Corporate Crime Analysis: The Home Office recently published Jonathan Fisher KC's Independent Review of Disclosure Report, 'Disclosure in the Digital Age', following part one of the independent review of Disclosure and Fraud offences. John Binns and April O'Neill of BCL Solicitors LLP consider the key findings and recommendations arising from the report in relation to the disclosure regime in criminal proceedings.
What is the background to the review?
In October 2023, the Home Office appointed Jonathan Fisher KC to undertake an independent review of Disclosure and Fraud offences (the 'Review'). The Review was launched as part of the Conservative government's 2023 Fraud Strategy and was commissioned to assess the efficiency of the disclosure regime and whether the current legislative framework is equipped to address the challenges posed by modern fraud effectively.
The Review has been triggered by the exponential increase in the volume of material involved in criminal cases, and the consequent strain this has placed on the criminal disclosure regime. As the world becomes increasingly digitised, the volume of material in cases has exploded, and this proliferation is most acutely felt in 'sophisticated' crimes such as fraud, which are document and increasingly digital-evidence-heavy. The disclosure regime, as governed by the Criminal Procedure and Investigations Act 1996 (the 'CPIA1996') has struggled to keep up, and as noted in the preliminary findings, the 'non-disclosure of relevant material has led to miscarriages of justice which have scarred the criminal justice system' (see Independent report—Preliminary findings and direction of travel). In addition to the related issues with disclosure, the review has also been prompted by the rise in number of fraud offences, with the government noting in its announcement of the review that fraud now accounts for 40% of all offences in England and Wales (Independent review of disclosure and fraud offences: terms of reference).
The objectives of the review were to consider the operation and effectiveness of the criminal disclosure regime under CPIA 1996, and to assess whether the current framework of fraud legislation is equipped to handle the nature and scale of modern fraud. The review was split into two parts, with the report on part one, 'Disclosure in the Digital Age' (the 'Report'), being published on 20 March 2025. Work has now begun on part two of the Review, which marks the first independent review of fraud legislation in the UK since 1986 (see Terms of reference for part two of the Independent Review of Disclosure and Fraud Offences).
What are the key findings and recommendations of the Report on disclosure?
The Report makes findings in relation to seven areas, namely; digital material, application of the disclosure regime, trial preparation, judiciary and courts, complainants and victims, training and learning and the 'keys to the warehouse' approach. On the basis of these findings, Jonathan Fisher KC makes 45 recommendations.
In respect of digital material, the Report finds that the criminal justice system's current inability to keep pace with the proliferation of digital material 'is at the very heart of the many disclosure mischiefs that follow' (para 251). Given the inevitable continued digitisation of our society, Fisher KC suggests fighting fire with fire (para 15), by using technological developments to find solutions. To this end, he makes a number of recommendations, the most significant of which is the establishment of a new Criminal Justice Digital Disclosure Working Group to consider the utilisation of advanced technology, AI and material management tools in disclosure (para 428).
The Report found that while the disclosure regime under CPIA is fit for purpose, issues arise in its practical application. To this end, Fisher KC makes a number of recommendations aimed at increasing comprehension of CPIA amongst law enforcement officers and improving the consistency of its application, through amendments to the CPIA Code of Practice (the 'Code').
The Report found that particular issues arose in the practical application of the 'relevance test' under CPIA, as wide interpretation by law enforcement of the wording 'some bearing' in the test resulted in the disclosure of huge volumes of material on a pre-cautionary basis (para 254). However, the Report found that concerns around narrowing this test were well-founded as it 'may encourage a dangerous culture where important material is not seized, thereby increasing the risk of miscarriage of justice' (para 447). The solution recommended by Fisher KC is to retain the test in its current form, and instead alleviate the practical burdens of the breadth of the test by making amendments to the Code with respect to scheduling and redactions (para 448).
The Report found that in light of issues with disclosure significantly impeding case progression, there is an appetite for judges and lay magistrates to be more involved in the disclosure process to facilitate case progress (para 26). Accordingly, Fisher KC recommends the introduction of an Intensive Disclosure Regime (the 'IDR') pathway, which is effectively a process of early engagement to be implemented in 'serious, complex, or otherwise voluminous cases' in the Crown Court (para 28). Fisher KC suggests that defendants who choose not to engage in the disclosure process in an IDR case should be penalised (para 28).
For the 'average' Crown Court Case, Fisher recommends that the disclosure process be updated such that the prosecution is obligated to provide a Disclosure Management Document seven days prior to any plea and trial preparation hearing (the 'PTP'). The PTP should then be used to confirm a disclosure strategy and resolve outstanding issues (para 27). Early engagement through these suggested processes is, the Report states, 'vital if delay to trial is to be avoided' (para 29).
What likely changes might arise from the Report, and how might these impact corporate crime lawyers?
The changes that may arise from the Report and any consequent impact for criminal practitioners will naturally depend on the government's engagement with the recommendations. In a statement made upon publication of the Report, the Minister of State for Security stated the government would consider the recommendations and provide a response later this year (See Written questions, answers and statements— UK Parliament).
The recommendations regarding the IDR and early engagement have the potential to have serious implications for criminal practitioners. The Report states that early engagement will assist the prosecution to refine their case and allegations, and from a defence perspective, 'should encourage prompt reflection on the relative strengths and weaknesses of the prosecution and defence case, and whether a plea of not guilty is maintained' (para 29).
Requiring an accused to indicate how they may defend themselves against a case that may not yet be clear to them, with penalties for non-engagement, risks eroding the accused's right to be presumed innocent until proven guilty and jeopardising the possibility of a fair trial. In order to safeguard against this possibility, Fisher KC states that strengthened disclosure obligations must apply to both sides (para 29). From this perspective, it appears that strengthened disclosure obligations may set the responsibility of disclosure more squarely onto criminal practitioners' shoulders.
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