Under this regime, once a case is designated ‘intensive’, the prosecution would provide the court with an updated disclosure management document including full details of any search technology they plan to use. The defence would identify trial issues, and the judge would hold a disclosure management hearing about four weeks later.
The report, 'Disclosure in the digital age', published by the Home Office last week, also recommends standardised training for disclosure officers, greater use of artificial intelligence (AI) and early-stage communication between investigators and prosecutors to identify a disclosure strategy.
Fisher KC considers the approach used in some US states where the defence is given full (albeit controlled) access to prosecution material, but rejects this as expensive and likely to increase delays.
The explosion in digital material is overwhelming criminal justice resources—Fisher KC cites a recent serious fraud case that generated 8.5 million documents plus a further 2.5 million defence documents. The largest Serious Fraud Office (SFO) case to date has 48 million documents.
Fisher KC, of Red Lion Chambers, writes: ‘If printed, the volume of material in an average SFO case would stack considerably higher than the Shard.’
The proliferation of data also affects less complex cases. The silk reports it took an average of 60 days to bring a case to court in 2014 and double that time in 2023.
While the relevant legislation—the Criminal Procedure and Investigation Act 1996—is ‘broadly sound’, problems do arise in its practical application. Therefore, Fisher KC recommends creating additional guidance and updating the Act to reflect recent caselaw.
Niall Hearty, partner at Rahman Ravelli, says: ‘Particularly notable is Fisher’s rejection of the keys to the warehouse idea—that suspects should have all the evidence.
‘While this is understandable, it may come as a disappointment to some defence lawyers. Equally notable is his recommendation that language should be inserted into the law that allows disclosure officers to use AI. This is perhaps the clearest acknowledgement of the challenges the system currently faces when it comes to disclosure.’
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