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IMPROVING PRACTICE
CHAPTER 18 MISCELLANEOUS CHANGES
Background
18.1 In the course of the Review a number of suggestions were made for changes in individual elements of procedure. I wish to deal with two areas in particular; the role in court of forensic scientists and pathologists, and the preparation of social background reports.
Forensic Scientists and Pathologists
18.2 All forensic science laboratories in Scotland are working to capacity, because of the growth in the requirement for scientific analysis of material, in particular DNA and drugs. There is a shortage of forensic pathologists in Scotland. Both groups are working under a great deal of pressure. It is important, therefore, to reduce their involvement in court proceedings as far as possible.
18.3 During the investigation process the scientific examination and analysis of material is carried out by two forensic scientists. Post-mortem examinations are carried out by two forensic pathologists. That is because corroborated evidence of their findings may be required. A statutory provision allows the evidence of one forensic scientist or pathologist to be sufficient corroborated evidence if certain procedure is followed 266. That procedure is routinely followed in relation to forensic scientists, and only one of them is called to give evidence. It is generally not followed in relation to the evidence of forensic pathologists. I have been unable to identify a reason for that. There are cases where the evidence of both is necessary, because they are speaking to controversial issues about which there may be competing evidence. In many trials that is not the case. The Crown should give consideration to using the procedure which permits reliance on the evidence of one forensic pathologist in appropriate cases.
18.4 There are already provisions allowing the evidence of analysis of drugs to be provided in the form of a certificate. Should the certificate not be challenged, then it provides sufficient evidence of the facts contained therein 267. These provisions are not used in High Court proceedings. There is scope for their wide use. Certificates could be included routinely in the material accompanying a notice of uncontroversial evidence. These provisions do not apply to the evidence of forensic pathologists. As I have already indicated, there is often no controversy over their evidence. Consideration should, therefore, be given to whether an autopsy report certified by the forensic pathologists might provide sufficient evidence of the facts contained therein. Following these proposals would reduce the occasions on which forensic scientists and pathologists will require to give evidence at court.
18.5 There will remain many cases where it is considered appropriate to lead oral evidence from one or other or both. I mentioned above the provision that the evidence of one can be sufficient corroborated evidence of the facts that the witness speaks to. At present it is necessary to identify that one scientist or pathologist in a notice given to the defence 268. Having given the notice, the Crown are obliged to lead the evidence of that witness and not the other. There are many occasions when it would be more convenient to lead the evidence of the other. Consideration should, therefore, be given to amending section 281 of the Criminal Procedure (Scotland) Act 1995 to provide that the notice given to the defence should simply state that the Crown will rely on the evidence of one without specifying which.
Background Reports
18.6 There are various statutory provisions which oblige the Court to obtain background reports before imposing sentence 269. In particular, the Court cannot sentence a person under 21 years of age 270 or a first offender to a period in custody without first obtaining a background report 271. To expedite the court's business, these are routinely prepared before the case is heard. The court may thus be in a position to sentence the accused immediately upon conviction. That means that many reports are prepared without knowing whether the accused will plead, or be found, guilty. The reports often suggest that, in the event of the accused being found guilty, a further report should be obtained. Proposals currently before the Scottish Parliament will require psychological assessments to be carried out in sexual offence cases after guilt has been determined 272. In these cases the availability of a pre-trial social enquiry report would not expedite sentence.
18.7 It is now increasingly likely that, in fewer than 50% of the cases in which pre-trial social enquiry reports are prepared, the court will make use of the report to impose sentence immediately following upon conviction. That raises the question whether obtaining pre-trial background reports is an efficient use of resources. The social work court liaison staff based in Glasgow and Edinburgh are able to compile, or arrange for the compilation of, urgent reports when requested by the court. However, the norm is that the case is adjourned for three or four weeks for reports to be obtained. Reducing that period would increase the prospects of a case being dealt with at the court where it was heard initially. The practice of obtaining pre-trial social enquiry reports should be reviewed, and consideration should be given to whether reports should no longer be prepared pre-trial and arrangements could be put in place to expedite the preparation of reports post-trial.
18.8 All copies of completed reports are sent to the Court. The accused would have more opportunity to discuss the terms of the report with his representatives if a copy was sent to them directly. The Court should, at the time of requesting the preparation of a report, advise the reporting social worker of the name and address of the solicitor acting for the accused to enable that to happen.
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