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On 26 May 2022, the Attorney General published its revised Guidelines on Disclosure 2022 (the "Revised Guidelines") following its annual disclosure review (the "Disclosure Review"). The Revised Guidelines will come into effect on 25 July 2022 and detail the overarching principles for investigators, prosecutors and defence practitioners when carrying out disclosure in criminal cases. The Revised Guidelines have been updated to capture key Disclosure Review findings including, among others, the need for greater defence engagement with investigators and prosecutors throughout the disclosure process during the investigation and trial, and the use of technology in complex economic crime cases. In this blog post we discuss certain aspects of the Revised Guidelines and the practical implications these might have for corporates and individuals facing a criminal prosecution.
In brief, prosecution disclosure concerns the obligation on prosecutors to disclose to the defence all material in their possession that is either (i) evidence served as part of the prosecution case or (ii) material that is not evidence but nonetheless falls to be disclosed because it is capable of undermining the prosecution case or assisting the defence case (known as “unused material”). Disclosure is described as one of the most important and complex issues in the criminal justice system, and it is a priority for the UK Government to encourage improvements in disclosure practice to ensure the disclosure regime operates effectively, fairly and justly.
Where the disclosure regime does not operate effectively and fairly, this can result in miscarriages of justice, convictions being quashed and trials collapsing. For example, in the Serious Fraud Office (“SFO”) case against former Unaoil executive Ziad Akle, the Court of Appeal were satisfied that the SFO’s disclosure failures had significantly handicapped the defence in arguing certain aspects of its case. This finding, among others, resulted in the Court of Appeal quashing Akle’s conviction for paying over $500,000 in bribes to secure a $55m contract to supply offshore mooring buoys.
The Disclosure Review comprised certain qualitative assessments, such as meetings with key stakeholders and written submissions to pre-set questions, to assess the functional operation of the Attorney General's Disclosure Guidelines 2020. The themes emerging from the qualitative analysis included the need for greater defence engagement at the beginning and throughout the disclosure process and the use of technology to support the disclosure process, especially in complex economic crime cases where there are large amounts of digital information.
However, the Disclosure Review cautioned that technology alone could not be expected to solve all disclosure issues (such as potential exculpatory material not being identified and disclosed to the defence). Instead, using technology should be coupled with the defence highlighting at an early stage: (i) what the defence case is and (ii) if there are any issues with the prosecution case as stated. This is to assist the investigator to identify likely areas of disclosure and the prosecutor with understanding the issues in the case so that material that is capable of undermining the prosecution case or assisting the defence case can be correctly identified. The Revised Guidelines reflect this recommendation by amending the language throughout the document to emphasise that without defence engagement "the accuracy of disclosure can be compromised".
Under the Revised Guidelines, the criminal courts are likely to expect greater engagement from defendant companies and individuals on disclosure at an earlier stage (rather than necessarily waiting for the Defence Statement to be served) and throughout complex economic crimes cases.
In terms of using technology to assist the disclosure process, there are already reports of the SFO outsourcing document review to a legal technology company for the purpose of disclosure. Other enforcement agencies may adopt a similar practice, given the Disclosure Review has made clear that the scale or complexity of the disclosure exercise cannot be seen in any way to excuse a failure to meet statutory disclosure obligations.
16 June 2022
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