The Serious Fraud Office (SFO) has recently launched a review into its use of e-discovery software. This review raises crucial questions for prosecutors: Is this a wake-up call highlighting the limitations of technology, or does it underscore the need for prosecutors to better understand and leverage these tools to meet their legal obligations?
Understanding e-discovery and its Role in Legal Investigations
E-discovery refers to the use of specialised technology which seeks to manage and analyse vast amounts of digital data. For organisations like the SFO, it is an essential tool in handling large volumes of documents during criminal investigations and prosecutions. Running key word search terms across the digital universe of documents, e-discovery platforms assist investigators and legal teams to sift through the material, identifying relevant documents while filtering out irrelevant ones.
The SFO is tasked with processing vast quantities of digital information, due to its legal obligation to disclose all relevant material to the defence in serious complex criminal cases. With the help of e-discovery, the SFO should be able to efficiently manage digital evidence and remain compliant with its disclosure requirements under the Criminal Procedure and Investigations Act 1996 (CPIA).
The SFO’s Review: A Glimpse into the Limitations of Technology
The SFO’s recent review into its use of e-discovery has revealed issues in how search terms were constructed which, in some cases, led to relevant documents being overlooked. This issue has prompted a broader examination of whether certain prosecutions were impacted by the failure to identify all relevant material and, in turn, disclosable material.
Within the CPIA Code of Practice, relevant material is defined as anything that appears to an investigator, or the officer in charge of an investigation or the disclosure officer, to have some bearing on any offence under investigation or any person being investigated or on the surrounding circumstances, unless it is incapable of having any impact on the case. This is separate from the subsequent disclosure obligations imposed upon a prosecutor.
As of February 2025, the SFO has reported that it has not yet found any material from its review that undermines the safety of ongoing prosecutions. Nevertheless, the review has uncovered instances where further investigation is needed to determine if any cases have been affected. In some instances, it may be necessary to re-run search terms to ensure that no critical information has been missed. The SFO are currently prioritising cases where defendants are serving custodial sentence.
A Lesson for Prosecutors: A Good Craftsman Never Blames His Tools
While the SFO’s review may seem like a “wake-up call,” it’s more accurately a reminder of a recurring lesson: technology is only as effective as the people using it.
The challenge for prosecutors is not to rely blindly on e-discovery software but to understand how it works and how best to use it. Prosecutors need to be proactive in ensuring that the technology is harnessed to its full potential, preventing relevant material from slipping through the cracks and ensuring legal obligations are met.
The limitations of technology, as highlighted by the SFO’s review, are not a reason to abandon it but rather an opportunity to learn how to use it more effectively. Prosecuting agencies need to invest time and resources in understanding how e-discovery works and how it can be used to enhance their investigations.
Empowering Technology: The Path Forward for Prosecutors
The SFO’s review underscores the importance they have placed on embracing technology within their 5-year growth strategy. The SFO has signalled an intention to harness technology and to be at the forefront of innovation in this area. This is a positive step.
As the SFO continues to refine its use of e-discovery, it will be essential for prosecutors to focus not just on acquiring the right tools but on ensuring that those using it, are using it in the best possible way. It is always the easiest thing to just fall into the old ways of doing things. As the old adage goes a good craftsman never blames his tools, and by that logic, a good investigator should never blame their e-discovery platform.
