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15 Jan 2018

Jessica Parker comments on UK fraud hitting a 15-year high in Bloomberg and Insurance Journal

UK fraud reports hit 15-year high as evidence work delays cops

Fraud in the UK rose to 2.1 billion pounds ($2.9 billion), the most in 15 years, as the police commander in charge of fighting the crime said the amount of evidence was setting back investigations.

David Clark, the police officer who heads the UK’s anti-fraud response, last week told lawmakers that an overload of documentary evidence was setting investigations back.

Jessica Parker, Partner at Corker Binning, commented:

“David Clark’s comments, and recent rape cases in which prosecutions have collapsed because of the late disclosure of digital material, highlight a problem of large volumes of data faced by investigators and prosecutors.   The problem is pervasive and will only be resolved by resources and transparency starting at the very outset of an investigation right through to trial.

“The problems begin at the start of an investigation.  Digital devices must be forensically imaged before inspection by an investigator to avoid any of the data being altered by the reviewing officer.  There are insufficient resources nationwide to perform this function causing delays in the imaging process. In cases where electronic devices are seized, suspects are told that the images will be available for the investigator to review in anything from a few weeks to six or more months.  This is as unwelcome to the investigator as it is the suspect.

“Where an electronic device is seized, the CPIA and guidance under it does not require examination of all data on the device. The 2011 Supplementary Guidelines on Digitally Stored Material suggest how the task of meaningfully scheduling its contents should be managed. Because of the impossibility of scheduling every meaningful item of data a strategy is needed by which the useful data can be located, reviewed and shared. The Supplementary Guidelines proposes, by way of example, that an investigator could use search terms, which should then be shared with the suspect. In practice, this guidance is inconsistently applied and there is no uniformity between police areas and investigative agencies.

“The Court of Appeal examined the issue of electronic disclosure in the HMRC case of R v R [2015] EWCA.  In this case, 77 electronic devices were seized resulting in the retention of seven terrabytes (approximately 600 million pages) of data. There was no prospect that their contents could ever reasonably be reviewed, and the defence and prosecution had spent the best part of four years grappling with the most appropriate way to achieve fair disclosure before the case was stayed by the trial judge in 2015.   The Court of Appeal confirmed that it was right that not all material in the hands of the prosecutor need be reviewed, and there could not be a ‘one size fits all’ method of approaching the disclosure task in each case.

“The COA also underlined the need for defence engagement.  If the investigator, and then prosecutor, is not going to review all the material in their possession, the defendant must be in a position to understand what has been searched for so that meaningful suggestions for searches which will assist their defence can be proposed.  Such engagement can only take place with transparency and a clear understanding of what approach the investigator and prosecutor have taken.

“The special challenge of ensuring the system of disclosure is fair and proportionate when liberty is at stake cannot be underestimated. Different types of cases, from rape to fraud, and different types of data, from text messages to spreadsheets, will require differing methods of interrogation and review.   This challenge must be met by investigators being provided with sufficient resources to conduct their task quickly and efficiently, and defence practitioners being provided with sufficient information in order to understand what has and what has not been looked for and reviewed.”

Read the full article in Bloomberg here, and was also syndicated in Insurance Journal here