Transparency data

Serious Fraud Office investigators and prosecutors: 28 November 2023

Published 30 April 2024

These are the personal experiences and views of practitioners and are therefore not necessarily reflected in the organisational wide assessment of disclosure

Introduction 

The Chair of the Review, Jonathan Fisher KC, summarised the terms of reference and scope of the Review. He noted the importance of hearing first hand, from investigators, prosecutors, and practitioners, who uphold the disclosure regime.  

Discussion 

Participants were asked to reflect on the Criminal Procedure and Investigations Act 1996 (CPIA), specifically part 1 on disclosure. The following observations were made.  

CPIA 

1. Participants felt that principles underpinning the CPIA remain valid in their intention to provide safeguards protecting the right to fair trial and reduce the risk of miscarriages of justice. In practice, however, significant expense, time and resource is required to deliver on legislative obligations. Furthermore, in cases with large volumes of digital material, the requirements of the CPIA sometimes delay the delivery of justice for all parties.

Attorney General’s Guidelines 

2. [To note: this conversation took place before the most recent revision of the Attorney General’s Guidelines published on 29th of February 2024.] The Disclosure Management Document was seen as a helpful tool for investigators and prosecutors to set out their approach to disclosure. It was noted that the current scheduling obligations, manifested as the requirement to write detailed descriptions of thousands of files, are very burdensome.  Many participants had experienced litigation over schedules which has moved cases away from consideration of the real issues. Participants felt that further clarity from Courts on blocklisting would be helpful.

Digital Material 

3. Participants reflected that their cases now contain a staggering volume of digital material. Despite using techniques such as on-site device triage and considering carefully whether certain devices need to be seized, cases can still often run into millions of files.

4. Participants felt that there is a notable trend signalling a more digital future, whereby individuals will increasingly store greater amounts of information online or in a digital form. Correspondingly, it is expected that the volume of material on each digital device will be larger. Data relating to cryptocurrency is also presenting new challenges for investigators.

Technology 

5. It was noted that technological solutions are already being utilised to sift large volumes of digital material and strip out extraneous files. Furthermore, software is being used to search, tag and group material.

6. There was optimism that ‘technology assisted review’ could further speed up the process through improvements to current software options and the development of artificial intelligence (AI) tools.  However, there was an acceptance that advanced reliable AI tools still need to be developed and a recognition that successful implementation of new systems would require technically trained investigators and engagement from defence practitioners and the judiciary so that these tools can be properly deployed in criminal cases. It was therefore concluded that advanced AI software tools are unlikely to provide an imminent solution.

Investigation Scope

7. Participants were asked about their views on the merits of narrowing the scope of an investigation to limit the volume of material that needs to be reviewed and scheduled. They responded that having a narrow, focused investigation scope is already something the SFO does. However, in certain types of cases, the prosecution relies on gathering significant material to compare trends and possible criminality over a number of years. This would present a barrier to narrowing the scope.  Furthermore, it was noted that some third-party material can be transient and therefore needs to be seized promptly before the risk of deletion or loss is realised.

8. There were also concerns that if investigators are not thorough in their approach to seizing material, this increases the likelihood of the defence putting forward arguments in relation to an abuse of process by, criticising the investigators for not pursuing all reasonable lines of enquiry (a requirement under the CPIA). It was also noted that while the SFO can use Criminal Justice Act 1987 s.2 powers, to request material, the suspect or defendant can hand over material in a range of formats ranging from images of servers to email meta-data.

Resources and Training

9. Participants talked about the challenges of quality assurance as part of the document review process in cases with millions of files. Significant resources are required to maintain high standards over the full lifespan of a multi-year case.

Defence engagement and section 8 requests 

10. It was agreed that early engagement with the defence is critical, especially when deciding search terms, which if provided late in the process of investigation, can delay a trial by months or years. In such cases, abuse of process arguments relating to disclosure are expected to be explored by the defence. This often consumes more time and resource than any exploration relating to the key issues of a case.