The Fraud Disclosure Review: An Explainer

This article seeks to provide a summary of the work done by Jonathan Fisher KC and his team in the Fraud Disclosure Review, why it was thought necessary and what are the next steps moving forward in light of the publishing of his preliminary findings.

It hardly needs saying that failings in disclosure have been responsible for a number of miscarriages of justice in terms of defendants being wrongly convicted. Disclosure failings have also led to abandonment of significant prosecutions without the resolution of the case by a jury.

​Chronology

A brief timeline as to the progress of this work is as follows:

  • May 2023 – the last government launched their Fraud Strategy
  • 12th October 2023 – the terms of reference were published.
  • 26th February 2024 – an update was provided by Jonathan Fisher KC as to progress being made.
  • 24th April 2024 – the preliminary findings were published with fuller recommendations expected at some point this year.

​Why

Disclosure in criminal fraud cases has been the subject of much discussion and debate over the years especially in the light of large cases failing because of disclosure problems encountered by the prosecuting authority.

There has been no review of disclosure within the context of fraud since 1986 when Fraud prosecutions considered in more general terms in the Roskill Review. There has been a significant evolution in the way in which the offence of fraud can be committed due to the rapid advancement of technology. With this creates an unwieldy amount of material to which the relevant considerations and disclosure test must be applied. The approach and methodology applied to disclosure has had to develop accordingly to ensure compliance with the relevant legislation and a fair trial. The advent of artificial intelligence and the prospect of its use in conducting disclosure exercises also needs to be considered with care.

In the preliminary findings, Jonathan Fisher KC references a number of cases (not limited to fraud) where failings in the disclosure process have led to significant miscarriages of justice: Malkinson[1] and appeals arising out of the Horizon scandal to name two.

Outcomes Hoped For

In carrying out his review Jonathan Fisher hopes to improve the current practices in respect of disclosure, how successfully fair trials for defendants and victims are being delivered and how effective the current system is at guarding against those types of miscarriages of justice he opens with.

The other primary aim of the review is to explore ways in which the system can be modernised.

Initial Findings

The preliminary findings of the review are set out in the form of ‘Emerging Themes’ of which there are eight:

  1. Legislative Framework.
  2. CPIA Tests.
  3. Technology and Artificial Intelligence (AI).
  4. Early Engagement.
  5. The Magistrates’ Court.
  6. Training and Resources.
  7. CPS Engagement.
  8. Miscellaneous themes.
1. Legislative Framework

The review considers whether or not the Criminal Procedure and Investigations Act 1996 (‘CPIA’) remains fit for purpose or whether update is required. The preliminary findings suggest both propositions are true. The structure and form of the current legislative framework is considered appropriate and effective in meeting those primary concerns the review has in mind in conducting their review. The observations relate to a modernisation and simplification of the content to ensure a more uniform and consistent approach taken and to ensure the power of modern technology can be properly exploited as part of the disclosure process.

The review also considers what is termed the ‘keys to the warehouse’ approach and whether and when it might be appropriate. This would involve handing over in bulk all or large parts of the unused material held by the prosecution. Arguments for this approach are that often, especially with fraud cases it might be said, it would simply be providing back to the defence material which came from the defendant in any event. The review reflects on the possible issues surrounding sensitive information and matters of Legal professional privilege (‘LPP’) on the other hand.

2. CPIA Test

The review considers the suitability of the test to be applied when making disclosure decisions: “any prosecution material … which might reasonably be considered capable of undermining the case for the prosecution against the accused or assisting the case for the accused”. They also consider the Code of Practice’s definition of “relevant material”, the main concern noted being the degree of subjectivity the definition allows and therefore inconsistency it can cause.

3. Technology and Artificial Intelligence (AI)

The review will consider what use AI can be put to to streamline the disclosure process especially in respect of the scheduling requirements. Further, there is to be consideration if a more centralised system could offer benefits as opposed to each force using their own system.

4. Early Engagement

The review will consider the possible benefits of pre- and post-charge early engagement between parties and whether there needs to be any procedural changes to underpin that. Consideration is being given as to the current use of defence statements in the disclosure process and whether or not existing hearings (e.g. PTPH) can be used to progress disclosure.

5. The Magistrates’ Court

The challenges of the shorter timeframes and general non-compliance with CPIA obligations in the magistrates’ court are explored and thought given to what solutions there could be both practical and procedural.

6. Training and Resources

The review found a wholesale improvement in training in respect of disclosure as well as improving the general resourcing of this area.

7. CPS Engagement

Specifically in respect of the issue of CPS Engagement, the review will consider whether a schedule is required to be prepared in every case, pre-charge, or whether in cases where the evidence is overwhelming, or admissions are made, the outcome of the Defendant’s plea might be awaited.

8. Miscellaneous

Four miscellaneous matters have also arisen that stand alone:

  1. Establishing a formal role of a body who can advise on matters of disclosure and have oversight.
  2. Are statutory changes required to ensure private prosecutor are subject to the same disclosure regime?
  3. Is there a case for overall simplification of procedures?
  4. Is there any cross-over into other jurisdictions – civil or family for instance.

Next Steps

The next phase of the review is for a fuller report to be published in due course with recommendations expected to be made to the Home Secretary in the summer.

Observations

There is no doubt that the work being completed by Jonathan Fisher KC and the Panel is likely to be invaluable in modernising and streamlining the disclosure process.

However, as with most things in life, without proper resourcing of the prosecution authorities and those charged with defending, effective early engagement and targeting of requests may appear easy to articulate as best practice (or requirements) but rather harder to properly undertake.

The court may also be required to consider the disclosure process in a way that moves beyond the current statutory roles of “section 8 applications for disclosure” and issues involving public interest immunity (‘PII’).

We look forward to the final report and will report back upon that when it arrives.

[1] [2023] EWCA Crim 954