SFO improving how it manages disclosure says HMCPSI
A report published today by HMCPSI highlights indicates that the SFO has made progress reforming how it operates its disclosure regime benefiting the criminal justice system and victims of crime, says HMCPSI in a report published today.
HMCPSI has conducted a thematic inspection of the SFO’s ability to deliver its disclosure obligations.
Inspectors compared the SFO’s handling of two high profile cases: the successful Balli Group Companies case in September 2022, and the unsuccessful G4S case in March 2023.
While the majority of SFO cases are successful, the two cases highlighted that there are differing case progression practices and some structural weaknesses that have a significant impact on how the SFO management of disclosure.
Retention of case staff, effective disclosure planning strategy, and engagement with the defence were all identified as being significant to how the SFO fulfils its disclosure obligations.
The inspection found that the SFO used findings from previous reviews and the HMCPSI case progression inspection published last year to identify areas for improvement and act.
SFO has promoted incentives to encourage staff to take on the role of disclosure officers and has introduced changes to both its Operational Handbook and assurance processes.
HMCPSI Chief Inspector Anthony Rogers said: “Disclosure is at the very core of ensuring fairness and effectiveness within the criminal justice system and is essential for maintaining public trust.
“Delivering their disclosure obligations is a significant undertaking for SFO and our inspection shows that while they have had successes, their disclosure regime has also led to some high-profile failures which has caused reputational damage.”
“I am pleased that SFO has already taken action to improve their disclosure regime and is in a better place to deliver the recommendations identified through the Altman and Calvert-Smith reviews for the benefit of the administration of justice and victims of serious financial crime.”
To strengthen their disclosure practices, HMCPSI has suggested that the SFO implement six recommendations:
- By September 2024, the Serious Fraud Office updates the Operational Handbook with guidance in relation to the handling of a Deferred Prosecution Agreement (DPA) and its related material on the prosecutions of individuals in which a DPA has been entered into with the corporate entity.
- By October 2024, the SFO revisits the guidance provided in the Disclosure Management Document template to ensure that it guides the case teams to fully explain the disclosure processes employed and safeguard their position should their disclosure handling be challenged.
- By September 2024, the SFO should introduce a disclosure review process, like a peer review, conducted on every case post-charge by an individual independent of the case team.
- By September 2024, the SFO should consider ways to incentivise staff to take on the roles of Disclosure Officer and Deputy Disclosure Officer to increase the pool of able and experienced candidates and improve staff retention in those roles.
- By October 2024, the government must develop a long-term funding strategy to support the SFO to discharge its disclosure obligations and allow it to compete in the open market to secure enough experience to deal with its cases.
By October 2024, the Serious Fraud Office should review the current model for the management of Legal Professional Privilege (LPP) material. It should consider whether due to risks association with the delivery of core business by the eDiscovery team, a different system for management and control of LPP material should be implemented. The SFO must engage with others who have similar requirements to consider how it might manage and control LPP material.