around disclosure, with ‘insufficient value placed upon this work in different parts of the system’. Issues have been identified in particular around the training of investigating officers, as well as among lay magistrates required to deal with disclosure issues. Mr Fisher acknowledges that disclosure is a fundamental and essential element of the criminal justice system and thus weaknesses within disclosure processes stand to infect the integrity of the entire criminal justice system.

 

One suggestion for attributing disclosure with the importance it deserves is the establishment of a formal disclosure role to provide advice on best practice in all disclosure matters and uphold standards with regard to the application of the disclosure process by all parties. Specific disclosure roles already exist in many cases (police disclosure officer, disclosure review officer for the prosecution or even disclosure counsel), however it appears that Mr Fisher may be considering an impartial, specialist third party to oversee the disclosure process alone.

 

Sanctions for failure to comply

 Mr Fisher has heard of disclosure failings on all sides in the Magistrates' Court, from investigators to prosecutors to the defence. He is considering a bespoke solution for disclosure in the Magistrates’ Court, which certainly seems logical given the very different timeline operating there, versus the Crown Court.

 

Whether there are failings due to incompetence or intentional non-adherence, Mr Fisher is considering new sanctions in scenarios where the disclosure timetable is not met or parties fail to engage at a disclosure hearing. The SFO has, as recently as this week, admitted during the ENRC litigation that it ‘inappropriately’ wiped the mobile phone of ex-director Lisa Osofsky in what has been described as a ‘flagrant breach’ of disclosure obligations. Sanctions for non-compliance, alongside active support from the judiciary, does sound promising – however Mr Fisher might need to focus his cultural change on the judiciary as much as the investigation stage. He has identified, correctly, that the ‘role of the judiciary is central to making any system work’.

 

Tweaks, not overhaul

 Mr Fisher continues his review, with the fraud element not due to be published until early 2025.  Part 1 of Mr Fisher’s preliminary findings points to cultural shifts and small tweaks, rather than an overhaul of the entire disclosure system. With the speed at which the quantity and complexity of disclosure is increasing, this simply may not be enough to restore integrity to a system beset with problems.


by Rachel Quickenden, Senior Consultant, Constantine Law

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