Review of the criminal disclosure regime by Jonathan Fisher KC

On 20 March 2025, the Home Office published the outcome of Part 1 of Jonathan Fisher KC's independent review of Disclosure and Fraud Offences in a report titled "Disclosure in the Digital Age" (the "Report"). The Report includes 45 recommendations, designed to assist in the development of a modern disclosure regime that embraces technology in order to minimise needless administrative burdens on law enforcement agencies. In a statement on 20 March 2025, the Home Office stated that the government are considering the recommendations made in the report and aim to provide a response later this year. This briefing considers the key recommendations made in the Report, and possible next steps.

Context – challenges in the current disclosure regime

The rapid growth of the volume of digital material now relevant to many criminal investigations, particularly those relating to serious or complex financial crimes such as fraud, has given rise to significant challenges for law enforcement and prosecution agencies in the UK. By way of example, the Report notes that the average Serious Fraud Office ("SFO") case has around 5 million documents. Some have therefore argued that the current regime, governed by the Criminal Procedure and Investigations Act 1996 ("CPIA") is no longer fit for purpose.

In particular, the CPIA requires the prosecution to disclose to the defendant any prosecution material which has not previously been disclosed, and which might reasonably be considered capable of undermining the case for the prosecution or assisting the case for the defence. The CPIA also requires the creation of a Code of Practice which details the way in which investigators are required to record, retain and reveal material to the prosecution. In particular, the current Code of Practice, which has been updated since first being introduced, states that officers must identify 'relevant' material, which is set out in a schedule. The prosecutor is then obliged to review the schedule of unused material and any material likely to meet the disclosure test. The schedule of unused material is provided to the defence (with the exception of sensitive material, which must be scheduled separately).

Those challenges have been evidenced by certain recent cases brought by the SFO, particularly the collapse of its prosecution of two former directors of Serco Geografix Limited in 2021 as a result of disclosure failings (see our previous briefing for further detail). In his report on the case, published in July 2022, Brian Altman KC described the SFO as under-resourced and underprioritising disclosure. It was suggested that, although disclosable items were identified, they were not subsequently scheduled with sufficient accuracy or detail to allow prosecuting counsel to identify them as disclosable. The lack of a robust, standardised, and consistent quality assurance process was heavily criticised, as was the inexperience of those appointed as disclosure officers.

Against this background, the government committed to launching an independent review of the disclosure regime in its 2023 Fraud Strategy, culminating in the publication of the Report. The Report makes a total of 45 recommendations, those which may be of particular interest to readers of this blog are summarised in the following section.

Key recommendations from the Report

Legislative framework

According to the Report, the CPIA framework for disclosure of unused material remains fit for purpose. The Report nonetheless recognises, however, the difficulty of translating the legislative framework into operational reality (exacerbated by the unforeseen growth in the volume of digital material now available). The Report therefore recommends the issuance of additional guidance and that the CPIA is updated to reflect recent judgments regarding disclosure best practices in the digital age.

The Report notes that consideration has been given to an alternative system of disclosure, in particular the so-called "keys to the warehouse" approach (where a defendant is given access to all material held by the prosecution). However, the Report concludes that this approach could not be implemented without a substantial change to the criminal justice system and revision to data protection legislation.

More generally, the Report recommends consolidating the various existing forms of guidance into a refined single guidance document, to be referenced in legislation.

Investigations

As regards the conduct of criminal investigations, the Report recommends:

1. Amendments to the Code of Practice, to make clear that technology can be used to identify material which may be relevant to an investigation and that there is no duty for every item of prosecution material to be manually reviewed. Importantly, the relevance test¹ should not be narrowed, as its width provides a safeguard during the investigation phase and encourages inexperienced offices to cast their net wide as they record and retain relevant material, allowing them to pursue all reasonable lines of inquiry. Narrowing this test may encourage a culture where important material is not seized, thereby increasing the risk of a miscarriage of justice.
2. That Section 6 of the Code of Practice should make provision for the use of technology to assist in the creation of modern, resource-efficient schedules. Section 6(b) of the Code of Practice should be updated to allow the appropriate use of 'metadata schedules', in conjunction with descriptive schedules and block listing. This is because the type of data provided within a metadata schedule, for example, document author, sent date, recipients, save folder, subject title and attachments, is often more categorical in nature than 'written' schedules.

The SFO has welcomed the Report's recommendations, noting it was "pleased to see emphasis on the greater use of technology", an area it is already exploring with Technology Assisted Review. It added that "The SFO will continue to work with Government and stakeholders to bring disclosure practice into the digital era." The SFO's most recent Business Plan (discussed in our previous post) contains a commitment to progress disclosure reform.  

Technological solutions

In order to best utilise new technologies in the disclosure process, the Report recommends the creation of a Criminal Justice Digital Disclosure Working Group to consider existing advanced technological tools for the management of disclosure and evidential material, the functionality that these tools provide and the requirement to regularly review the use of such tools. It also recommends the creation of a cross-agency protocol, to cover the ethical and appropriate use of artificial intelligence in the analysis and disclosure of investigative material.

Training

In light of a lack of clarity among disclosure officers on how the CPIA test for disclosure should be interpreted, the Report recommends that all major law enforcement agencies should agree a national learning standard for new officers regarding the importance of disclosure; and that law enforcement officers should be expected to undertake 'refresher training' at set intervals.

Case Building Communication

The Report recommends an expectation in the Consolidated Guidance that an investigator speak with a prosecutor at the pre-charge stage, to agree on a disclosure strategy and reasonable lines of inquiry. On complex cases or cases with large volumes of digital material, investigators and prosecutors should meet at least quarterly to discuss the disclosure approach.

Intensive Disclosure Regime

The Report recommends the implementation of a revised system for judicial case management of disclosure for Crown Court cases, including an Intensive Disclosure Regime ("IDR") for the most serious, complex, or otherwise difficult cases. This would include a requirement that the defence be provided with a copy of the Disclosure Management Document ("DMD"), at least seven days before the Pleas and Trial Preparation Hearing ("PTPH"). In particularly serious, complex and/or voluminous cases, the judge would set a timetable for service of the DMD. The Report recommends an expectation that, at the PTPH in all Crown Court cases, all matters in the DMD will be discussed – with particular focus on matters in dispute.

The Report's recommendations focus on appropriate case management and training in order to harness the full potential of existing technologies in the disclosure process. However, the Report emphasises that the IDR is not intended to “abdicate responsibility from the prosecution or defence to resolve as many of these matters as possible, between one another, without taking up precious judicial time to resolve disputes that could be sensibly settled outside of court.”

Lessons learned

The Report also highlights the importance of learning from past weaknesses in disclosure practices. It therefore recommends that where the Court of Appeal quashes a conviction for disclosure failings, the relevant prosecution authority should perform a review of the case to ascertain the reasons for the error(s). The result of the review should inform changes to internal processes if required; and the potential impact of the failings in other cases, where convictions have been recorded, must be considered.

Defendant's own material

Both prosecution and defence professionals have articulated their frustrations at the inability of the prosecution to hand back to a defendant material to which the defendant previously had access and concludes that there would be benefit in creating provision to accommodate this type of return without the need for law enforcement to schedule all relevant items. The use of this provision would be limited to single defendant cases and would be discussed at the PTPH.

Commentary and next steps

As noted above, the government is considering the Report and will respond in due course. It therefore remains to be seen whether, and to what extent, the various recommendations will be adopted. The Home Office commentary to date does however recognise the challenges posed by the current regime, and the difficulties faced by the criminal justice system, suggesting that some level of reform will be on the legislative agenda.

The wider review continues, with the terms of reference for Part 2 having been published on 22 April 2025. Part 2 is intended to examine the greatest challenges faced by law enforcement and prosecutors in brining criminals committing fraud offences to justice in England and Wales and will consider the following:

• Reporting and disruption: the means and methods by which law enforcement can detect and disrupt fraudulent activities, including evaluating incentives for criminal fraud networks informants and whistleblowers.
• Investigation: the skills, tools and powers required for investigators to rapidly pursue leads, review case material, and share relevant data with private partners and other law enforcement agencies, including internationally.
• Prosecution and offences: evaluating whether fraud offences and the Fraud Act 2006 can keep pace with modern offending. This will include assessing enablers of fraud (such as ID theft and the use of artificial intelligence) and considering whether there should be a greater role for civil penalties.
• Courts: assessing whether the criminal courts are equipped to hear complex fraud cases.
• Penalties: considering whether the current penalties fit the crime, including whether courts should be able to use more creative punitive measures beyond custodial sentences. This will include evaluating penalties for companies failing in their duties to reduce and prevent fraud.
• Rehabilitation: consideration will be given to whether the current network of support for victims is sufficient and what more can be done to rehabilitate offenders.

The recommendations for Part 2 are expected to be published in December 2025.

It is noteworthy that the areas to be covered by Part 2, such as the incentivisation of whistleblowers, align with areas that have recently been the focus of SFO communications. The re-stated desire to harness technology to help "resolve the very disclosure challenges that it exacerbates" is also unsurprising, given the broader focus on how AI, in particular, can be used help manage the proliferation of material.  

Although it is not yet clear precisely how the Part 1 recommendations will be implemented, and what conclusions will be reached in Part 2 of the review, the review as a whole represents a continued government focus on the investigation and prosecution of financial crime, particularly fraud. This is an area where companies should expect new measures and strategies to continue to be introduced, and which will likely remain an area of governmental focus for the foreseeable future.

1 The relevance test (set out at paragraph 2.8 of the Code of Practice) states that material may be relevant to an investigation [and should therefore be retained] if it appears to an investigator, or to the officer in charge of an investigation, or to the disclosure officer, 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.