Transparency data

National Crime Agency investigators: 29 February 2024

Published 30 April 2024

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 explained the scope of the Review. He highlighted the importance of hearing first hand, from investigators, prosecutors, and practitioners, who operate the disclosure regime.

Discussion

Criminal Procedure and Investigations Act 1996 (CPIA)

1. It was suggested that the CPIA needed updating to bring it into the modern world, considering the increasing volumes of digital material in criminal cases. However, there was a consensus that, with enough resource, the CPIA can be made to work. Whilst disclosure issues had not caused cases to collapse for the investigators interviewed, there are still significant concerns about the burdens created.

Training

2. It was agreed that training for inexperienced officers is crucial in encouraging officers to see the importance of their role as ‘fact finders’, not simply assembling material that fits a case theory. It was noted that training quality can vary between law enforcement agencies and in some cases is seen as insufficient. Officers tend to learn about disclosure whilst practically on a case and it was agreed there needs to be a move away from viewing the CPIA as a tick-box exercise.

3. Investigators made clear that new training must be balanced with the range of other important competing responsibilities that officers have. Officers can be time-poor and therefore this can make disclosure, which is inherently a task that requires resource and critical thinking, challenging. There was a suggestion that disclosure training should be accredited.

4. The Investigative Management Document^{[footnote 1]} was viewed as a positive invention and officers suggested they would benefit from further formal training in making the most of the framework. Staff turnover was identified as a cause of significant pressure.

Dedicated Disclosure Officers

5. To improve disclosure, officers noted that they were re-examining governance structures and had implemented a requirement for dedicated disclosure officers in certain case types.

6. A disclosure officer’s remit also includes case management. Where before there was a frequent back and forth between the National Crime Agency (NCA) and Crown Prosecution Service (CPS), disclosure officers can swiftly assess requests from the CPS and ensure submissions meet standards. The disclosure officer then becomes a subject matter expert.

Relevancy Test

7. Concerns were raised regarding the width of the relevant material test^{[footnote 2]}. Out of a sense of caution, interpretation of the test can lead to over disclosure. It was also noted that relevancy changes across an investigation. There was a diversity of views on whether a narrower definition of relevance would be beneficial.

Engagement with CPS

8. It was agreed that communication with the CPS could be improved. There was a strong desire to engage the CPS early and work together to identify key issues and disclosure strategy. It was stressed that early engagement, prior to scheduling, is particularly useful in ensuring officers’ time is used most effectively. Participants noted that due to the NCA’s mission, structure and role, issues identified may not be mirrored by other law enforcement agencies.

Early Engagement with Defence

9. Early engagement with defence was strongly supported and it would assist in focusing a case on the real issues. It was recognised that late stage CPIA section 8 requests, or issues that could have been raised at a much earlier stage, can create a significant burden and delay to case progression.

10. It was also noted that defence engagement often only arises after a charge is made, which requires the investigators to have already reviewed and scheduled the material. There was also a desire to see greater accountability from the defence when defence statements were not issued.

Courts

1. It was agreed that law enforcement would benefit from greater judicial engagement regarding disclosure approach and expectations.

Use of Technology and Artificial Intelligence

12. The volume of digital material poses a significant challenge for investigations. The triaging of documents in digital material heavy cases has been found to be particularly useful, although a broad search terms approach can still produce thousands of documents that may not be relevant. The cost of searches was highlighted as a concern.

13. It was suggested that, in an ideal world, officers would have access to a single investigation technology platform, although this is still many years away. Currently, investigators use a range of software tools to record, retain, analyse, search and disclose material. Whilst it was agreed there has been a significant advance in artificial intelligence review tools, it was emphasised ultimately any future technology solutions will still need a human ‘in the loop’ and ultimately accountable for decisions made.

Redaction

14. It was suggested that law enforcement and the CPS are applying General Data Protection Regulation too stringently and therefore a significant amount of time and resource is wasted undertaking unnecessary redaction.

1. The IMD was introduced on 31st December 2020 and used by the Crown Prosecution Service to inform the Disclosure Management Document. ↩

2. The CPIA Code of Practice ‘relevant material’ test states that “Material may be relevant to an investigation if it appears…that it has some bearing on any offence under investigation or any person being investigated, or on the surrounding circumstances of the case, unless it is incapable of having any impact on the case.” ↩