Fisher Review (Part 1)

Government response 1. The Government agrees with the objective of this recommendation: as the criminal justice system adopts advanced technology to support material management and disclosure, this must be done in a way that commands confidence across all participants, protects fair trial rights, and delivers value for money. 2. Achieving that objective requires robust scrutiny of both tools and processes to ensure they are safe, effective and secure. Tools alone will not suffice; they must be supported by the right governance, skills and training so they are configured and operated competently. 3. We therefore agree to take forward recommendation 1, with modifications to avoid duplicating existing governance and to ensure the right bodies are involved. In line with the Review’s emphasis on cross-system confidence, our first step will be to map the current groups and forums across the criminal justice system, identifying where functions already exist and where gaps remain. 4. To deliver the intended benefits while avoiding duplication, we consider a single forum, with two membership groups, to be most effective model. 5. Strategic operational group (cross agency). A version of this forum for law enforcement and other operational stakeholders, providing a structured space for internal operational discussions on emerging tools and capabilities. Its remit will include horizon scanning; standards for deployment and configuration; operational learning; identification of common requirements across forces and agencies; and consistent approaches to assessing performance, security and value for money. It will also coordinate skills and training needs across organisations. 6. Engagement group across the Criminal Justice System. A version of this forum bringing together law enforcement and prosecutors with judicial and defence representatives. Recognising that disclosure technology engages core trial safeguards, this will promote transparency and a shared understanding of how tools are used (generally and, where appropriate, in specific contexts), support confidence in the integrity of processes, and help ensure the right to a fair trial is upheld as technology evolves. 7. Collectively, this forum will address this recommendation’s subpoints (a)–(e): surveying available tools and functionality; agreeing metrics for accuracy, security and value for money; defining skills and training requirements; building confidence across partners; and establishing a regular review cycle. 8. Proposals on terms of reference, membership and reporting lines will be brought forward following the initial mapping exercise. The criminal justice engagement group terms of reference will be agreed with the senior judiciary to safeguard judicial independence. 9. In seeking to establish this forum, we will also consider the criminal justice system governance proposals from the Independent Review of Criminal Courts, to ensure that development of new groups and structures are effective and coherent.

Government response 38. The Government supports the objective of these recommendations. In cases involving large volumes of digital material, the manual preparation of schedule entries can impose a substantial administrative burden and divert resource away from effective case progression and “thinking” disclosure. The quality of current schedules can also vary significantly between agency and force.7 39. Consistent with the Government’s commitment in the Police Reform White Paper, we will use technology to reduce bureaucracy and support the efficient handling of material where it is safe and appropriate to do so. Our intention is to enable technology to assist investigators, disclosure officers and prosecutors in producing accurate, timely and informative schedules, so that professional time and expertise can be focused on analysis, relevance, and disclosure decisions rather than manual transcription. 40. We will therefore take forward recommendation 8 (and recommendation 84 of the Independent Review of the Criminal Courts8) with modifications. Specifically, we will work with law enforcement agencies and prosecutors to develop a technology‑assisted approach to schedule creation on a piloted and phased basis. This will ensure that any tools introduced operate under appropriate human oversight, support rather than replace professional judgment, and are validated in operational conditions to ensure outputs are accurate, consistent and fit for purpose before any wider adoption. 41. As with earlier recommendations regarding the use of technology, implementation of these proposals will be supported by robust governance and oversight (recommendation 1); and guidance (recommendation 2).

Government response 46. The Government supports the objective of this recommendation, which seeks to reduce the pre‑charge scheduling burden in cases where a guilty plea is anticipated, including indictable‑only cases. The intention is to ensure that disclosure activity at the pre‑charge stage is proportionate and targeted, while maintaining fairness and ensuring that disclosure obligations are not compromised. Any streamlined approach would operate only where it is appropriate to do so and subject to prosecutor agreement. 47. The Government recognises that the current approach can require the preparation of full unused material schedules at an early stage in cases that are unlikely to be contested. Taking this recommendation forward has the potential to reduce unnecessary duplication of work, better prioritise investigative and prosecutorial resources, and support the efficient progression of serious cases through the criminal justice system, without detracting from the rights of defendants or the integrity of proceedings. 48. We therefore commit to taking this recommendation forward through the most effective mechanism. This will likely include amendment to the Criminal Procedure and Investigations Act 1996 Code of Practice and/or the relevant guidance. Any changes will include appropriate safeguards to ensure that, where a defendant subsequently changes their indication of plea and enters a not‑guilty plea, full scheduling will take place at the appropriate stage and disclosure duties will be fully complied with.

Government response 49. The Government supports the intention of these recommendations, which is to significantly reduce the time police spend redacting casefiles before they are submitted to the Crown Prosecution Service (CPS) for a charging decision. The Government also recognises the importance of law enforcement having clarity over the redaction they are required to perform throughout the disclosure process. 50. Any criminal justice process must ensure personal data is handled appropriately and lawfully, maintaining victim and witness confidence and public trust. However, we also recognise the administrative burden that pre-charge redaction creates, and the government has given extensive consideration to how to reduce this through both legislative and non-legislative means. A ‘data bubble’, enabling law enforcement to share unredacted data with the CPS for the purposes of a charging decision, would require significant and unprecedented changes to the legislative framework, including significant amendment to the Data Protection Act 2018 (DPA), Human Rights Act 1998 (HRA) and common law (specifically the tort of misuse of private information and the duty of confidentiality). 51. The current approach to casefile redaction (including rebuttable presumption material) is governed by the Attorney General’s Guidelines (AGG) and the Director’s Guidance on Charging (6th edition) (DG6), which frontload casefile preparation in the interests of timeliness, in readiness for onward sharing with the court and defence. The NPCC and CPS have already carried out extensive work to develop and issue simplified guidance and crib-sheets to aid officers when redacting casefiles, in line with the CPS National Police Chiefs’ Council Joint Principles for Redaction. 52. Changing the current approach, with the aim of reducing the ‘frontloaded’ effort, would necessitate changes to the AGG, DG6 and consequential amendments to the joint principles for redaction. It would also entail a revised process, with implications for roles, resourcing and IT systems. 53. We have therefore engaged CPS, AGO and NPCC in a programme of work focused on practical solutions that will make a tangible difference. This includes: a. AI-enabled automation: technology is key to reducing the burden, and we are working with policing to support their adoption of AI enabled redaction technology. The majority of forces now have AI enabled text redaction tools and we are now supporting forces to adopt audio visual multi media (AVMM) redaction technology in the most efficient way. b. Process change: We have engaged partners in a discovery exercise, commissioned through the Home Office’s Accelerated Capabilities Environment (ACE), to explore options for a more efficient process, with the aim of reducing 'wasted' redaction effort. Subject to the outcome of this work, and should the NPCC and CPS agree to implement a revised process, they would need to amend the ’Joint Principles’, and new guidance would need to be issued. It would not be for the ICO to issue such guidance, though operational partners may wish to consult them where appropriate. c. Proportionate disclosure: through casefile analysis we have established that a large part of the redaction burden is driven by the ‘rebuttable presumption’, and we have collaborated with operational partners to pilot a more proportionate approach (see following response to recommendation 81 from Sir Brian Leveson’s Review).

Government response 59. The Government recognises that criminal investigations in England and Wales are undertaken by a range of bodies beyond the police, including regulators, local authorities, charities, commercial organisations and private investigators. Where such investigations give rise to criminal proceedings, whether prosecuted by the Crown Prosecution Service or by way of private prosecution, the fairness of the process depends on the quality, completeness and integrity of the investigative material, including the identification and handling of unused and disclosable material. 60. While the Code of Practice issued under the Criminal Procedure and Investigations Act 1996 formally applies to police officers, its principles set an important benchmark for good investigative and disclosure practice. In cases investigated outside policing, failures to meet equivalent standards can undermine confidence in prosecutions and risk unfairness to defendants. 61. The Government notes that positive steps have been taken within parts of the private investigation sector to raise professional standards, including through the development of the Association of British Investigators Code of Conduct. We will continue to consider whether there is a case for further regulation under the Private Security Industry Act 2001, taking care to ensure that any approach is proportionate and does not unduly restrict legitimate activity. 62. In relation to this recommendation, the Government accepts its intent and will keep the issue under consideration. This work will feed into the Government’s wider assessment of private prosecutions which is already examining safeguards, standards and oversight in this area. We will continue to monitor the quality of criminal investigations and subsequent prosecutions undertaken outside policing, including whether there is value in extending existing expectations or safeguards, as part of wider reforms, with the aim of ensuring that prosecutions brought in England and Wales are consistently fair and of high quality.

Government response 68. The Government agrees with the intent of Recommendations 17 and 18. We recognise that disclosure practice and processes will continue to evolve over time, including changes in how disclosure duties are discharged, and that minimum learning standards must remain current. We will therefore support, utilising insight from the College of Policing, periodic review and refresh of the agreed Bronze and Silver minimum standards, to ensure the products reflect current law, policy, guidance and operational practice, and do not embed outdated approaches. 69. Responsibility would remain with individual law enforcement agencies to determine how best to ensure officers and staff are aware of any updates and undertake refresher learning when required, taking account of role, experience and operational context rather than mandating uniform refresh cycles. 70. Alongside this, the Government agrees that the quality of delivery of disclosure learning is critical to ensuring that agreed standards translate into effective practice and behavioural change. We therefore support strengthened quality assurance of training delivered by the College of Policing, higher education institutions and other delivery partners, with findings shared with the National Police Chiefs’ Council to support continuous improvement, the sharing of best practice, and early identification of where delivery does not meet expected standards.

Government response 68. The Government agrees with the intent of Recommendations 17 and 18. We recognise that disclosure practice and processes will continue to evolve over time, including changes in how disclosure duties are discharged, and that minimum learning standards must remain current. We will therefore support, utilising insight from the College of Policing, periodic review and refresh of the agreed Bronze and Silver minimum standards, to ensure the products reflect current law, policy, guidance and operational practice, and do not embed outdated approaches. 69. Responsibility would remain with individual law enforcement agencies to determine how best to ensure officers and staff are aware of any updates and undertake refresher learning when required, taking account of role, experience and operational context rather than mandating uniform refresh cycles. 70. Alongside this, the Government agrees that the quality of delivery of disclosure learning is critical to ensuring that agreed standards translate into effective practice and behavioural change. We therefore support strengthened quality assurance of training delivered by the College of Policing, higher education institutions and other delivery partners, with findings shared with the National Police Chiefs’ Council to support continuous improvement, the sharing of best practice, and early identification of where delivery does not meet expected standards.

Government response 100. The Government accepts the recommendation in principle, recognising the value of Disclosure Management Documents (DMDs) in supporting effective and proportionate disclosure in complex Crown Court cases. Existing guidance already makes DMDs mandatory in CPS Crown Court cases and their use is routine within the Serious Fraud Office (SFO). However, further consideration is required before confirming or extending requirements. 101. In particular, the Government will consider whether there is a demonstrable gap that requires formal confirmation of the existing position, and the most appropriate vehicle for doing so. Any change should be evidence‑based and proportionate; elected Crown Court cases should remain out of scope unless other complex criteria are met, reflecting current police practice and avoiding disproportionate operational burden. 102. The Government also agrees in principle with extending the information provided within DMDs, building on existing templates in the Attorney General’s Guidelines. However, the detailed requirements proposed would need to be refined and applied flexibly, ensuring that only information relevant to the specific case is mandatory and that the framework remains agile. 103. Concerns raised by operational partners regarding personal certification of technology use are noted. Any transparency around the use of technology should be framed through reference to organisational wide assurance processes, rather than individual officer certification. 104. Further work will be undertaken with criminal justice partners to determine the scope, content and implementation of any changes, ensuring they support effective disclosure without creating unnecessary burden. 105. Implementation of this recommendation may require changes to the Criminal Procedure Rules. If this is the case once the Government has considered this further, it will invite the Criminal Procedure Rule Committee to consider this recommendation.

Government response 116. The Government supports the intent of recommendation 28, recognising the challenges faced by officers in identifying and scheduling relevant material in summary‑only magistrates’ court cases. We agree that investigators would benefit from clearer, more consistent support and guidance. 117. However, we do not propose embedding this guidance within the existing MG6 forms, as these will be retired with the introduction of the Digital Case File system. Instead, we will take forward the intent of the recommendation through alternative routes, including the development of supporting guidance in the short term and exploring how the functionality of the Digital Case File can provide structured prompts and assistance to officers in future.

Government response 26. The Government does not accept the recommendation to consolidate the Attorney General’s Guidelines on Disclosure and Judicial Protocols into a refined single document referenced in legislation. 27. The Attorney General’s Guidelines on Disclosure is guidance for prosecutors, investigators and defence practitioners on the application of the disclosure regime established by the Criminal Procedure and Investigations Act 1996. Any guidance issued by the Judiciary, by contrast, will relate to practical applications by the court. These documents service distinct functions and consolidation may cut across issues of independence. Stakeholders have also noted that consolidating guidance could make it more difficult to agree and implement timely amendments. 28. Whilst not advocating for consolidation of guidance that serves different purposes into a single document, we recognise the concern underpinning the recommendation. As recommended, there are clear benefits to consolidating the guidance in one place, particularly in promoting consistency, ease of use and alignment across investigators and prosecutors. 29. To address this, the Government will develop a central GOV.UK depository webpage bringing together links to the key statutory framework and guidance on disclosure. Clear labelling will be used to ensure current versions of guidance are readily identifiable, including the Criminal Procedure and Investigations Act (CPIA), the CPIA Code of Practice, the Criminal Procedure Rules and the Attorney General’s Guidelines on Disclosure. A central ‘landing pad’ will make navigation simpler, improve practitioner engagement with the current disclosure legislative regime, ensure there is one place for this information and improve the current digital framework by reducing the reliance on outdated or duplicated copies of guidance.