Summary of Recommendations
1. The formulation in McLeod, to specify what requires to be disclosed, should be adopted in statute to clarify the law in Scotland. (Para. 5.34) ( see also recommendation 5 below)
2. Witnesses should be able to refer to copies of their statements when called to give evidence in court, in all cases where these statements have been made available to the Crown and to the defence. (Para. 5.42)
3. It should be made clear in any legislation that the rule that what has to be disclosed is relevant and material information applies to statements as well as any other material. (Para. 5.44)
4. The rule that it is material matters which have to be disclosed should also apply to previous convictions and outstanding charges, and that should also be made clear in any legislation. (Para. 5.45)
5. There should be a statutory definition of the duty of disclosure which should provide that, with a view to implementing the requirement of fair trials in criminal matters, the duty of the prosecutor in both solemn and summary cases is to disclose to the defence all material evidence or information which would tend to exculpate the accused whether by weakening the Crown case or providing a defence to it. (Para. 5.46.1)
6. The statute should provide that the duty applies to all categories of material produced or recovered in the course of a criminal investigation and that it applies throughout the whole course of the investigation and prosecution. (Para. 5.46.2)
7. The statute should provide that the material to be disclosed includes but is not limited to the following six categories:
- Evidence which may point to the conclusion that no crime has been committed or that no crime was committed on the date or at the place libelled.
- Evidence which may contradict evidence (real or oral) on which the Crown case will rely.
- Information which may cast doubt on the credibility or reliability of the Crown witnesses.
- Information which may be inconsistent with scientific or other expert evidence on which the Crown will rely or with inferences which may be drawn from such evidence.
- Evidence or information which may point to another person as perpetrator.
- Evidence or information which might reduce the degree of seriousness of the offence.
(Paras. 5.46.3 and 5.35)
8. The key provisions on disclosure should be contained in primary legislation, but there should also be a code of practice issued under the statute. This could contain supporting information on the implications of the Act and could also specify standard processes. (Para. 5.47)
9. Legislation should provide for a system of "Public Interest Immunity" hearings in Scotland, along the lines of the English model. The trial judge or sheriff should conduct the hearings, and the use of ex-parte applications and special counsel should be possible when necessary. This facility should extend to both solemn and summary cases. (Para. 6.40)
10. It should be made absolutely clear that the prosecution authorities have a responsibility to consider each document or item on its own merits, and decide whether it has potential exculpatory value. (Para. 7.2)
11. The final decision as to what is to be disclosed will be taken by the procurator fiscal or Crown counsel so the position can be summed up quite simply: the police should tell the procurator fiscal everything that they know, apart from the totally and manifestly irrelevant, and the responsibility for discriminating between disclosable and non-disclosable material should lie with the prosecutor. (Para. 7.4)
12. A system of schedules of material in solemn cases should be introduced, along the lines of the system in England and Wales. (Para. 7.9)
13. The legislation or the statutory code of practice should explicitly place on the Crown a responsibility to review disclosure decisions in the light of any new information provided by the defence. (Para. 7.10)
14. The code should set out a standard recommended form for a defence statement for this purpose. (Para. 7.11)
15. Legislation should allow for the use of Public Interest Immunity applications in summary cases as in solemn; but there should be no requirement for the production of schedules in summary cases. (Para. 9.12)
16. ACPOS and the Scottish Police Services Authority should review how the principles related to disclosure are presented to probationers, and should consider the need for a Scotland-wide initiative to promulgate the principles and practice in this report to all serving officers. There would also be value in having, for a limited time, a central unit to prepare plans for effective training and to monitor results; and a system of inspection or supervision to assist individual forces and the SPSA in ensuring that the effect of training is not dissipated. (Para. 10.4)
17. The code of practice should include a section outlining the responsibilities of the investigating officer to conduct reasonable lines of enquiry and identify possible exculpatory evidence. (Para. 10.5)
18. In any investigation of a serious crime which could lead to a solemn criminal trial, the norm should be for all statements taken from civilian witnesses to be written or typed out in full and signed by the witness, at or close to the time when the statement is taken. (Para. 10.6.1)
19. When the police are required to reveal a civilian witness statement to the procurator fiscal but no signed version of the statement is available, the information that is revealed should, as far as possible, consist of the exact words used by the witness. (Para. 10.6.2)
20. In summary cases, the practice of getting full statements signed by witnesses will often be beneficial; the police should therefore adopt this practice whenever it is practicable to do so and a proportionate use of their time and the witness's time. (Para. 10.8)
21. The statutory code of practice should include a definition of material which "may be relevant", which could be based on that in the Crown Prosecution Service Disclosure Manual in England and Wales. (Para. 10.14)
22. The organisation of retention and recording must be secure. Police forces should therefore carry out a full review of their systems and practices, in the light of this report, in order to secure clear and reliable systems, backed by effective IT. (Para. 10.16)
23. Police guidance notes on the management of and retention of material should be reviewed to ensure that they conform to requirements. They should also form part of the police training package to ensure that frontline officers are fully aware of their duties and responsibilities of recording, retention and storage of material. A section outlining the responsibilities of officers in charge of investigations should also be included in the code of practice detailing their duties in respect of the reviewing, recording and retaining of material obtained or generated during investigations. (Para.10.19)
24. In large scale investigations, Senior Investigation Officers should consider the appointment of a dedicated officer to deal exclusively with the reviewing of the information obtained or generated, the preparation of schedules and subsequent revelation to the procurator fiscal. This officer should be suitably trained in revelation and disclosure requirements and the responsibilities of such an officer should be set out in the code of practice. (Paras. 10.20, 10.21)
25. The disclosure facility on HOLMES2 will require to be reviewed by the HOLMES community in Scotland and adapted to comply with Scottish disclosure requirements. Similarly there will be significant training implications for dedicated officers and HOLMES staff. (Para. 10.27)
26. In Scotland, as already happens in Northern Ireland, all material that may be relevant to a solemn case should be listed on a schedule, without a distinction between "used" and "unused" material. (Para. 12.2)
27. The police should include on the schedules all items that "may be relevant" - ie anything which could have a bearing on the outcome of the case - and should err on the side of including material in interpreting this requirement. There should be one schedule for non-sensitive material and another for material which is "sensitive" - ie if its disclosure would create a real risk of serious prejudice to an important public interest. The code of practice should set out the procedures to be followed. (Paras. 12.2.1, 12.2.2, 12.3)
28. The Crown will then require to go through the schedules and consider:
- whether they wish to see any of the items for their own purposes;
- whether they agree with the police classifications of items as disclosable or non-disclosable and as sensitive or non-sensitive;
- whether the descriptions of items are sufficiently informative and fit-for-purpose, including for defence use in the case of the non-sensitive schedule.
The Crown will add their comments and revisions to the schedules and then send a copy of the non-sensitive schedule to the defence.
(Paras. 12.4, 12.5)
29. It will be open to the defence to apply, informally to the Crown or formally to the court, for disclosure of any item on the schedule in the usual way. However such requests should not require to be granted unless the defence can justify why there is a need for disclosure. (Para, 12.6)
30. The statutory code of practice should make it clear that the Senior Investigating Officer ( SIO), Reporting Officer ( RO) or dedicated officer will be responsible for ensuring that the material has been reviewed, and that the schedules prepared and submitted are complete. (Para. 12.7)
31. The summary of evidence to be provided with a summary complaint will require to give a reasonably full account of the evidence available at the time of the police report, including:
- the basis of the case against the accused;
- the main witnesses in the case; what type of notes or statements (if any) has been taken from each, and the main points that each will speak to;
- whether there is CCTV which supports the prosecution case;
- whether forensic information has been recovered and if so whether it has been analysed; and crucially
- whether there is any material evidence or information which would tend to exculpate the accused whether by weakening the Crown case or providing a defence to it, and if so, the nature of this.
(Para. 13.3)
32. Amendments should be made to the standard prosecution report template and any other (abbreviated) report templates agreed for use by the Crown and the police, to prompt for this information, and a police officer should be required to confirm the completeness and robustness of the information provided. (Para. 13.4)
33. In summary cases, following a plea of not guilty the defence should continue to receive a provisional list of witnesses covering those the Crown intends to call and any who might be expected to support the defence. It should be possible to provide this considerably faster than the timescale allowed for post-plea disclosure under the existing system. A plea of not guilty should also trigger action by the Crown to disclose, prior to the Intermediate Diet, a provisional list of productions - with the ability to inspect any of the productions on request; and all information which meets the McLeod (or statutory) disclosure test if it has not already been provided with the complaint - and this could include any statements taken from witnesses who dispute or doubt the Crown's case. (Para. 13.6)
34. The Crown's internal guidelines on redaction should be checked in light of this report, to ensure that they clearly and accurately set out guidance on redaction and including (i) when information should be classified as irrelevant and sensitive and (ii) the proper practice to follow where information is relevant and sensitive. The guidelines should if possible be made public, so that all parties can share a common understanding of how redaction is carried out. (Para. 14.11)
35. Given the increase in the amount of personal information which may require to be disclosed in different types of cases, there should be legislation making it an offence to misuse disclosed information, similar to that in England and Wales. (Para. 15.16)
36. Current practice regarding Crown precognitions should be strengthened in one respect, in order to satisfy the obligation to disclose material evidence that would tend to exculpate the accused that has been elicited during the precognition of a witness. While not disclosing the actual precognition, it would be appropriate for the Crown to tell the defence what the material evidence is, rather than merely advising the defence that they should precognosce the witness. Such intimation of material evidence should, insofar as possible, be made in writing. (Para. 16.7)
37. Efforts should continue, to address the problem of ensuring that there is equipment available on which the visual-image recordings can be played. (Para. 17.3)
38. It may commonly be necessary to effect disclosure of visually-recorded material not by passing a copy of the tape to the defence, but by arranging for them to view it under controlled conditions. (Para. 17.4)
39. There is no requirement for the prosecution to disclose an entire tape, but only the relevant part of it. However, where an extract is provided the defence should be told the duration of the entire tape; in the usual way, they should be entitled to apply to the Crown and if necessary the court for additional footage, provided they can justify such a request. (Para.17.5)
40. In both solemn and summary cases, the Crown should obtain criminal history records for all witnesses whom they intend to call at trial. (Para. 18.2)
41. In solemn cases, the Crown should then apply the McLeod (or statutory) disclosure test to each of these records, with only those which may be relevant being disclosed. (Para. 18.3)
42. For summary cases, disclosure of Criminal History information should only be made if it is requested. However, the Crown should still be required to obtain the information, partly for its own purposes, and partly to avoid delays in the event that such a request is made. (Para.18.5)
43. The issue of disclosing the findings of Children's Hearings which are relevant to the defence of an accused may require further consideration, in the light of the principles and policies of the Children (Scotland) Act 1995. In the meantime, the Crown should not simply apply Holland and make disclosure automatically. It will be necessary to give careful consideration to the extent to which a decision of a Children's Hearing should be disclosed and, if there is any doubt, to refer the issue to the court under the PII procedures. (Para. 18.8)
44. Victim statements should not be disclosed as part of routine advance disclosure of witness statements; but where the victim statement does contain material that would tend to exculpate the accused, the COPFS must provide the defence with written details of that material. This need not take the form of providing the defence with a copy of the statement. (Para. 19.7)