Lord Coulsfield's analysis and recommendations: 7.1 If disclosure is to be limited to information which is relevant and material, someone will have to exercise judgement in deciding what should and what should not be disclosed. Since the prosecution authorities have all the information which may be disclosable, it is inevitable that they will require to exercise some discretion in the process of decision as to what is disclosable, because no one else is in a position to make the decision, at least initially. I do not think this observation is in conflict with Rowe and Davis: what that case decides, I think, is that the prosecution cannot at their own hands decide not to disclose something which otherwise passes the test for determining what is disclosable, however that test is formulated. 7.2 It follows that someone must decide which documents and items are disclosable and which are not. I did consider whether this process could be simplified by devising a categorisation based on types of material: some which should automatically fall to be disclosed; some which would not normally be disclosed; and others on which no presumption could be made in advance. However, on consideration I have concluded that it is impossible to devise a classification which would be really useful and reliable: any list of "normally disclosable" documents would inevitably be superficial, and would risk leading to too much attention being placed on those within the list, and not enough on those outside it. The best approach, in my view, is: R10. 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. ES37 It is inevitable that some of the decisions will be made by the police themselves. It follows that some understanding of the requirements of disclosure is necessary at all levels in the police service, increasing, of course, at senior levels. Police training is therefore a fundamentally important part of the package. R11. 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. |