HM Revenue and Customs investigators: 24 January 2024
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
Practitioners were asked to reflect on the Criminal Procedure and Investigations Act 1996 (CPIA), specifically part 1 disclosure. The following observations were made.
CPIA
1. Participants agreed that broadly, the CPIA is working. However, it was noted that the application of the legislation is an issue and a gradual move away from compliance in certain areas was noted.
2. The width of the ‘relevance test’ was raised as problematic due to the volume of material that falls within its scope. It was suggested in complex material that most material could be argued to have some bearing on the case. It was noted that this is a particular issue with cases that persist for many years due to the volume of material generated, and because of the range and volume of material that HMRC hold in respect of individuals. However, it was noted that if the relevance test was narrowed it may result in an unintended consequence of material of value not being disclosed.
Defence Engagement
3. Participants agreed that early defence engagement would be beneficial and would assist with identifying reasonable lines of inquiry early on which would reduce the volume of material when considering its relevance. It was raised that there is currently no incentive for suspects to engage in pre-charge matters.
4. To encourage engagement, participants suggested there should be something in place linking pre-charge engagement and the ability to challenge decisions made by a judge at a later stage.
Courts
5. It was discussed that increased judicial oversight and early direction is largely welcomed, in particular on the prosecution’s disclosure strategy.
Training and Resource
6. Participants explained that there is a foundation training course for new criminal investigators, including content on disclosure. Having completed the foundation course, all investigators will progress through further training courses that cover three levels of competence.
7. It was further explained that staff retention is a problem. Participants acknowledged that whilst a case may be assigned several disclosure officers, long running cases can be affected by a high level of staff turnover. As a result, numerous different disclosure officers may work on a case over the course of its lifetime, creating a lack of continuity. It was also explained that external junior barrister resource can be contracted for larger cases when needed.
8. Participants also considered the resource issue to be a cultural one. Although disclosure officer roles are highly necessary, it is a role that is often viewed as undesirable and less interesting than other roles in law enforcement. This may be attributed to the substantial responsibility that comes with the role, alongside the volume of material that disclosure officers are frequently required to manage.
Technology
9. Participants explained that they are currently using in-house disclosure tools to assist officers. In considering new disclosure tools on the market, it was noted there are challenges with respect to procurement, implementation and compatibility.
10. It was recognised that artificial intelligence (AI) is an emerging sector and AI tools will continue to improve in the coming years. It was noted that HMRC is exploring options to get the most out of their tools, including testing large language models, which could assist with generating schedule descriptions. Participants also noted that AI was being explored to assist with extracting the most relevant material. However, participants considered that AI would still need to have a human ‘in the loop’ and an officer ultimately responsible for key decision making.