Implementation Update – May 2023: Altman Review

24 May, 2023 | News Releases

In April 2021, the Director of the Serious Fraud Office (SFO) commissioned Brian Altman KC to conduct a review into our handling of R v Woods & Marshall. The full review and our response, which accepted all recommendations, were published in July 2022.

The SFO published the first implementation update in November 2022, at which point 10 out of the 18 recommendations had been delivered, with a plan established to implement the remaining eight.

As of May 2023, we are on track to implement all the recommendations in full.

The Director of the SFO will continue to report to the Law Officers on the progress of the wider reform work, and any further public updates will be included in inspection reports by HM Crown Prosecution Service Inspectorate (HMCPSI).

This update makes reference to the recent case progression inspection by HMCPSI, which can be found here. HMCPSI found that the SFO has made a substantial effort to address the issues that they identified in 2019 and much of this activity has naturally resulted in many of the Altman recommendations being addressed.

Progress report

Recommendation 1 recommends that “the remuneration for disclosure reviewers is not reasonable remuneration for the work done, or expected to be done, and should be increased to bring it in line with other equivalent organisations.”

In the November update, the SFO confirmed that the Executive Committee had considered this and reluctantly agreed that it was not possible to make the necessary savings to allow an uplift in counsel fees without adversely impacting other parts of the SFO’s work. Furthermore, the SFO confirmed that it was not at that point possible to amend counsel fees within public sector budgetary constraints and pressures. For the purposes of recording delivery of recommendations, the SFO considered that this recommendation had been delivered, insofar as counsel fees had been reviewed and would remain under active consideration.

Update: Work is underway to consider remuneration for this financial year (2023/24); as a government agency, this will be subject to approval by HM Treasury.

HMCPSI considered progress against this recommendation in their case progression follow-up inspection. HMCPSI reported that the SFO changing its resource strategy to prioritise current cases and delaying case acceptances has allowed for the reallocation of disclosure reviewers to priority cases. HMCPSI found the scale of pay that the SFO can offer remains an issue, which makes recruitment in a competitive market a challenge and results in some of those hired being less experienced.

Recommendation 2 noted that “the SFO must continue to consider the means by which it can adequately staff and resource case teams to ensure, so far as possible, that undue time and resource pressures minimise the risk of human error.”

In the November update, the SFO confirmed that at the beginning of 2022 the SFO had introduced systems to better monitor resourcing on cases but that the resourcing landscape remained challenging. The SFO deemed this recommendation to have been delivered but that continuous ongoing monitoring would be required.

Update: the SFO continuously reviews the process by which it monitors case resource and moves resource between cases as necessary. During the last financial year (2022/23), this process has improved the SFO’s ability to resource cases, as recognised by HMCPSI—“the SFO is dealing with resources strategically by exerting more control over when the right time is to move cases to the investigation or prosecution stage whilst ensuring that those cases that are de-prioritised are being managed and commence when resources allow.”—however one of the three recommendations made by HMCPSI in their inspection is that the SFO continue its work to develop a strategic resourcing model.

HMCPSI considered progress against this recommendation in their case progression follow-up inspection. HMCPSI reported that since the 2019 HMCPSI recommendation to develop a resourcing model to aid case progression, the SFO had decided to limit the cases being accepted and developed a system to allocate more resources to high-priority cases. Whilst not a resourcing model, this change in approach was found to be positive. HMCPSI found that the cases they examined were generally progressed effectively and there was evidence that the approach to prioritising cases had improved case progression compared to the findings reported in their 2019 inspection. Given the complexity and scale of the cases being dealt with by the SFO, HMCPSI noted that it must be recognised that it is impossible to remove the risk of human error entirely.

Recommendation 3 recommends that “the SFO should consider the resourcing of its Document Review Systems and Evidence Handling Management Office to ensure the timeliness, efficiency and accuracy of the ingestion and processing of bags of evidence for review by case teams.”

In the November update, the SFO confirmed that it had continuously reviewed its resource allocation to these teams, prioritising recruitment, however vacancies remained open, in part because of the specialist nature of some of the skills required and the highly competitive labour market. The SFO confirmed that it would continue to endeavour to recruit e-discovery experts and those with other specialist skills.

After each recruitment round, the approach to recruitment is reviewed to ensure it is continuously improved. Insofar as the resource allocation had been reviewed, the SFO deemed this recommendation to have been delivered; but that there remained a challenge with robust demand for specialist skills in the labour market. All efforts were being made to achieve this within the existing budget and public sector pay constraints.

Update: the SFO keeps resource allocation to these teams under constant review and has prioritised recruitment. However, due to the specialist nature of some of the skills required and the highly competitive labour market some vacancies remain hard to fill.

The scope of the HMCPSI inspection meant that the inspectors had limited evidence of the impact of the resourcing challenges in the eDiscovery team and Evidence Management Handling Office (EMHO). HMCPSI found there was a much better relationship between the Digital Forensics Unit, eDiscovery team and EMHO than in 2019, which allowed for a better understanding of priorities and improved case management with the degree of consultation between the digital and case teams reducing the risk of material not being identified or processed.

Recommendation 4 recommends that “the SFO should consider ways in which staff may be incentivised to take on the roles of disclosure officer and deputy disclosure officer to increase the pool of able and experienced candidates and improve staff retention in those roles.”

In the November update, the SFO confirmed that before the review was published, the SFO had already established a ‘disclosure officer review project’ to identify options for improving how disclosure officers are recruited (or assigned) and retained. This required working closely with existing and former disclosure officers and deputy disclosure officers, other members of case teams, senior managers, human resources, finance and any other member of staff with views on what changes could be made. In total, the project team consulted over 100 members of staff (approximately one fifth of the SFO’s total workforce).

Update: during the last financial year (2022/23), detailed work has been undertaken to consider this. Planning is under way for how best to increase the pool of candidates for these roles.

HMCPSI considered progress against this recommendation in their case progression follow-up inspection. HMCPSI reported that senior SFO management have developed several proposals for incentivising and developing disclosure handling and that a decision will be made on the best approach to adopt as issues are worked through and an organisational strategy is finalised.

Recommendation 5 recommends that “the SFO should increase the training and support available to disclosure officers by:

deploying disclosure officers on non-charged cases to assist disclosure officers on charged cases, especially when the case is close to or at trial in order to augment the available resources where needed most
in addition to mandatory advanced disclosure training, provide disclosure officers with bespoke disclosure officer training, focusing upon the management of the review and of reviewers
only appointing sufficiently trained and experienced disclosure officers and
appointing sufficiently trained and experienced deputy disclosure officers, where appropriate.”

In the November update, the SFO confirmed that after R v Woods & Marshall, refresher training was provided to all case team staff, in addition to the disclosure officer training already available. Delivery of this recommendation was linked to the delivery of both recommendation 4—delivery of a project to review the role of disclosure officers—and recommendation 12—project management training. As noted above, the unique and technical skills required to effectively manage disclosure are in demand across law enforcement, so recruitment and retention remained a challenge.

Update: as part of recommendation 12 actions, all disclosure training has been refreshed, and a new training course includes the application of project management principles to investigation.

HMCPSI considered progress against this recommendation in their case progression follow-up inspection. HMCPSI reported that initial work had been done to train and increase the skills of staff who currently undertake disclosure duties, and that the delivery of other aspects of this recommendation are linked to the future approach taken in the SFO to the management of disclosure, including whether there will be specific disclosure roles (recommendation 4).

Recommendation 6 recommends that “the SFO should revise the Operational Handbook to introduce standardised methodologies for the disclosure process, as well as introduce management, oversight and monitoring regimes to ensure that the disclosure process is conducted and audited to the same standard across all case teams.”

In the November update, the SFO confirmed that this recommendation had been delivered in October 2022.

Update: the SFO completed this review as recommended. Disclosure guidance in the Operational Handbook will be updated at least once every six months to ensure it remains effective.

HMCPSI considered progress against this recommendation in their case progression follow-up inspection. HMCPSI reported that the amended Operational Handbook sets out clear methods for the handling and management of disclosure and that feedback from staff about the change was generally positive. HMCPSI noted that the Operational Handbook includes a section on assurance and a form to help standardise the assurance process. They also noted that the recent creation of disclosure review meetings to improve assurance and challenge brings a degree of focus that will support the compliance regime for disclosure in each case. HMCPSI found that this change sets the foundation for the SFO to drive a much more rigorous approach to the handling and management of disclosure.

Recommendation 7 recommends that “the SFO should revise the Operational Handbook to include a standardised model for the conduct of quality assurance reviews, which ensures (a) that quality assurance reviews are compliant with the law and guidance on disclosure and (b) that quality assurance reviews are robust, reliable and proportionate.”

In the November update, the SFO confirmed that it was on track to introduce these changes by the end of the calendar year.

Update: the SFO completed this review as recommended. Quality assurance content in the Operational Handbook will be updated at least once every six months to ensure it remains effective.

HMCPSI considered progress against this recommendation in their case progression follow-up inspection. HMCPSI reported that the amended Operational Handbook sets out clear methods for the handling and management of disclosure, including assurance. HMCPSI’s findings from the case examination (and what they were told by staff) indicated that revised assurance processes for disclosure are beginning to take place, with much more scrutiny and challenge. HMCPSI noted that the development of disclosure review meetings allowed management to dedicate specific time to examining disclosure at the case level.

Recommendation 8 recommends that “modelling standardised quality assurance reviews, the SFO should introduce a system of regular and routine inspections and audits of the disclosure process on active cases at key milestones by someone not only sufficiently experienced in disclosure but also independent of the case.”

In the November update, the SFO confirmed that in the preceding 18 months, the SFO had introduced a number of new processes to enable effective and proportionate quality assurance.

Update: over the past two years, the SFO has introduced a number of new processes to enable effective and proportionate quality assurance.

HMCPSI considered progress against this recommendation in their case progression follow-up inspection. HMCPSI reported that improved pre-charge case assurance processes are now in place that are much more structured and regular than those they found in their 2019 inspection and go some way towards addressing this recommendation. In HMCPSI’s view, the in-depth independent reviews conducted by the Criminal Investigation Advisers are detailed and present an opportunity for the SFO to systematise case assurance to include a more detailed examination of disclosure, if the peer review findings are used as a part of any case review and disclosure review meetings.

Recommendation 9 recommends that “the SFO should invest (or continue to invest) in technology to ensure that document review and case management systems are obtained, designed and developed with a focus on the disclosure process.”

In the November update, the SFO confirmed that it was continuing to invest in technology including the design or a new case management system with a view to implement new systems starting from the next financial year (2023/24).

Update: the SFO is continuing to invest in this technology.

HMCPSI considered progress against this recommendation in their case progression follow-up inspection. HMCPSI reported that over the past year the SFO had worked to reconsider what it needed from a case management system. HMCPSI noted that after a significant effort to develop and understand these needs, which has engaged with business users as well as technical staff, the SFO is in a position to work up and develop a proof of concept which will initially generate case data and some automation of repeatable elements of case activity.

Recommendation 10 recommends that “the SFO should invest (or continue to invest) in technology that ensures that case teams can work and meet (and continue to work and meet) securely and remotely online, including adopting back-up/failsafe systems and procedures for exceptional working circumstances, such as those that existed during the imposition of Covid-19 restrictions.”

In the November update, the SFO confirmed that video conferencing capability was rolled out during the pandemic and that this had increased the capacity for hybrid working and, as a result, the SFO’s resilience. The SFO stated that this recommendation had been delivered, and that the needs of the organisation would be continuously monitored.

Update: the SFO put in place the technology required to facilitate hybrid working, and will continue to ensure it meets the SFO’s requirements.

HMCPSI considered progress against this recommendation in their case progression follow-up inspection. HMCPSI reported that the recommendation had been met and delivered.

Recommendation 11 recommends that “the SFO should ensure that it recruits case teams with sufficient technical skills, and, following initial training, provides continuing refresher training, which should be compulsory, in particular, in respect of its Document Review Systems, data management and disclosure law and guidance.”

In the November update, the SFO confirmed that it had analysed training requirements for its document review system and that any additional training would be delivered in 2023.

Update: training for the document review system is available, with additional training (beyond what is already available) being delivered in this financial year (2023/24).

HMCPSI considered progress against this recommendation in their case progression follow-up inspection. HMCPSI noted that concern about the standard and usefulness of training on how to use the document review system was a regular issue staff raised with inspectors during interviews. HMCPSI reported that these concerns had been recognised by the SFO and a tailored and bespoke training course had already been developed and was in the process of being rolled out, with all staff who requested additional training having received or been offered the training.

Recommendation 12 recommends that “the SFO should consider providing case controllers, disclosure officers and deputy disclosure officers with project management training and support in order to improve the management of case teams, time and resources.”

In the November update, the SFO confirmed that the Executive Committee had approved a plan for delivering a project management training pilot, which was on track to be completed by the end of the year. The SFO confirmed that it would roll out project management training more widely from 2023.

Update: a new training course for SFO officers includes the application of project management principles to investigations and prosecutions.

This recommendation was out of scope of the HMCPSI case progression follow-up inspection.

Recommendation 13 recommends that “the SFO should ensure mandatory compliance by case teams with performance monitoring of all instructed counsel to include (a) Periodic Performance Reviews and (b) the use of the Performance Monitoring Form, as required by the current Managing Counsel guidance.”

In the November update, the SFO confirmed that it had reviewed roles and responsibilities of each member of a case team and refreshed relevant guidance. This work reiterated who in a case team is responsible for monitoring counsel performance. The SFO confirmed that this recommendation had been delivered and that continuous monitoring was ongoing.

Update: the counsel performance management system was amended in the last financial year (2022/23) and remains under review as to how best to ensure a proportionate review system that delivers the highest performance from counsel.

HMCPSI considered progress against this recommendation in their case progression follow-up inspection. HMCPSI found the evidence from the cases in their file examination indicated compliance with the process.

Recommendation 14 recommends that “the SFO should review and, if so advised, revise the Managing Counsel guidance and training for all those engaged in the instruction of counsel. In particular, the SFO should consider whether the Managing Counsel guidance should be revised so that direct responsibility sits (a) with the disclosure officer for the monitoring of the performance of disclosure review counsel and (b) with the Case Controller for the monitoring of the performance of trial counsel, while the Case Controller bears overall responsibility to ensure the holding of Periodic Performance Reviews and the completion of Performance Monitoring Forms.”

In the November update the SFO confirmed that all relevant guidance had been updated and that delivery of this recommendation was linked to implementation of recommendation 13. The SFO confirmed that this recommendation had been delivered, with continuous monitoring ongoing.

This recommendation was out of scope of the HMCPSI case progression follow-up inspection.

Recommendation 15 recommends that “the SFO should consider redesigning the Performance Monitoring Form in particular as regards its applicability to disclosure review counsel, to include as additional key performance indicators (a) the nature and the volume of the work counsel has conducted monthly since the last performance monitoring round (b) the accuracy of all aspects of their review work and (c) the letter of engagement to counsel should be redesigned to include a section on Performance Monitoring.”

In the November update, the SFO confirmed that the counsel performance monitoring form had been amended and rolled out. The SFO confirmed that this recommendation had been delivered with continuous monitoring ongoing.

HMCPSI noted that since the issues identified in R v Woods & Marshall, the SFO had strengthened its processes in relation to the monitoring and engagement of disclosure counsel.

Recommendation 16 recommends that “the SFO should ensure that:

its internal generic disclosure guidance documents are reviewed, simplified, rationalised, regularly revised and updated
they offer reviewers not merely technical but also real practical guidance
its case-specific disclosure guidance is regularly reviewed, revised and updated and focuses on the known and foreseeable issues in the case
the SFO employs a standard form of version control bearing the date and a unique version number for all internal guidance documentation
each case team maintains an audit record of the detail of the guidance documentation provided to its disclosure review counsel (document version number, date and recipient) who should be invited to certify on a dedicated form what they have read, when they did so and that they have understood the guidance and
those certifications should be attached to the Disclosure Management Document and any amended Disclosure Management Document.”

In the November update, the SFO confirmed that the ‘counsel commitment form’ had been amended and had been sent to all active counsel for signature. The SFO committed to considering the need for any changes to internal guidance before the end of the year.

Update: documentation for reviewers has been updated and shared. This will remain under review.

HMCPSI considered progress against this recommendation in their case progression follow-up inspection. The scope of the case progression follow-up inspection did not allow for a full assessment of all aspects of this recommendation. HMCPSI noted there was some evidence to indicate that the SFO had started to make progress on improving the generic guidance it provides for the management and handling of disclosure, including that contained in the Operational Handbook.

Recommendation 17 proposes that “the SFO should ensure that the representations made in the Disclosure Management Document about its approach, processes and intentions – whether past, current or future – are accurate and complied with. Where appropriate, the Disclosure Management Document should be updated (if need be, by way of a supplementary document) to reflect any changes and/or developments in the approach or process, as well as in the relevant and/or live issues in the case. It should operate as a living document, ensuring complete transparency and defence sign-up to approach and process. It should serve to gain and maintain the confidence of the court, the defence and the SFO itself in the disclosure process.”

In the November update, the SFO confirmed that as of October, this recommendation had been delivered with continuous monitoring ongoing.

Update: Disclosure Management Documents are regularly updated by case teams and regularly reviewed by Heads of Division for quality.

This recommendation was out of scope of the HMCPSI case progression follow-up inspection.

Recommendation 18 proposes that “the SFO should ensure that it encourages and engages with the defence in the disclosure process. Disclosure should be treated as a two-way street, so that engagement identifies and focuses on the real issues in the case, in order to direct defence disclosure requests and prosecution reviews.”

In the November update, the SFO confirmed that the importance of effective engagement was continuously made clear to all SFO staff and that most recently, this had been underlined through the review of case team roles and responsibilities (see recommendation 13). The SFO confirmed that this recommendation had been delivered with continuous monitoring ongoing.

Update: the importance of effective engagement is regularly made clear to all SFO staff, and is discussed during disclosure review meetings. Early and effective engagement with and by the defence is a critical part of ensuring effective disclosure.

This recommendation was out of scope of the HMCPSI case progression follow-up inspection.

To download this update in pdf format, please follow this link.