Insolvency Service: 7 March 2024
Published 30 April 2024
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Introduction
The Chair of the Review, Jonathan Fisher KC, summarised the terms of reference, scope of the Review and emerging findings. The following was discussed:
Discussion
Criminal Procedure and Investigations Act 1996 (CPIA)
1. Participants observed that the width of the CPIA ‘relevancy test’ is significant and it can be difficult to confidently draw a line around the ‘surrounding circumstances’[footnote 1] of a case. There was consensus that the test is subjective and open to a variety of interpretations.
2. It was suggested that, if argued well enough, almost no item of material is “incapable of having an impact on the case”. Therefore, the prosecution can tend to err on the side of caution, which is a contributory factor in the increasing volume of material in many cases. It was suggested that a more manageable approach could be to consider if material would be ‘likely’ to have an impact on the case.
Disclosure Officer
3. It was noted that the Insolvency Service is making the current regime work, but doing so creates a significant burden on resources. Participants agreed that, where possible, having a standalone disclosure officer assigned to a case early on in complex cases is very effective in ensuring CPIA duties are complied with.
4. It was suggested that the Review should examine the creation of a statutory role of a disclosure officer in complex cases in a way that this was created for the role of custody officer in the Police and Criminal Evidence Act 1984 to support funding.
Early Engagement
5. Participants stressed that case management would be made substantially easier if the defence engaged early with the key issues of the case. It was suggested that the Service could then find key material, including material that the defence sought, much more swiftly. The Disclosure Management Document was seen in a very positive light, but it was noted that it was rare for defence to engage with it or proposed search terms. It was suggested that, as seen in the Newcastle Crown Courts, there could be an improved culture of engagement overseen and enforced by the judge, including the creation of an early disclosure hearing.
Digital Material
6. Large and increasing volumes of digital material continue to pose a challenge for investigators. It was suggested that metadata was being used to assist reviews in this process and the use of standardised technology should be explored and introduced. The redaction process, in particular, was noted as being onerous and time-consuming in complex cases due to the General Data Protection Regulation requirements.