The Serious Fraud Office is still struggling to understand the status of legally privileged material, the latest inspection of the agency revealed yesterday. HM Crown Prosecution Service Inspectorate found that although the body has made ‘strong’ progress in its disclosure practices, the ‘most significant residual risk concerns the management of legally privileged material’.
The report assesses the SFO’s progress in meeting three of the six recommendations made in a 2024 inspection. Inspectors found no reliable system for monitoring LPP material, while ownership of the LPP process across the organisation was unclear, potentially hampering prosecutions.
‘Case teams often remain dependent on technical specialists or external counsel to understand the status of legally privileged material,’ it said. ‘There is no consistent mechanism that enables case teams, managers or senior leaders to obtain a complete picture of the volume, status and risks associated with quarantined legally privileged material across relevant cases.’
The report acknowledged that ‘the SFO has made changes in relation to LPP, including developing approaches using specialist counsel and early use of technology-assisted review’. But not all teams ‘possess the necessary knowledge or experience to obtain’ relevant information from eDiscovery relating to LPP and the process for determining if material is privileged.
The SFO’s two LPP projects to address this were described as ‘promising developments’ but ‘do not yet constitute a complete assurance model’.
HMCPSI recommended that, by October next year, the SFO introduce a process for case teams to understand the status of LPP review work throughout the life of a case, with monthly updates on relevant material.
HMCPSI chief inspector Anthony Rogers said: ‘The SFO is in a stronger position today than it was two years ago. [It] must now build on that progress, particularly in how it handles legally privileged material, which remains one of its most significant risks.
‘Victims of serious fraud should have prosecutions that are built to withstand challenge in court, and this report gives the SFO a clear roadmap to close the gaps that remain.’
Matthew Wagstaff, director of legal services at the SFO, said: ‘The findings of this report will directly inform the next stages of our plan. Improving how we undertake disclosure remains a top organisational priority.’
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