Financial Conduct Authority Practitioners: 21 November 2023
Published 30 April 2024
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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
Criminal Procedures and Investigations Act 1996 (CPIA)
1. The discussion began with reflections on the efficacy and application of the CPIA in today’s digital age. It was suggested that the CPIA is fulfilling, at least in part, its primary objective to prevent miscarriages of justice, providing safeguards to reduce wrongful convictions. However, it was noted that the way in which the CPIA is operationalised has inadvertently created significant burdens for investigators and prosecutors. Knock-on effects are felt throughout the criminal justice system, including drawn-out proceedings impacting defendants and victims.
Digital material and Seizing Devices
2. It was noted that significant resources are required to review and interrogate the increasing volume of digital material recovered during investigations. There were reflections regarding the importance of considering what digital devices are seized and the need to avoid simply taking all such available items.
3. However, it was also noted that during operations, such as taking down a live boiler room scam, the seizure of multiple devices is unavoidable. There is a desire to avoid a world in which investigators decide not to seize devices of interest because of the risk of becoming overwhelmed by disclosure burdens.
4. It was noted that there have been instances, during the lifecycle of a case, where individuals undertaking disclosure related tasks such as reviewing documents (i.e. barristers and paralegals) outnumber those investigating the case.
Investigation Scope
5. It was also noted that when investigating complex cases with multiple defendants, the more criminality that is uncovered, the amount of relevant material can increase exponentially. There was discussion regarding how to focus on the ‘real issues’.
Attorney General’s Guidelines
6. Members considered that the AG’s guidelines offer a good deal of flexibility. This enables investigators to adopt a broader view of material that can be disclosed to the defence whilst avoiding inadvertently not disclosing relevant material.
Technology
7. Investigators use forensic tools and a discovery platform, to review material and sift out empty files and unreadable files. There was discussion about how artificial intelligence could be used in the future to assist with scheduling and smart searching. Current tools will be updated to integrate new technological capabilities, when available.
Defence engagement and Section 8 requests
8. It was noted that it is not uncommon for the defence to avoid engaging with the prosecution until absolutely required. Given the sheer volume of digital material gathered in a complex case, it was noted that late-stage section 8 requests, to re-review material, in part or full, can be very difficult to execute, without causing a significant delay to already lengthy trials.