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Two committees of leading legal experts will support an independent review of a government order to consider potential reforms to disclosure rules and fraud laws following a series of failed white-collar crime investigations in UK courts. do.
Senior barrister Jonathan Fisher KC, who will lead the review, is expected to announce next week the creation of two advisory groups, a Practitioners Committee and a Representatives Committee.
They will carry out a two-stage process, starting with an examination of whether the rules governing discovery in England and Wales are fit for purpose, and then switching to an assessment of whether fraud laws and penalties have kept pace with changes in criminal behavior. We plan to support the investigation.
Fisher said the review of disclosure rules, which govern how unused material in criminal investigations is turned over from prosecutors to defense attorneys, would extend beyond fraud and economic crimes to include other crimes. . He plans to make recommendations to the government by September next year.
“Having a process for dealing with unused materials in an investigation goes to the very core of the integrity of our criminal justice system, one that is fair and appropriate for the prosecution and the defense,” Fisher said.
“We don’t want a situation where there is a miscarriage of justice,” he added. Disclosure has long been an issue, especially in white-collar crimes, and is often cited as a reason for solving cases.
Prosecutors have a duty to disclose material not used as evidence that may aid the defendant’s case. However, in the digital age, with millions of pieces of electronic evidence in existence, this task has become increasingly unmanageable.
Nick Ephgrave, who took over as director of the Serious Fraud Office in September, told the Financial Times the disclosure rules were a waste of resources. “Even if you can review and order all the materials before handing them over, you still have to edit them afterwards, which can be a very time-consuming process,” he said.
Earlier this year, the SFO was forced to abandon its case against former executives of security firm G4S before going to court over spiraling costs and long delays, many of which related to disclosure.
Another high-profile case against former Serco executives was thrown out mid-trial in 2021 after it emerged the SFO withheld key material from the defense.
The debate over disclosure has led some in the legal community to call for a return to the old “key to the warehouse” approach. Before changes in the mid-1990s, defense attorneys could access all unused material to search for themselves.
However, reverting to the old system raises questions regarding defendant costs and invasion of privacy and legal privilege.
The second part of Mr Fisher’s review is the first independent investigation into criminal fraud in almost 30 years, and Mr Fisher’s recommendations are expected to be submitted by February 2025.
The Practitioners’ Committee is comprised of top prosecutors and defense attorneys, as well as former members of the Judiciary Committee, the Director of Public Prosecutions, and other public sector officials. The second panel is comprised of individuals from representative bodies of the legal profession and others working in the criminal justice system.