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The UK Serious Fraud Office has launched a review of its past and present cases after uncovering problems with crucial software used in evidence disclosure, marking the latest blow to the troubled prosecutor.
The agency opened the review after an internal memo in February flagged problems with the disclosure tool during its investigation into London Mining, according to two people familiar with the matter.
In a statement on Friday the SFO said it was informing defendants in all affected cases about the issue, which affected its ability to search for relevant terms in evidence, but that it had identified a fix for the problem.
“We have deployed an effective solution to address an identified issue affecting some searches on our current e-discovery software and are disclosing the issue to defendants on relevant cases in line with our duties as a responsible prosecutor,” the SFO said in a statement.
But according to the people familiar with the situation, issues with an older disclosure tool have forced the agency to review historic cases as well, raising the prospect of past convictions being subject to challenge.
The revelation marks an escalation of the agency’s problems with disclosure, a crucial aspect of criminal procedure that demands the prosecution hand to the defence any evidence that could help their case.
“The prosecution’s compliance with its duty of disclosure is a fundamental part of the right to a fair trial,” said Neil Swift, a white-collar crime lawyer at Peters & Peters. “It is of critical importance that the means used to interrogate electronic material is properly understood by the prosecution.”
The new issue relates to OpenText Axcelerate, a software provider the SFO started using in 2018, including in its current probe into London Mining.
However, the SFO is also reviewing cases that used a tool from its old provider, Autonomy Introspect. Issues with that software contributed to the collapse of its prosecution against three former executives at G4S last year.
The issues with Autonomy related to how the software recognised punctuation, the people said. These included a failure to properly recognise non-character letters such as full stops, and meant name searches could miss documents in certain formats.
The SFO’s software issues were first reported on Friday by Global Investigations Review.
Disclosure issues have longed dogged the prosecutor, and also torpedoed a case against former Serco executives in 2021, triggering an external review of its disclosure processes.
Brian Altman KC, who led that review, noted in his report that a disclosure officer said the Autonomy software was “unreliable” and “he had no faith in the Autonomy system”.
The SFO is also currently awaiting a report from the watchdog the HM Crown Prosecution Service Inspectorate, set to be published this month, on the SFO’s approach to disclosure and whether it has the required skills and infrastructure to meet its obligations.
OpenText did not immediately respond to a request for comment.
The developments come six months after Nick Ephgrave became director of the agency. The former police officer, and the first non-lawyer to run the SFO, has tried to move more quickly on cases in a bid to turnaround the beleaguered prosecutor, opening at least five investigations since he started.
Ephgrave took over the helm from Lisa Osofsky, a former FBI lawyer. Osofsky has taken up a new role at consulting firm AlixPartners.
Additional reporting from Michael O’Dwyer
