Criminal Disclosure in the Digital Age: Independent Review of Disclosure and Fraud Offences

The Home Office have published the findings of an independent review of Disclosure and Fraud Offences in a report by Jonathan Fisher KC of Red Lion Chambers, titled Disclosure in the Digital Age (the "Report"). The dominant purpose of the Report was to provide for a comprehensive review of the disclosure regime in criminal cases in the context of digital disclosure. 

The Report ultimately sets out 45 “ambitious yet pragmatic” recommendations. In this article, we summarise the context of the Report and highlight some of the recommendations. Whilst the Report is focussed on criminal proceedings, it is of interest to a wider audience, for example: 1) discussion about potential use of AI and the relevant factors to consider; and 2) for parallels with management of large volumes of data in commercial litigation disclosure exercises.

Context

The disclosure process is prefaced as ‘… a critically important part of criminal proceedings. It guards against injustice by ensuring that the defence is made aware of material that undermines the prosecution case or assists the defence case’. 

Prior to the Criminal Procedure and Investigations Act 1996 (CPIA), rules regarding the disclosure of unused material were governed by the common law, which required prosecutors to pass information to a defendant where this material assisted their case. The introduction of the CPIA, then viewed as state-of-the-art legislation, intended to reduce the burden of disclosure, provided a ‘sound foundation for criminal trials to proceed on a sure footing in the new millennium’. The rules contained in the CPIA were further supplemented through the Criminal Justice Act 2003, which, for instance, placed a ‘continuous duty’ to disclose evidence on the prosecution. 

However, the rapid technological advancement experienced in the intervening period has changed working practices relating to disclosure, resulting in several issues, including but not limited to:

• The need to review ever-increasing amounts of material, namely digital data, prior to disclosure, which can create backlogs for law enforcement, prosecutors, defendants and the courts alike, thereby delaying access to justice. 
• Abuse of the disclosure system by criminal organisations, for instance through the deliberate concealment of data.
• Inconsistencies in the application of disclosure rules due to individual subjectivity. Fisher KC notes that this is particularly pertinent in the context of the test under CPIA section 3, which requires prosecutors to disclose information that ‘… might reasonably be considered capable of undermining the case for the prosecution’. 
• The need for better training and awareness among law enforcement and legal professionals regarding disclosure obligations and their underlying importance.
• Insufficient resources across all levels to properly manage disclosure.

The Recommendations

The Report identifies 45 recommendations. The Report notes that underlying all of these were five key principles – justice, clarity, transparency, efficiency and proportionality.

Below are some of the key practical highlights.

Technological Solutions, AI, working groups and protocols

In order to utilise new technology as efficiently as possible, the Report advocates for the creation of a Criminal Justice Digital Disclosure Working Group, comprising of law enforcement, prosecution, defence and judicial representatives, to oversee the consideration of existing advanced technological tools in managing disclosure, along with their associated factors, including but not limited to accuracy metrics, security, the level of training required to operate such software, and reviewing the use of such tools. 

It also recommends the creation of a Cross-Agency AI Disclosure Protocol, to provide clear guidance on the use of advanced technologies, thereby ensuring consistency in the uptake and application of, for instance, AI tools across law enforcement agencies. Finally, in tandem with the above, the Report recommends that law enforcement should consider the benefits of a central technology procurement unit, to further reduce inconsistency stemming from disparities in the technology utilised. (recommendations 1 and 2)

Further, Fisher KC explains that in his view it is ‘unreasonable and highly impracticable, in this digital age, to expect investigators and disclosure officers to manually review each item in search of possibly relevant and disclosable material, within a reasonable timeframe and in such a manner that does not waste the finite resources of all parties.’ Case law and some court procedures reflect that technology is already being used to assist with review. In order to bring the legislative framework in line with current practices, the Report recommends changes to codes or practice that the disclosure duty can be discharged with the aid of technology. (recommendation 7)

When considering the technological recommendations, Fisher KC recognised and considered various issues for AI, including on training, accountability, technology procurement, appropriate use at different stages of the disclosure regime, data security, and cost.

Consolidating Guidance and the Legislative Framework

Whilst the Report maintains that the current CPIA framework for the disclosure of unused materials remains adequate, it nonetheless suggests that it should be updated to reflect the best practices for disclosure in the digital age. Along with this, to assist with the issues regarding consistency in application and approach, the Report also recommends that key documents governing disclosure should be consolidated into a single guidance document. A central GOV.UK depository webpage should be created with links to the CPIA, the Code of Practice, the Criminal Procedure Rules along with any Consolidated Guidance, to ensure that these are easily accessible. (recommendations 38 and 39)

Streamlining Court Processes

Having decided against a radical revision of the CPIA, the Report recognises that the judicial process can nonetheless be modernised. This includes an ‘Intensive Disclosure regime’ for the most serious, complex, or otherwise difficult cases and updating when disclosure-related procedural documents are to be provided to parties and the court.  (recommendations 22, 23 and 30-36)  

Conclusion

The Report reflects that there are several issues ongoing regarding disclosure in the criminal courts and, similarly, multiple approaches will be required to address them.

If you would like to discuss how current or future regulations impact what you do with AI, please contact Tom Whittaker.

This article was drafted by Tom Whittaker, Zac Bourne and Luc Edwards