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UK prosecutors need a standardised approach to artificial intelligence in order to help cut the time it takes to bring criminal cases to court, according to a government-backed review that recommends updating the UK’s disclosure rules.
The rules — which govern what documents prosecuting lawyers in criminal cases must hand over to a defendant’s legal team — have not kept pace with modern technology or criminality, much of which occurs online, the review by Jonathan Fisher KC found.
The report suggested creating a new framework for law enforcement agencies to govern the use of AI to parse documents, potentially cutting the time it takes to bring cases to trial.
But the review stopped short of recommending a US-style system that would give defence lawyers full access to prosecutors’ material, which is sometimes called a “keys to the warehouse” approach.
The current disclosure process that involves both physical and digital documents is often cited as one of the reasons why criminal cases take so long in the UK.
The same technology “that supercharged the proliferation of digital material may well provide, at least in part, a panacea for the difficulties we presently find ourselves in”, Fisher said.
Prosecution failures around disclosure have upended a number of high-profile criminal trials in recent years, and are often cited as a reason justice moves slowly in the UK. The average case handled by economic crime prosecutor the Serious Fraud Office involves about 5mn documents.
The report was the first stage of a two-part review commissioned in 2023 under the Conservative government. The second part of the exercise will look at whether UK fraud laws are fit for purpose.
However, Fisher did not recommend overhauling the disclosure system entirely to introduce a “keys to the warehouse” approach.
Moving to this model would require a significant increase in state spending on criminal justice as well as “a substantial change to our underlying philosophy on justice”, the report added.
Some defence lawyers in the UK have argued that such an approach would act as a check and balance on prosecution material and prevent miscarriages of justice. However, Fisher said that the cost burden of disclosure could in fact put defendants at a disadvantage.
Among the 45 recommendations, Fisher also argued for a “data bubble” between law enforcement and prosecutors so they can share un-redacted information to help with charging decisions, and better training on disclosure to raise standards.
