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Two panels of top legal experts will assist a government-ordered independent review looking at potential reforms of disclosure rules and fraud laws following the collapse of a series of white-collar criminal investigations in English courts.
Jonathan Fisher KC, the senior barrister leading the review, will next week announce the creation of two groups of advisers — a practitioner’s panel and a representatives’ panel.
They will uphold a two-stage probe that will start by looking at whether the rules governing the disclosure of evidence in England and Wales are fit for purpose before switching to assessing whether fraud laws and penalties have kept up with changes in criminal behaviour.
Fisher said the review of the disclosure rules, which govern how unused material in criminal investigations is handed over by the prosecution to the defence, would go beyond fraud and economic crime to include other offences. He will make his recommendations to the government by September next year.
“It goes to the heart of the integrity of our criminal justice system to have a process for the handling of unused material in an investigation, which is fair and proportionate for the prosecution and for the defence,” Fisher said.
“We don’t want to have a situation where there are miscarriages of justice,” he added. Disclosure has long been an issue, particularly for white-collar crime, and is often cited as a reason for the collapse of cases.
Prosecutors are obliged to disclose any materials not being used as evidence which could aid a defendant’s case. But the task has become increasingly unmanageable in a digital age, with millions of pieces of electronic evidence.
Nick Ephgrave, who took over as director of the Serious Fraud Office in September, told the Financial Times the disclosure rules were a drain on resources. “Even if you can review and order all your material before you can hand it over you then need to redact it, and that can be a very time-consuming task,” he said.
The SFO was forced to abandon its case against former executives at the security company G4S this year before it reached trial over spiralling costs and prolonged delays, many of which were linked to disclosure.
Another high-profile case, against former executives of Serco, was thrown out in 2021 mid-trial after it emerged that the SFO failed to hand crucial material to the defence.
The debate over disclosure has led to calls from some quarters of the legal profession for the former “keys to the warehouse” approach to be reinstated. Before changes in the mid-1990s, the defence would be given access to all the unused material to explore through themselves.
However, reverting to the old system raises questions about costs for defendants and issues around the contravention of privacy and legal privilege.
The second part of Fisher’s review will be the first independent look at fraud offences in nearly 30 years with his recommendations due by February 2025.
The practitioners’ panel will be made up of leading prosecution and defence barristers, as well as people from public bodies, such as former law commissioners and directors of public prosecutions. The second panel will consist of individuals from representative bodies for the legal profession and others who work in the criminal justice system.
