Disclosure in the Digital Age – Reforming the System for a New Era of Digital Complexity
Introduction
As digital technology becomes increasingly embedded in every aspect of life, the UK's criminal justice system faces growing challenges in managing the vast amounts of digital evidence emerging in modern investigations. Nowhere is this more apparent than in fraud offences, which are becoming more sophisticated, data-heavy, and international in scope. In response to these issues, the UK government commissioned Jonathan Fisher KC to lead a comprehensive review of current disclosure laws, resulting in the report Disclosure in the Digital Age: Independent Review of Disclosure and Fraud Offences. The report offers key insights and recommendations on how to modernise the legal framework to make it fit for a digital-first world.
The Growing Complexity of Digital Evidence
Advances in technology have significantly altered the way crime is committed and investigated. While these developments potentially enable authorities to uncover fraudulent activity more effectively, they also generate immense volumes of digital material that must be reviewed, assessed, and, where appropriate, disclosed to the defence. This has placed substantial pressure on the existing disclosure system, whose primary legal instrument, the Criminal Procedure and Investigations Act 1996 (CPIA), was not designed with today's digital landscape in mind.
Fisher’s review highlights how current legislation struggles to keep up with the demands of digital disclosure, especially in fraud trials that may involve millions of files spanning multiple devices and platforms. The result is a growing disconnect between the legal obligations of disclosure and the technological realities investigators and prosecutors face.
Why Reform is Needed
Disclosure rules in the UK have historically evolved in response to high-profile miscarriages of justice or trial failures. Over time, this has led to a dense patchwork of supplementary guidance and procedures. According to Fisher, this has created a confusing and burdensome system, where even experienced legal professionals and police officers are often unsure how to proceed.
In his report, Fisher notes: “Some [professionals] are overwhelmed by the plethora of guidance and preferred to ask a colleague for disclosure advice instead.” This complexity not only hampers the efficiency of the legal process but also poses risks to fairness and justice.
Recommendations from the Fisher Review
To address these challenges, Fisher sets out a number of targeted recommendations designed to streamline disclosure and improve the overall integrity of the justice system. These include:
Improving Communication: Encouraging better co-operation between the prosecution and defence, as well as across different police forces, to reduce miscommunication and delays in sharing key information.
Enhancing Technological Literacy: Promoting a stronger understanding of digital systems amongst police officers, prosecutors and defence lawyers, so they can more effectively handle electronically stored information.
Standardising Disclosure Practices: Clarifying the standards for what must be disclosed under the CPIA, helping ensure consistency and reducing the risk of over-disclosure or omission.
Reviewing Data Protection Legislation: Amending current laws to allow necessary material to be disclosed without excessive redaction, while still maintaining privacy and security.
Introducing New Procedural Tools: Implementing mechanisms such as an Intensive Disclosure Regime for especially document-heavy cases and Disclosure Management Hearings, where judges can pre-emptively resolve disputes over disclosure responsibilities.
Looking Ahead: Part Two of the Review
The second part of the review, expected later this year, is likely to explore broader systemic reforms and policy changes. One key area of interest is the introduction of a formalised whistleblower reward scheme. Currently, the UK offers little in the way of financial incentive or protection for individuals who report serious fraud, including tax evasion and corporate wrongdoing.
Fisher’s review may recommend that the UK should follow models used in the United States, where whistleblowers can receive substantial rewards for providing actionable intelligence. If implemented, this would represent a major shift in how the UK tackles fraud and could significantly enhance enforcement capabilities. The Treasury is already piloting such a scheme.
Rethinking the Role of Juries in Fraud Trials
Another controversial—but increasingly discussed—reform would involve the removal of juries from complex fraud trials. Such cases often take many weeks or even months to complete, placing significant burdens not only on jurors themselves, but also on employers and the economy. The arguments presented and the technical nature of the evidence are often dense and difficult to follow, even for the most sophisticated jurors. Some argue that shifting such trials to specialist tribunals or judges with fraud-specific expertise. While this would mark a radical departure from centuries-old legal traditions in the UK, it could result in faster, more consistent, and fairer verdicts in highly technical cases.
Conclusion
The Disclosure in the Digital Age report marks a crucial turning point in how the UK approaches the investigation and prosecution of fraud in an increasingly digital world. Fisher KC’s proposals aim to address the root causes of inefficiency and imbalance in the disclosure process, while also preparing the legal system for future challenges.
By modernising disclosure procedures, promoting cross-sector cooperation, and considering bold innovations like whistleblower incentives and specialist fraud courts, the review sets the stage for a more responsive and effective justice system. However, the ultimate success of these reforms will depend on their implementation—and the willingness of government and legal institutions to embrace change.
As the second part of the review approaches, it presents an opportunity to solidify these recommendations and take decisive steps toward ensuring fairness, transparency, and accountability in an age where fraud is more complex—and more digital—than ever before.
To learn more about how these proposed reforms could impact your organisation—or to discuss how to navigate the evolving landscape of digital evidence and fraud—please get in touch with our team.
This article is intended for information purposes only and provides a general overview of the relevant legal topic. It does not constitute legal advice and should not be relied upon as such. While we strive for accuracy, the law is subject to change, and we cannot guarantee that the information is current or applicable to specific circumstances. Costigan King accepts no liability for any reliance placed on this material. For further details concerning the subject of the article or for specific advice, please contact a member of our team.
Archie Berens
Commercial Specialist
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