Disclosure is one of the biggest barriers for the Serious Fraud Office to overcome in its pursuit of fraud and corruption convictions.
Mark Cotter KC writes in the FT Adviser, published on 28 September 2022.
Director Lisa Osofsky’s recent speech referencing the huge challenges inherent in ensuring proper disclosure point to a problem that will not go away.
She might fervently wish it would, given the collapse of the Serco case and the overturning of the Unaoil convictions by the Court of Appeal. Disclosure failures were the cause in both instances. Unaoil’s was an especially shocking loss as the Court of Appeal refused a re-trial, partially thanks to the conduct of the SFO that led to the appeal.
Disclosure demands that prosecutors and investigators keep a list of all material coming into their possession that is relevant to the investigation but is not being relied upon as evidence.
That list (excluding any sensitive material) must be given to the defence, as well as copies of any material on the list that undermines the prosecution case or may reasonably assist the defence case.
The detailed reports that followed each case set out the different ways in which the SFO had failed its disclosure obligations.
In 1996, the Criminal Procedure and Investigations Act inaugurated the current disclosure scheme. At that time internet and email services were in their infancy and Nokia, the number one mobile phone provider, was lucky to hold a few texts and your last 10 dialled numbers.
Today’s technology delivers many millions of units of data to our homes daily from emails to documents to photographs. Criminal investigators, exemplified by the SFO, are now expected to set aside time and manpower to assess whether the documents ensuing from these data items require revelation to the defence.
Even the advent of AI and other revolutionary tools has not prevented this being a mammoth task paid for by the public.
The period since 1996 has seen sporadic but focused guidance on how disclosure can be achieved and managed in a digital world from the Court of Appeal, the Crown Prosecution Service and the Attorney General. July 25 2022 saw the most recent in the form of the revised Attorney General's Guidelines on Disclosure.
Osofsky’s claim therefore that the "framework was designed before the advent of mass digital media", fails to take these new measures into account, albeit that these added measures have not helped the SFO to get it right. Let’s highlight a couple of examples.
It was highly questionable that they had engaged the services of a fixer at all.
The Serco case was stopped by the trial judge for failures relating to the disclosure process. The SFO then requested an adjournment to put things right. The judge duly refused, which meant that the prosecution was unable to proceed having failed to comply with their disclosure obligations. The collapse of the case necessitated a not guilty verdict being entered.
The case of Unaoil differed in that guilty verdicts had already been achieved by the time it came to light that the SFO had been dealing with a so-called fixer. The SFO had failed to disclose relevant elements of those dealings to the defence, as was their obligation. It was highly questionable that they had engaged the services of a fixer at all.
Independent reviews took place for both Serco and Unaoil and the detailed reports that followed each set out the different ways in which the SFO had failed its disclosure obligations.
In the case of Serco, the report’s recommendations revolve around the mechanics of the disclosure review process. It emphasises the need for the best people to be recruited to conduct these document reviews and that they be appropriately recompensed, all at public expense.
Tensions within the different arms of the SFO was found to be pivotal in the failures of Unaoil.
They have to be properly trained and supported and, crucially, given the time required to carry out the requisite methodologies and assurance reviews that produce a high level of standardised work across the caseload. Regular audits and greater use of IT are also required.
The Unaoil report, by way of contrast, focuses on the tri-partite relationship between the management of the SFO, its investigatory arm and its prosecutorial arm. These functions combine to produce a unique prosecutorial authority in the SFO.
Whereas in standard cases the police investigate and the CPS prosecutes, the SFO has the power to do both. Tensions within the different arms of the organisation with their singular cultures, imperatives and objectives was found to be pivotal in the failures of Unaoil.
In stating that a human error which is capable of correction can be used by the defence to mount tactical challenges, Osofsky utilised the collapse of the Serco trial as an example. This rather simplifies the matter, if the 27 recommendations for improvements cited in the two independent reports are anything to go by.
Mark Cotter KC is a specialist criminal barrister who assists individuals and businesses facing serious or complex criminal investigations.
