Transparency data

Representatives' Advisory Panel: 27 March 2024

Published 30 April 2024

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This publication is available at https://www.gov.uk/government/publications/independent-review-of-disclosure-and-fraud-offences-meeting-minutes/representatives-advisory-panel-27-march-2024

Members

Chair

  • Jonathan Fisher KC

Representatives

  • Nik Adams – Temporary Assistant Commissioner, City of London Police
  • Rick Atkinson – Vice President, Law Society
  • Stephen Braviner Roman - Director, Legal Division, Financial Conduct Authority
  • Mark Cheeseman OBE – Chief Executive, Public Sector Fraud Authority
  • Jamie Daniels – Chief Superintendent, Criminal Justice Lead, College of Policing
  • Tim De Meyer - Chief Constable, Disclosure lead, National Police Chiefs’ Council
  • Nick Ephgrave QPM - Serious Fraud Office Director
  • Mark Francis - Director, Enforcement & Markets Oversight, Financial Conduct Authority
  • Lee Freeman KPM – HM Inspectorate of Constabulary & Fire and Rescue Services
  • Rob Jones – Director, National Crime Agency
  • Edward Jones – President, London Criminal Courts Solicitors’ Association
  • Emily Keaney – Deputy Commissioner for Regulatory Policy, Information Commissioner’s Office
  • Richard Las – Chief Investigations Officer, His Majesty’s Revenue & Customs
  • David Lloyd - Commissioner, Association of Police and Crime Commissioners
  • Stephen Parkinson – Director of Public Prosecutions, Crown Prosecution Service
  • Anthony Rogers - Interim Chief Inspector, HM Crown Prosecution Service Inspectorate
  • Alex Rothwell – Chief Executive Officer, NHS Counter Fraud Authority
  • Andrew Thomas KC – Executive Member, Criminal Bar Association
  • Sam Townend KC - Chair, The Bar Council
  • Paul Trevers - Assistant Commander Operations, Met Police
  • Mark Watson – Ex officio secretary, Criminal Bar Association

Junior Counsel

  • Anita Clifford – Red Lion Chambers
  • Alex Davidson – 2 Bedford Row Chambers

Officials: Secretariat

Introduction

1. The Chair of the Review, Jonathan Fisher KC welcomed members to the Representatives’ Advisory Panel Meeting. He gave a brief overview of his approach to the Review, highlighting that he has been keen to hear first-hand from practitioners regarding their experience of their roles in upholding the disclosure regime.

2. The Chair further outlined the programme of stakeholder engagement that the Review has undertaken since its commencement in October 2023. With reference to the discussion paper circulated to members in advance of the meeting, the Chair gave an overview of his emerging findings.

Discussion

3. The Chair asked Members for their assessment of the operation of the disclosure regime, as set out in the Criminal Procedure and Investigations Act 1996[footnote 1] (CPIA). He also asked for the panel’s views on the discussion paper The following observations were made:

CPIA

4. It was suggested that although the principles behind the CPIA are the right ones, the reality of its application places a heavy burden on often inexperienced investigators. The was broad consensus that the CPIA, in the context of the English and Welsh criminal justice system, is the most appropriate legislative framework.

5. There was also consensus that the differences between an average criminal case heard in the Magistrates’ court and a particularly complex Crown Court fraud case are so substantial, that the historic ‘one size fits all approach’ may no longer work.

6. Further, it was noted that there is some variation in the way material is recorded, retained, searched, and disclosed for different crime types including Financial Crime, Serious and Organised Crime and rape and serious sexual offences. Therefore, an effective regime should have enough flexibility to facilitate effective disclosure in each case.

Definition of Relevant Material[footnote 2]

7. There was broad consensus that the width of the current definition is necessary to enable investigators, and particularly more inexperienced ones, to gather, record and retain sufficient material to follow all reasonable lines of enquiry. It was suggested a separate narrower definition could be used when considering what material needs to be scheduled. It was proposed that this second definition of relevance could adopt a proportionality feature concerning issues identified in the case.

8. It was noted that changes are being proposed to add proportionality to the gathering and interrogation of material, particularly in the context of police seizing third-party material[footnote 3] and material from complainants’ devices,[footnote 4] through the Government’s draft Victims Code. It was agreed that the ongoing duty to disclose acts as a vital safeguard.

Keys to the Warehouse

9. There was a broad sentiment that the ‘keys to the warehouse’[footnote 5] model would not be suitable for the majority of criminal cases. Alternatively, it was proposed that due to disclosure failings in the Magistrates’ court, a keys to warehouse approach should be considered.

10. It was noted that a move towards the ‘keys’ approach would diverge from the traditional expectation regarding the Crown’s obligation to bring and prove the case. Further concerns were discussed including privacy rights, risks to vulnerable complaints and complications regarding legal professional privilege material.

11. There was a short discussion regarding the challenge of asking legal aid funded firms to undertake significantly more work if given keys to the warehouse. There was agreement on a need to avoid simply just shifting the burden from the prosecution to the defence.

12. It was also suggested that a ‘keys to the warehouse’ approach, for all criminal cases, could lead to a cultural shift where investigators become less diligent in looking for exculpatory material, in the belief that it is the defence’s responsibility to do so.

13. Another suggestion was made whereby the list of ‘common documents’ could be added to the presumptive material, thereby creating an expectation on the prosecution to disclose these items, or categories of information in most cases.

14. There was more support, however, for the Review to explore a ‘keys to part of the warehouse’ approach, for particularly high-volume crime types. It was suggested that such an approach, if executed correctly, could see a more transparent criminal justice system and reduce unnecessary burden on law enforcement. It was proposed that the prosecution could make better use of section 21 of the Police and Criminal Evidence Act 1984[footnote 6], in order to hand over material the defendant previously or currently has access to.

Digital material

15. There was a broad consensus that the volume of digital material is exacerbating the problems with the current CPIA disclosure regime and that the average volume of material per case will continue to rise.

Technology and Artificial Intelligence (AI)

16. There was consensus around an optimistic assessment that emerging technology, such as machine learning and AI, will increasingly play a positive part in the criminal justice system and if utilised safely, will benefit all parties.

17. It was surmised that law enforcement is playing catch up, regarding utilising advanced technology that can assist investigators in the collation and analysis of material. Regarding disclosure specific tools, it was noted that machine learning is already being piloted, to assist investigators in determining what order to review material that could either undermine or assist a prosecution.

18. There was agreement that such tools and AI more broadly, will continue to evolve and improve in terms of its accuracy and reliability, as the leading technology firms invest in and improve their products. There was a diversity of views on how quickly this would happen a general agreement that the field of AI and machine learning is moving at pace.

19. It was considered that law enforcement is currently criticised for disclosure mistakes and inexperienced officers taking a too risk adverse approach. There was a discussion on investigator fallibility, particularly when reviewing thousands or millions of documents and how much more accurate technology assisted review might be. There was broad agreement that reliable AI tools should be used with human checking and accountability measures in place.

20. The matter of assessing risk appetite when using emerging AI tools was raised. There was a caution that machine learning tools need to be properly trained by personnel with sufficient expertise.

21. There was broad agreement that some form of central guidance or protocol should be created for law enforcement, to ensure emerging tools are used in a fair and effective way. To ensure the criminal justice system has faith in the use of emerging technology, there must be a strong and clearly articulated rationale for the public and all key parties.

Pre-charge engagement: Defence

22. There was consensus about the benefits that early engagement could bring. This included greater transparency about the prosecution’s approach and for the court to be able to understand the real issues in a case early on. There was support for more consistent use of the current Disclosure Management Document.

23. There was support, in principle, for a bespoke disclosure hearing in high volume complex criminal cases but concerns were raised about the ability to implement this when considering the constraints around court and judicial capacity and legal aid funding requirements arising from additional hearings. It was noted that there are already a significant number of hearings in Crown Court cases. Additionally, it was raised that sufficient remuneration would need to be available to ensure that all parties could meaningfully prepare for any additional hearings.

  1. https://www.legislation.gov.uk/ukpga/1996/25/contents ↩

  2. CPIA Code of Practice 2.1 “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.” ↩

  3. New draft Victims Code – January 2024 ‘The Government will legislate to ensure that police requests for third party material about victims are proportionate and appropriate to an investigation’. ↩

  4. Updates in the new draft Victims Code ‘The Police, Crime, Sentencing and Courts Act 2022 (section 37) means that the police can request to extract information from a [Victim’s] digital device but can only do this…where it is relevant, necessary and proportionate to their investigation’. https://www.gov.uk/government/publications/victims-and-prisoners-bill/updates-in-the-draft-new-victims-code ↩

  5. Keys to the Warehouse – Process whereby the prosecution gives the defence access to all material gathered during a case. ↩

  6. PACE Section 21 -  https://www.legislation.gov.uk/ukpga/1984/60/section/21 ↩

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