Digital disclosure burden threatens to choke prosecutions, KC warns

A criminal justice digital disclosure working group with members from the judiciary and law enforcement responsible for ‘exploring off-the-shelf technological solutions’ in disclosure and AI could help deal with the growing disclosure burden, an expert review recommends.

Jonathan Fisher KC’s review Disclosure in the Digital Age was commissioned by the Home Office to look at ways of reducing the disclosure burden caused by the increasing use of digital devices.  It makes 45 recommendations aimed at reducing the current administrative burden on law enforcement, prosecutors and the courts.

Recommendations include the creation of a cross-agency disclosure learning standard for investigators and disclosure officers; the establishment of a senior disclosure officer accreditation pathway to set consistent standards across law enforcement agencies and the introduction of a revised system for judicial case management of disclosure for Crown court cases.

The independent review evaluated the criminal disclosure regime as well as options to modernise it for all crime types. In the 224-page report, Fisher states: ‘Investigators and academics advised me that the rise in digital devices and disparity in access to digital forensic units has created a backlog of devices, which is significantly delaying the progression of criminal cases and needlessly impacting victims.’

He adds that the delay is ‘plainly unacceptable’.

‘All the signs suggest that the future is increasingly digital, and it is vital that our disclosure regime is fit to deal with it,’ he states.

The report finds that ‘the combination of increased digital material and the short statutory timeline for case progression in magistrates’ courts is a toxic mix, often leading to an inability of law enforcement to process material swiftly enough to meet disclosure deadlines’.

Lack of resources and training are ‘in part to blame’ for ‘disclosure dysfunction’, Fisher states. He adds: ‘Without modernisation, the current regime will be choked of its already limited ability to facilitate the prosecution of serious and voluminous crimes, further eroding trust in the criminal justice system.'

Fraud Minister Lord Hanson (the industrialist James Hanson) said the government would respond in detail to the review’s recommendations in due course.

He added: ‘The review exposes in stark terms how the disclosure process has been compromised by the exponential growth in digital material that is being gathered during criminal investigations, and the huge burdens that is placing on a criminal justice system already under severe strain.

‘We must address these findings and welcome the wide range of solutions provided by Jonathan Fisher KC, including embracing advanced technology and shaking up archaic processes to free up the time of law enforcement, prosecutors and the courts to focus less on burdensome administration and more on delivering justice for victims.’

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