Footnotes
1. Justice 1 Committee Official Report 31 May 2006, Col.3297.
2. I do, however, make some comments on the use of the findings of Children's Hearings in adult criminal courts, in chapter 18.
3. Annex 1
4. See particularly section 57.
5. In some jurisdictions, including Canada, the obligation to disclose relates to all evidence in the possession of the prosecutor, whether inculpatory or exculpatory.
6. For this purpose, the expression "prosecuting authorities" includes the police and the COPFS and also other public authorities (specialist reporting agencies) which have the function of investigating criminal activities, such as HM Revenue and Customs.
7. See paras. 5.6-5.9 below.
8. I note in passing that few of these formulations should be taken as requiring the prosecution to disclose inculpatory material which they do not intend to present at trial. For example, if there is evidence which goes entirely against the accused but which the prosecution regard as too sensitive to present in court, there should be no need to disclose it. The wording in the old English rule and the CPIA are clearest on this point, but in my view the adjective "material" carries the same implication in the rules derived from Edwards, McLeod and Sinclair. In Scotland, when deciding what evidence to use in order to make their case, the prosecution have discretion and are not obliged to bring forward any more of the evidence in their possession which tends to incriminate the accused than they think proper.
9. "Sensitive material" is defined in the English code of practice, discussed later, as material "whose disclosure would create a real risk of serious prejudice to an important public interest", but it is clear that the term can describe either type of sensitivity - see Annex 2.
10. There is also an initial procedural difficulty, at present, in that while the defence can apply for a commission and diligence to recover documents, and the court can exercise a judgement as to whether or not the documents sought should be revealed, there is no procedure by which the Crown or an interested party can apply to the court to restrain disclosure of potentially harmful material. That difficulty can, however, be easily dealt with, and I will later make proposals as to the form of procedure which should be available.
11. This, as will be seen, arises even more sharply in connection with material which is sensitive for reasons connected with police methods, covert investigations or national security.
12. The term "public interest immunity" was originally used to refer to the protection of confidential government documents and the like, which could be covered by a ministerial certificate objecting to disclosure either on the ground that a particular document was of such a character that it could not be revealed without damage to an important public interest or that it belonged to a class of documents which, as a class, required similar protection. It is generally agreed that, although there are similarities between that situation and disclosure in criminal cases, the terminology is not really appropriate in the context with which this report is concerned. It has however been regularly used and I propose to continue to use it, noting, however, that there are important differences between the two situations.
13. Section 3(1)(a)
14. See eg Emmerson and Ashworth Human Rights and Criminal Justice para.14-122.
15. There is some parallel with the developments in relation to the authorisation of intrusive surveillance which eventually led to the Regulation of Investigatory Powers Act and the Regulation of Investigatory Powers (Scotland) Act.
16. There might be thought to be a difference between the cases in that the guarantee of trial within a reasonable time is an express provision in Article 6 while the obligation to disclose is inferred from the general provision for a fair trial: but equally it may be argued that there should be no difference in effect between a right conferred by express provision and one inferred.
17. cf Brown v Stott per Lord Bingham at 59 and DS v HM Advocate [2007] UKPC D1, 2007 SCCR 222
18. Figures may be accessed via http://www.crownoffice.gov.uk/About/corporate-info/
19. Includes other public authorities (specialist reporting agencies) which have the function of investigating criminal activities, such as HM Revenue and Customs.
20. Civilian witnesses are all witnesses other than police witnesses, professional witnesses, expert witnesses and official witnesses.
21. The effect of this provision will be modified by section 18 of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007. A new paragraph (ba) will be inserted into subsection (1) of section 148 and will provide that the court at the intermediate diet should ascertain from the prosecutor and the accused the number of witnesses that are required to attend the trial. I understand that the purpose of this amendment is to ensure that the parties to a case have given proper consideration to which witnesses they wish to call at the trial before the intermediate diet, the aim being to reduce the number of witnesses who are called to the trial and are subsequently not required to give evidence. This new provision, however, does not appear to restrict the prosecutor or the accused from calling additional witnesses at the trial, should they so wish.
22. This is the general Crown practice other than for Glasgow District Court cases, where the normal practice is to provide a summary of evidence instead of a full set of statements.
23. The summary provided to the defence should of course take account of any further investigations carried out or information provided at Crown request between the submission of the original police report and the serving of the complaint.
24. Any forensic material obtained by the Crown should be notified to the defence when it is obtained. However, forensic information is not normally analysed unless it is clear it will be needed, and so is not commonly available until shortly before the trial if at all. See also paragraph 10.24.
25. In all cases whether a custody, undertaking, report or warrant application case, the police forward initial details of a case to COPFS by the submission of a Standard Prosecution Report ( SPR). This informs COPFS of details of the accused, bail information, charge(s), a summary of evidence, productions, reporting officer's details, witnesses' and accused's previous convictions. It would appear that if information which would tend to exculpate the accused, undermine the prosecution or assist the defence case has been obtained or generated at the stage of preparing the report, and if the case is expected to be dealt by summary proceedings, then the SPR would be an obvious and appropriate means for the police to inform the PF of the material. This does not exclude the police from also doing subsequent work to review any further material obtained or generated during the course of these investigations.
26. See para. 5.30
27. I understand that procurators fiscal are sometimes reluctant to include witnesses addresses in statements in case the witness has not consented to their address being made available to the accused. A practical alternative would be to include addresses of witnesses (other than vulnerable witnesses) in the witness list instead, because this is normally seen only by the agent and not by the accused.
28. [1844] 6 D 1255
29. [1895] 22 R 417
30. [2005] HCJ 02
31. See eg Kerr v HMA [1958] JC 14, Cook v Mc Neilie [1906] 13 SLT 838
32. Paras. 5.45 and 9.3
33. or in due course the statutory disclosure test which I recommend should be based upon McLeod
34. Note that here "relevant" has its plain English meaning, rather than the wider definition introduced in chapter 10.
35. The prescribed offences are defined by statutory instrument and during the course of the pilot this ranged from non-sexual and sexual crimes of violence to housebreaking, fire-raising and racially motivated offences.
36. Information provided courtesy of Inspector Norman Dixon, Mobile Data Project Manager, February 2007.
37. Priority cases include any cases where custody diets/early diets have been fixed where the accused is on bail/ OTA, eg cases involving child/vulnerable witnesses