Disclosure's Black Box: When Decisions Disappear Into The System

For decades, disclosure disputes have revolved around a familiar question: What did the prosecution miss? The Government's recent plans to modernise the criminal disclosure regime suggest that we may soon be asking a different one: What made the system decide it was irrelevant?

The plans follow Jonathan Fisher KC's review of disclosure in the digital age and reflect a reality few criminal practitioners would dispute. A disclosure regime built before smartphones, cloud storage, and the proliferation of digital material is struggling to cope with the realities of modern criminal investigations.

The legal test has not changed. The practical challenges have.

Prosecutors must still review material, determine what supports their case, identify material that may undermine it or assist the defence, and properly schedule and describe unused material. But those tasks are now performed across datasets that may contain millions of records drawn from phones, email accounts, messaging platforms