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The Summary Justice Review Committee: REPORT TO MINISTERS
Chapter 22: PRODUCTIONS FOR SUMMARY CRIMINAL CASES
22.1 In the course of a year a large amount of property is seized by the police as potential productions for criminal cases but of that only a very small proportion is ever produced in court. Some productions, such as perishable items, may have to be destroyed before they can be produced in court. Many productions are not retained - productions, such as alcohol and cigarettes which do not differ from other alcohol and cigarettes of the same brands in any relevant particular, ought to be and usually are routinely returned to the owner of the property. In spite of this many productions are retained - but few ever reach a courtroom. Of those that do not all are referred to in evidence. Storage in secure conditions of large numbers of productions (some of them bulky), accounting for them, and moving them to courts in anticipation that a trial will proceed on a particular day is expensive. The retention and production of documentary and other productions is not an issue of application only to summary cases. It affects cases prosecuted on indictment also.
22.2 We are informed that practice with regard to retention of productions varies across the country with a bias towards retention until a decision is taken to return them once it is known that they are not required for a trial. In West Lothian, as a result of a policy decision, very few productions are retained by the police. The bias in West Lothian is to return them unless they clearly have to be retained. The practice in West Lothian has not so far been challenged.
22.3 The retention of productions for trial is essential in relatively few cases. There may be something about the production which is crucial to the proof of the case or to the defence of it. A knife which has allegedly been used to commit the offence or clothing worn by the accused soon after the offence was committed may be crucial to the outcome of the case. DNA evidence or fingerprints similarly may be of the utmost importance. Original documentary productions may have features which are of great significance in trials for fraud or embezzlement. They and others which may affect the outcome of a case should be retained. Some of these productions would not be returned in any event. The more difficult issues arise with items of property owned by individuals or businesses. Such property should not, we think, be retained for no better reason than that it might be needed for completeness. Victims of theft, particularly housebreaking, should not be deprived of their own property once it has been recovered unless it really is necessary to do so. Controlled drugs which are the subject of a prosecution, in most cases, do not need to be produced in court.
22.4 We recognise however, that at present the production itself is the "best evidence" and must be spoken to. If it is not there may be a submission of no case to answer and the Crown case may fail. For that reason to safeguard their position the police and the Crown consider it necessary to retain many productions in case they are required even though they know that most will not be used. Their difficulty is that they cannot always foresee which ones will prove to be necessary. We have been told that the current bias in most areas towards retention causes problems for the owners of property being held as well as storage and management problems for the police, the Crown and the courts. We suggest that the best way forward would be for a working party to review this issue with the aims of clarifying the position and identifying whether there is a need for legislative change. It may be that guidelines would be sufficient though we would expect that these would be provided by judicial decision in the course of a suitable High Court appeal. We would expect that any guidelines would identify the categories of productions which should be retained, the circumstances in which they should be retained and in what circumstances the use of photographic evidence as opposed to the retention of the production would be acceptable. We believe that it would be helpful to define the circumstances in which photographs of productions may take the place of the productions themselves. We take the view that it is highly desirable that the numbers of productions currently retained in police stations, procurator fiscals' offices and courts throughout the country should be reduced.
We recommend that the need for the police to retain productions with a view to trial should be reviewed with the aims of clarifying the law, e.g. by legislative change or the provision of guidelines, and reducing the amount and types of property which it is necessary to retain for possible production at a trial.
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