E-disclosure: New Review of Disclosure in Criminal Proceedings

September 12, 2011

Commissioned by the Lord Chief Justice, the Review of Disclosure in Criminal Proceedings by the Rt Hon Lord Justice Gross was published on 13 September. The Review considers a number of issues that will be of interest to e-disclosure specialists: http://tinyurl.com/5seg5kj

The Review includes positive comments about the practice in relation to disclosure in civil proceedings but highlights the very real differences that apply in the criminal field: the absence of a ‘proportionality’ element in the overriding objective and the fact that both parties in civil proceedings are usually privately funded so that market pressures apply. The Review also looked hard at the lessons to be learned from other jurisdictions, especially the USA.

As to technology generally, the Review concludes as follows: 

Technological advance and the explosion of electronic materials are facts of life in criminal as well as civil proceedings. As foreshadowed, the problem posed by vast quantities of electronic materials is likely to get worse rather than better; it cannot be wished away. Against the background of this avalanche of materials, real effort is required, so that criminal cases can continue to be dealt with fairly, efficiently and expeditiously – in accordance with the overriding objective: see, rule 1.1(2) (b) and (e) of the Rules. From the various materials already summarised, we would seek to distil the following thoughts.


First, in a good many cases it needs to be recognised that it is likely to be physically impossible or wholly impractical to read every document on every computer seized. It follows that there can be nothing objectionable to search enormous volumes of material by the use of sampling, key words or other appropriate search tools; indeed, there is no other way and full use should be made of such tools. The Guidelines and, more especially, the 2011 Guidelines deal in terms with such an approach, in a manner not at all dissimilar from that found in respect of civil proceedings, in PD31B and the ACC Guide (set out above). In R v Brendon Pearson, Paul Martin Cadman [2006] EWCA Crim 3366, complaint was made that the Crown had failed to comply with its duty of disclosure in relation to records contained on computers which had been seized from the business under investigation. The police had not read every record contained on the computers. The complaint was rejected. Giving the judgment of the Court, in, with respect, telling observations, Hughes LJ said this:

“20. In the course of evidence given during the trial on a voir dire, a computer expert instructed on behalf of the appellant,

when asked how long it would take to read all the computer material that the police had seized, said that it would take a lifetime or more. If the submission is made that it was the duty of the Crown to trawl through every word or byte of this material in order to see whether any of it was capable of undermining the Crown’s case or assisting that of the appellant, we do not agree… Where there is an enormous volume of material, as there was here, it is perfectly proper for the Crown to search it by sample or, as here, by key words…”

Hughes LJ went on to add (at [22], in effect anticipating the 2011 Guidelines) that where sampling of voluminous material was undertaken:

“…it is the more important that it be explained exactly how it has been done and what has not been disclosed as a result.”

Secondly, the importance of identifying the issues and of the parties cooperating in the exercise is all the more vital in cases with vast quantities of electronic materials. Such cooperation is encouraged by the 2011 Guidelines, specifically at para. 44. Likewise, the detailed requirements of the ACC Guide as to discussions which should precede the first CMC are instructive and, for our part, repay study in the context of criminal proceedings. The task of the Crown in developing a framework for computer searches, in the absence of responsible cooperation from the defence, should not be under-estimated. Here, the Court can (and generally should) give a clear steer as to what is expected from all parties – and, it may be suggested, should generally give short shrift to any party not engaging appropriately.

Thirdly and mindful of the US experience, it may be that appropriate use of out-sourcing (certainly in the future) could prove useful in reducing cost, though out-sourcing should not be allowed to obscure the need to maintain control of the exercise, with a view to searches being reasonable and proportionate.

Fourthly and again with the US experience in mind, the management of electronic material requires careful attention, in particular with reference to the format of the material supplied.