Jonathan Fisher KC has begun part two of his Independent Review of Disclosure and Fraud Offences, for the Home Office. Part one, Disclosure in the digital age, covers how ‘information gathered during an investigation is passed from the prosecution to the defence’. Mark Rowe pulls out what this may mean for investigations.
Fisher found ‘significant confusion over disclosure obligations for private investigators and prosecutors’. Fisher acknowledges that the code of practice to govern the Criminal Procedure and Investigations Act 1996 is ‘a police-centric document’. He asks if the 1996 Act should apply to anyone undertaking a criminal investigation. He points out that if the Home Secretary were to place duties on non-police investigators, that might take him beyond what the 1996 Act allows. Guidance notes could be written with a non-police investigator in mind, as done with the Police and Criminal Evidence Act (PACE), covering interviews of suspects.
How to provide the right material, not too much or little, so as not to fall foul of some law, such as data protection? Fisher points out that inexperienced police officers may take ‘a risk-averse approach’, picking what looks like the best material, and not going down ‘all reasonable lines of inquiry’ which might bring trouble. In his view, it’s ‘unreasonable and highly impracticable’ to expect an investigator ‘to manually review each item in search of possibly relevant’ material that may be disclosable, without wasting everyone’s time. Fisher wants it made clear in the code of practice covering disclosure, that the disclosure duty can be discharged with the aid of tech. As he stresses, there lie pitfalls; humans still have to stay accountable.
Schedule
Another bugbear for an investigation is compiling a schedule, of unused material, ‘which is often fraught with difficulties given the volume of items they must sift through’. Police complain of ‘excessive work’; that can lead to sub-standard work, which can lead to delays in court cases, only adding to the well-publicised backlogs in crown courts especially. According to ‘experts’, ‘emerging technology will soon provide a viable alternative to the burdensome and resource draining method of manually writing traditional schedules’, Fisher writes.
A hitch not for the review to address is that much of the frauds done on UK people – and as the authorities have (belatedly) admitted, fraud is the number one crime by volume in the country – are done from abroad. How to collar those fraudsters?!
Volume of material
Leaving aside that anyone arrested, charged and taken to court for fraud is the tip of the tip of an iceberg of crimes, Fisher sets out that the volume of unused material generated in a criminal investigation has grown, ‘exponentially’. The review notes that ‘the largest investigation case on the Serious Fraud Office (SFO) system has 48 million documents (6.5 terabytes of data). With this volume of digital material, it is inconceivable that the totality of unused material generated in the investigation can be accurately reviewed and scheduled by investigating officers manually’. And the data will only grow further, due to artificial intelligence; body cameras; digital devices in every home. That implies, something the review states, that the only cases the criminal justice system cares to take on, after triaging, are the most important ones (by whatever social or economic criteria), ‘serious, complex or otherwise voluminous’ cases. With lots of data. How to give the accused a fair trial, without overlooking a vital piece of evidence, whether to convict or find innocent the accused? Yet, given ‘the rising tide of digital material’ in cases of organised crime and sex offences also, how to keep justice running at all, ‘case progression’ in the jargon? Just as tech is causing the problem, so Fisher proposes to fight fire with fire; finding a solution (though there’s no ‘silver bullet’) that ‘maximises the use of technology’. Although later on Fisher raises the Horizon Post Office scandal on the need for an ‘honest approach’ to use of tech.
Yet tech is not all. Fisher found a ‘poor culture’ around disclosure; he queried competency in managing material. What for instance about the redaction of personal data from unused material? Given data protection law, Fisher suggests that ‘significantly less pre-charge redaction could be done by investigators’.
Falls short
The review argues that the disclosure regime ‘regime falls short of the principles of justice, clarity, transparency, efficiency and proportionality’. The regime falls under the Criminal Procedure and Investigations Act 1996. Like that ageing law (though Fisher suggests it’s sound of itself), the authorities aren’t keeping up with tech generally, though the software tools are around. He found not all law enforcement agencies and police forces ‘have access to secure platforms for sharing digital material, which leads to investigators inconveniently travelling the country to deliver material in hard copy or USB form’. For lack of digital forensics, some police face a ‘delay in initially unlocking and extracting data from seized digital devices’, at the outset of an investigation. The review described the procuring of technology across law enforcement as ‘disjointed’. Fisher recommends that nationally the Home Office and police make protocols around safe, ‘ethical use of AI’, including in disclosure.
Training
Around training, Fisher suggests a bronze-silver-gold model, bronze being basic training in disclosure for all starters in the police, and silver for the everyday investigator, which would require law enforcement agencies to agree a national learning standard.
Redacting
On redacting sensitive and personal information, Fisher says it’s ‘draining far too much time and resource’ and inexperienced police officers are redacting too much, which is holding up cases. Yet police are expected to do full redaction even in cases ultimately deemed ‘no further action’, ‘which in 2023 accounted for over 21 per cent of all cases’ sent to the Crown Prosecution Service (CPS). On this, Fisher recommends that the Information Commissioner’s Office and police at a national level issue guidance. He suggests a ‘data bubble’ between police, and the CPS, ‘so that data and information can be shared unredacted for the purposes of a charging decision’.
For the full document, visit https://www.gov.uk/government/publications/independent-review-of-disclosure-and-fraud-offences.
Photo by Mark Rowe: Hereford Crown Court.
