Lord Coulsfield's analysis and recommendations: R8. 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. 10.5 The actual application of the requirements to pursue alternative lines of enquiry and to identify exculpatory evidence is a matter for the officer in charge of a particular investigation. However, there needs to be a system for ensuring as far as possible that the police do not lose sight of any areas of investigation that positively exculpate the accused or undermine the prosecution case, and the police also need to recognise that what they do can subsequently be open for examination. In major investigations the police Senior Investigating Officer ( SIO) will record decisions on lines of enquiry, and the recording of such decisions by the officer responsible for the investigation should be encouraged even in the less complex cases. 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. 10.14 I have recommended that there should be a statutory definition of disclosable material. However, the police need to have a practical working rule of thumb when deciding what material to record and retain, and that rule should be designed to encourage them to include rather than exclude material whose relevance may be doubtful or marginal. During the process of an investigation police officers may need to inspect a great deal of information which has been obtained or generated. It is imperative that they should accurately record and retain the information which may be relevant either to proof of the case or to exculpation, and should err on the side of recording doubtful material rather than discarding it. I therefore recommend that 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, where (at Chapter 1, Paragraph 6) "relevant material" is defined as: " …anything that appears to an investigator, or the officer in charge of an investigation or the disclosure officer to have some bearing on any offence under investigation or any person being investigated or on the surrounding circumstances unless it is incapable of having any impact on the case". I think that this definition is sufficiently broad to cover material that has either been obtained or generated during the life of an investigation, and could be used as the working guide for investigators. 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. |