The leading barrister who is currently conducting an independent review of the challenges of disclosure and fraud offences said it is evident “that a perfect solution does not exist”.
Red Lion Chambers Jonathan Fisher KC has been tasked with conducting a review to consider the challenges of investigating and prosecuting fraud cases and the operation of the disclosure regime in a digital age.
On Wednesday, Fisher KC published his preliminary findings, where he detailed that currently, the Serious Fraud Office (SFO) average case has around 5 million documents, and the largest case on its system has 48 million documents (6.5TB or 6,500GB).
“If printed, the average volume of material in an SFO case would stack considerably higher than the Shard,” Fisher KC wrote.
Disclosure issues have always been the SFO’s Achilles’ heel, resulting in long-winded investigations and problem-riddled trials. The SFO’s director Nick Ephgrave welcomed Fisher KC’s findings, as he noted he supports a “disclosure regime that works for the digital age and ultimately speeds up cases outcomes”.
Since the start of his review, Fisher KC held over 50 meetings with a wide range of interested parties across the criminal justice system.
He looks at the digital age and notes that the proliferation of digital material and progressively complex offences means disclosure is an increasingly time and resource-intensive process for all parties.
The emerging trends he details included the Criminal Procedure and Investigations Act 1996 (CIPA).
The barrister noted that he does not currently see a compelling case to reform the law. But he “would like to consider where there may be scope for the legislation to be modernised to simplify some of its provisions to support greater consistency of application and to enable better use of technology.”
He pointed out that there is a need for better training and resources for disclosure issues across all parts of the criminal justice system, which he will be detailing in his full report.
He addresses the early engagement between the prosecution and defence that post-charge has the potential to produce enormous benefits for case progression.
One of his considerations is imposing new sanctions in scenarios on the prosecution and defendants who do not adhere to the agreed disclosure timetable or fail to engage.
Fisher KC pointed out that the process of disclosure is a “critically important part of criminal legal proceedings” and highlighted that there continue to be instances of miscarriages of justice. With that, he pointed out that whether disclosure issues may have contributed to miscarriages of justice in the prosecution of the sub-post office was raised to him.
The senior barrister’s recommendations and final report will be sent to the Home Secretary in the Summer.