Fisher Review (Part 1)

A Criminal Justice Digital Disclosure Working Group, comprising law enforcement, prosecution, defence and judicial representatives, should be created to consider: a. Existing advanced technological tools for the management of disclosure and evidential material across the criminal justice system and the functionality that these tools provide, including in facilitating access for the defence and judiciary. b. Metrics required to evaluate the accuracy, security and value for money. c. The skills and training required to operate such software. d. The degree to which all criminal justice partners can have confidence in such tools. e. The requirement to regularly review the use of such tools.

To support the wider use of advanced technology in the criminal justice system, a cross-agency protocol should be created, covering the ethical and appropriate use of artificial intelligence in the analysis and disclosure of investigative material.

To capture economies of scale and increase join-up, Law Enforcement should consider the benefits of a central technology procurement unit, which could negotiate on behalf of multiple forces who seek to procure a tool from the same provider.

That a new governance model for digital forensics be created to streamline decision-making and standardise access to digital forensic capabilities in all investigations.

Undertake a review of law enforcement and local police force access to secure platforms for the sharing of sensitive material.

Make clear in Consolidated Guidance that the section 3 CPIA test is an objective assessment.

Regarding the identification of relevant and disclosable material, that the following changes be made: a. Identifying Relevant Material — Amend the Code of Practice, creating a new section, 'Reviewing Material', to make clear that technology can be used to identify material which may be relevant to an investigation (as defined in paragraph 2.1 of the Code of Practice) and that there is no duty for every item of prosecution material to be manually reviewed. b. Identifying Material that may meet the Disclosure Test — Amend paragraphs 7.2 and 7.3 of the Code to make clear that the duty on the disclosure officer to draw to the attention of the prosecutor material in possession that may meet the disclosure test does not require every item to be manually reviewed. In cases involving a large volume of material, a disclosure officer can be aided by technology to identify material that may meet the disclosure test. c. Reviewing material for disclosure — Amend paragraph 10.2 of the Code to make clear that, in cases where the disclosure officer has identified a large volume of material that may meet the disclosure test, the prosecutor can similarly be assisted by technology when reviewing the material for the purposes of determining whether it meets the disclosure test. None of the above affects the ability of the defence to object to the approach taken to identifying or reviewing such material and if the defence take objection, it should be raised at the earliest opportunity and be linked to the defence statement.

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.

In circumstances when a defendant has indicated that he/she is likely to plead guilty to an indictable only or either way offence unlikely to remain in the magistrates' court, the investigator, with the agreement of the designated prosecutor, should not have to produce a full schedule of unused material before a charging decision is taken. The Code of Practice section 6.4 should be updated to reflect this.

The Information Commissioner's Office and National Police Chiefs' Council should issue guidance regarding redaction expectations in a law enforcement context. This change should be reflected in section 6(c) of the Code of Practice, single Consolidated Guidance, and in the College of Policing Learning Standards.

There should be consideration of the establishment of a 'data bubble' between law enforcement and the Crown Prosecution Service so that data and information can be shared unredacted for the purposes of a charging decision.

Consideration should be given to whether CPIA and Code of Practice obligations should apply to anyone undertaking a criminal investigation.

All major law enforcement agencies should agree a national learning standard, for new officers, regarding content on the operation of the criminal justice system and the importance of disclosure. Each agency should ensure the required content be taught but be given the flexibility to do so within the context of their introductory training programmes. (Bronze)

Regarding the further training of law enforcement, the following changes be made: a. A cross-agency disclosure learning standard, for investigators and disclosure officers, should be created. The standard should cover: i. The role of an investigator within the criminal justice system. ii. Their obligations created by the Criminal Procedure and Investigations Act and Code of Practice. iii. The practical application of the disclosure regime and use of technology in material management. b. Law enforcement agencies and police should record and report on training completion rates. (Silver)

A Senior Disclosure Officer accreditation pathway, for use across law enforcement agencies, should be established to set consistent standards for officers managing disclosure in complex criminal cases. (Gold)

Bronze and Silver training and learning standards, referred to earlier, should be reviewed and refreshed by the College of Policing at regular intervals. Law enforcement officers should be expected to undertake 'refresh training' at set intervals.

There should be more stringent quality assurance regarding the delivery of disclosure learning by the College of Policing, Higher Education Institutions and other delivery partners. The results of these assessments should be shared with the National Police Chiefs' Council.

The Consolidated Guidance should include an expectation for an investigator to speak with a prosecutor at the pre-charge stage, and to agree on a disclosure strategy and reasonable lines of inquiry, in every case (excluding motoring offences).

The Consolidated Guidance should set out an expectation that investigators and prosecutors, on complex cases or cases with large volumes of digital material, should meet at least quarterly to discuss disclosure approach.

The Crown Prosecution Service should review, set out and communicate arrangements to assist investigators who seek urgent advice regarding disclosure matters in instances where they have been unable to contact the designated prosecutor.

A revised system for judicial case management of disclosure should be put in place for Crown Court cases, including an Intensive Disclosure Regime for the most serious, complex, or otherwise difficult cases. This process should be set out in Criminal Procedure Rules, with any further detail added to the single Consolidated Guidance.

Update the Criminal Procedure Rules to include a requirement for the prosecution to provide the defence with a copy of the Disclosure Management Document (DMD), at least 7 days before the Plea and Trial Preparation Hearing. In particularly serious, complex and/or voluminous cases, where this is not deemed possible, for the judge to set a timetable for service of the DMD. This new requirement should apply in full code test anticipated not-guilty plea cases and not in Threshold Test cases or guilty anticipated plea cases.

Confirm the existing requirement that a Disclosure Management Document be prepared in all Crown Court cases. Extend requirements for the prosecution to provide details including but not limited to: a. Understanding of case issues. b. Reasonable lines of inquiry. c. Categories and volume of material in possession. d. Disclosure strategy. e. Approach to digital material and any potential video footage. f. Technology used and the steps taken to quality assure such tools. g. Approach to third-party material. h. Approach to scheduling material. i. Primary disclosure duty progression. j. Estimated time required to execute strategy. k. [Where relevant] Linked investigations. l. [Where relevant] Approach to obtain international material. m. Complexity of the disclosure issues. n. Whether, in the prosecution's opinion, the case should be considered for the Intensive Disclosure Regime. o. Certification by [relevant officer] on the steps taken to ensure correct configuration and competent operation of any advanced technology used during the disclosure process.

Set out in Criminal Procedure Rules the expectation that, at the Plea and Trial Preparation Hearing in all Crown Court cases, all matters in the Disclosure Management Document will be discussed — with particular focus on matters in dispute. That this process is overseen by the judge, utilising their case management powers, with the expectation of defence engagement.

That the Criminal Procedure Rules be amended so that the following factors are considered when deciding whether to grant permission for the making of a late application under section 8 of the CPIA: a. If the material requested is necessary for a fair trial. b. The disclosure of the material would not be a breach of data protection legislation. c. The degree to which the defence has engaged with the Disclosure Management Document. d. Reasons for delay in section 8 application. e. The potential delay/disruption to trial.

A research study should be undertaken to determine if there are any significant differences in decision making on disclosure between lay magistrates and district judges to determine whether there are any resulting training and development needs for magistrates.

Ensure officers, presenting material as part of a summary only magistrates' court case, are supported in their consideration of what material should be scheduled by the increased use of the MG6C or other template. This may include suggested categories of material or examples of the types of material typically disclosed in such cases.

Add wording to the Consolidated Guidance reminding investigators and prosecutors to apply the disclosure test to any material showing that a financial matter has impacted a decision to prosecute.

Set out in Criminal Procedure Rules that having heard representations from the prosecution and defence at the PTPH, the judge has the discretionary power to designate a case an 'Intensive Disclosure Regime' case, including in instances where the prosecution has not applied for the provision.

Once a case has been designated an Intensive Disclosure Regime case, make the following provisions: a. The prosecution will provide the court with an updated Disclosure Management Document containing full details regarding the configuration and operation of any advanced technology they have or propose to use, for material management and disclosure purposes. b. A judge may order the prosecution to provide further detail on matters within the Disclosure Management Document where required.

Extend current provisions, in the Criminal Procedure Rules, to oblige the defence, in Intensive Disclosure Regime cases, to respond to the Disclosure Management Document through a 'Response to Disclosure Management Document' (RDMD), mirroring the prosecutions' form. In doing so, the defence would be required to comment on matters such as: a. Identifying the trial issues (as they appear at that stage). b. Detailing their agreement/disagreements with the prosecution's disclosure approach, explaining their reasons with reference to CPIA obligations. c. Proposing further categories of material for review. d. Stating their agreement or disagreement with digital material search methods. e. Identifying other third parties with relevant material and address any scheduling issues. f. Agreeing material that does not require examination and search terms to be deployed for any electronic material.

At the plea and trial preparation hearing, in an Intensive Disclosure Regime case, the court should set a date for: a. [Where required] When a revised Disclosure Management Document needs to be provided by the prosecution. b. When the defence should serve their Response to the Disclosure Management Document (RDMD). c. The Disclosure Management Hearing and when parties must submit an agenda in advance setting out areas for judicial guidance and directions.

The Disclosure Management Hearing should be used by the judge, exercising their case management powers, to oversee the following: a. To resolve outstanding issues between prosecution and defence relating to disclosure strategy. b. Agree how the defence will be provided information about and possibly access to disclosure software tools used by the prosecution. c. That the lead Disclosure Counsel, Trial Counsel and the Disclosure Officer should attend the DMH. d. Whether further DMHs are necessary.

I invite the Judicial College to consider specific training on judicial case management of disclosure matters, the Intensive Disclosure Regime, and the use of a new Consolidated Guidance (should these recommendations be accepted).

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. The potential impact of the failings in other cases, where convictions have been recorded, must be considered. Learnings from the failing should be passed to the College of Policing to update learning standards.

Update the CPIA and Code of Practice to allow the prosecution, in a single defendant case, to hand back to a suspect/defendant material (or copies) they previously had access (i.e. they previously owned, held or controlled). There should be no obligation for the prosecution to provide a schedule to the defendant, describing the items in the class of material returned. In considering whether to use this provision, the prosecution should have regard to the following factors: a. The extent to which provision of the class of material may expedite case preparation by the defence and/or prosecution. b. The amount of material involved. c. The ease by which the material may be redacted for sensitive material, LPP or personal confidential information. d. The ability of the suspect/defendant to review the material. e. Whether the suspect/defendant and their legal representation wish to receive the returned material. f. The extent to which the order may affect the timing of trial.

Consolidate the Attorney General's Guidelines and Judicial Protocols into a refined single guidance document referenced in legislation. The Consolidated Guidance should cover: a. The principles that uphold the regime. b. Technical advice for investigators, prosecutors and defence professionals regarding the real-world application of the CPIA, Code and Criminal Procedure Rules. c. The Court disclosure process, including the Intensive Disclosure Regime pathway. d. The roles and responsibilities of all key parties including engagement expectation and judicial case management. e. Annex — Regional Judicial Practice Notes on Disclosure. Investigators, prosecutors and defence professionals are to have regard to guidance throughout the course of the criminal case. In determining a disclosure issue, the court must consider whether the Consolidated Guidance, which was issued at the time, has been followed.

A central GOV.UK depository webpage be created with links to the following: a. Criminal Procedure and Investigations Act. b. Code of Practice. c. Criminal Procedure Rules. d. [New] Consolidated Guidance. That the Government archive GOV.UK links to outdated versions of the Code and Attorney General's Guidelines, that are still accessible.

Highlight in Consolidated Guidance, that where there is a disclosure failing by prosecution or defence, it is open to the Judge to require that the relevant legal representative, officer and/or legal aid contract manager, provide further explanation to the court either in writing or in person at a future mention.

The Ministry of Justice and the Criminal Legal Aid Advisory Board should consider whether current funding arrangements adequately support early engagement with the disclosure process and engagement with a new intensive disclosure regime. The application process for pre-charge engagement legal aid should be streamlined.

Establish a Disclosure Scrutiny Joint Committee, made up of representatives from the Home Office, Ministry of Justice, and Attorney General's Office, to monitor implementation of new disclosure policies.

There needs to be an improvement in the quality and type of data available regarding the performance of the disclosure regime in all parts of the criminal justice system. Additional data gathered should include but not be limited to: a. Law enforcement disclosure training compliance in reference to training and learning recommendations. b. Broad reasons for adjournments in both the magistrates' and Crown Court. c. Time and motion studies regarding law enforcement time spent undertaking disclosure in its various phases and a commitment to repeat the process after a set number of years. d. Quantitative assessments of IDR case progression.

Appoint an individual responsible for oversight of the implementation of policy change, keeping under regular review the application of the disclosure regime in the criminal justice system, recommending any reforms which need to be made, and reviewing the quality of disclosure-related learning delivered by higher education institutes, law enforcement agencies and police forces.

The Law Commission's recommendation at paras 4.104 and 4.106 of its confiscation report should be reflected in the Consolidated Guidance. I invite the Criminal Procedure Rules to consider if, following receipt of the defence response to the statement of information under section 17 of POCA 2002, the prosecution should review disclosure and update the defence about the outcome of that new review.