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Part III Practical Application
10. Responsibilities of the police
10.1 In the previous section I have tried to analyse the requirements of disclosure in principle. In this section I will try to set out some practical recommendations, without repeating the previous discussion, except where absolutely necessary.
10.2 The police 19 have responsibility for investigating crime. The police therefore have responsibility for the initial response to a criminal incident right up to the point when they consider they have assembled a sufficiency of evidence, at which they may charge a suspect and make a report (known as the standard prosecution report) to the procurator fiscal. The fiscal then decides whether and how to progress the matter, and may instruct the police to extend the investigation in specific ways. However, day-to-day responsibility for how the initial investigation is conducted, and the content of the report to the fiscal, remains with the police.
10.3 It is manifest that the first and perhaps most important practical step is to ensure that police officers at all levels understand what the requirements of disclosure are and appreciate and accept that disclosure is part of effective policing in the modern setting. There are three heads under which the duty can be considered: alternative lines of enquiry; exculpatory evidence; and accurate taking and recording of statements. In each case, the performance of this duty requires the exercise of judgement and common sense, according to the circumstances of the particular case, and cannot be reduced to simple rules. It is therefore vital that police training from the probationary level, should be designed to enable officers to understand the principle of the right to a fair trial and the advantages which a proper performance of their duty has to investigation and prevention of crime as well as to prosecution. Equally, it is important to "sell" the principle to serving officers. It would be unfortunate if the effect of training for probationers and junior officers were diluted by any existing reluctance to take on board and apply the lessons learnt.
10.4 Training is a matter for individual forces and the Scottish Police Services Authority ( SPSA). I therefore recommend that ACPOS and the SPSA should review how these principles are presented to probationers, and should consider the need for a Scotland-wide initiative to promulgate the principles and practice in this report to all serving officers. I understand that ACPOS is in the process of developing a central unit to prepare plans for effective training and to monitor results. I see a valuable role for such a unit, at least for a limited time. I would add that there would also be value in having, again for a limited time, a system of inspection or supervision to assist individual forces and the SPSA in ensuring that the effect of training is not dissipated.
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. I would therefore recommend that 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.
The taking of Statements
10.6 In Scottish criminal procedure, with some exceptions (such as where the witness is deceased), recorded written statements are not used in place of personal oral evidence by the witness except by means of a joint minute of admissions. Perhaps in consequence, there has developed a significant difference between Scotland and England & Wales, in police practice in taking statements. South of the border, the general rule is that all statements are fully written up, and signed by the witness, at the time they are taken. In Scotland, many statements are taken in this way but not all: the police will sometimes initially record details in note form, and convert these notes into formal statements only when it becomes clear that the case is likely to go to court. The increasing practice of disclosure of statements, and reliance on them at trials, emphasises the need for accuracy. Under the current Scottish system, there is potential for misleading or inaccurate statements to be recorded in witnesses' names if the officer's interpretation departs from the witness's intention, or if errors are made during writing up or typing. To minimise this risk, I recommend:
10.6.1 In any investigation of a serious crime which could lead to a solemn criminal trial, the norm should be for all statements taken from civilian 20 witnesses to be written or typed out in full and signed by the witness, at or close to the time when the statement is taken.
10.6.2 When the police are required to reveal a civilian witness statement to the procurator fiscal, but no signed version of the statement is available, the information that is revealed should, as far as possible, consist of the exact words used by the witness.
10.7 The first of these recommendations would help to ensure the faithful recording of the witness's statement, which seems to me important given the effect which the statement may have in a solemn trial. This approach has been followed in England and Wales for some time. There, the witness is always asked to read (or hear read) and sign a full (normally handwritten) version of their statement. If the witness does so, the possibility of serious error arising from initial notation or subsequent writing-up of their statement should be reduced.
10.8 Likewise, in summary cases, the practice of taking full statements and having them signed by witnesses will often be beneficial; the police should therefore adopt this practice whenever it is practicable to do so and a proportionate use of their time and the witness's time.
10.9 Currently, "full statements" are requested from the police only when it becomes clear that the case is proceeding on petition or is likely to proceed to summary trial. At that stage, police practice has been to create chronological and polished statements from their notes, as necessary re-wording and re-ordering the words actually used by the witness. Although this practice may have made it easier for both prosecution and defence to use the statements, unless the reworked version is signed by the witness, the resultant risk of inadvertent distortion of the witness's evidence is, in my view, unacceptable.
10.10 It will of course remain good practice for police officers to add explanatory text of their own, for example to offer a translation of local slang or dialect words used by the witness; but it should be clear which words come from the witness and which are explanations by the officer.
10.11 Equally, in summary cases, when a witness's evidence is taken in note form, it will be important for the police to note the witness's own words, just as when a full statement is taken.
10.12 Greater precision in the taking of statements will be made easier by one recent and one anticipated development. Firstly, the National Standard Statement ( NSS) is a template for recording statements in a standard form, split between disclosable and non-disclosable content. This format, which was introduced following the Bonomy report, is now in use by all police forces in Scotland for all statements which require to be submitted to the Crown, and sometimes for formal statements earlier in the investigation process. Copies of the e-version and hard-copy version of the NSS are contained in Annex 5.
10.13 Secondly, an "electronic notebook" or Personal Digital Assistant ( PDA) is currently being piloted in Lothian and Borders Police and under active consideration by other forces. This device allows handwritten text to be inserted directly into a handheld terminal and subsequently uploaded to a secure system. Protection against subsequent alteration is ensured, because text is locked almost as soon as it is written (it is locked in blocks which typically contain just 2 or 3 words). Officers using PDAs in Lothian and Borders are using PDAs to record full statements (not just notes) which are read out to the witness. The witness is then asked to sign the PDA screen to confirm the accuracy of the text recorded in their name. More details about the piloting of the PDAs are contained in Annex 6.
Defining and recording relevant material
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.
10.15 In solemn cases, the same definition should determine material which needs to be listed on the schedules which I recommended in chapter 7. Thus anything which "may be relevant" needs to be mentioned on the schedules.
10.16 The organisation of retention and recording must be secure. Some recent cases have highlighted some difficulties in how the police record and retain material obtained or generated throughout an investigation, which meant that subsequent transmission to the fiscal and disclosure by the fiscal were incomplete, delayed, or both. This was also brought to the attention of the review by procurators fiscal and defence agents. Most of the problems highlighted appear to have been due to procedural or administrative issues, rather than any failure to understand the principal of revelation of all relevant material to the Crown. Police forces should therefore be encouraged to carry out a full review of their systems and practices, in the light of this report, in order to secure clear and reliable systems, backed by effective IT.
Transmission to the COPFS
10.17 If the COPFS is to perform its duty of disclosure to the defence, the police have to reveal their material to the prosecutor. This may be done by passing the material to the fiscal, by letting them inspect it, or by describing it to them (for example, on a schedule). Clearly the police need to transmit in full anything which may be disclosable, whether because it may tend to exculpate the accused or because its disclosure is required as a matter of law (eg statements in solemn cases). Equally, they will also wish to transmit all the important material which makes up the case against the accused. However, there will inevitably be an element of judgement about the margins. The responsibility which this places on the police was set out by LJC Thomson in 1952 (see paragraph 5.2) and I see no need to add to it, except to highlight that again the police should err on the side of revealing rather than withholding information, especially if it is conceivable that it could tend to exculpate the accused.
10.18 On the other hand, the police make use of an extensive and constantly evolving "library" of advisory documents which are available to officers to make use of according to particular circumstance. Reference documentation such as Standard Operating Procedures ( SOPs), Scottish Investigators Guide ( SIG) etc are commonly used tools as an aid to an investigation. Likewise policy documentation such as SIO policy files, Interview strategies, Community impact assessments etc will, on the majority of occasions have no bearing on the case and therefore not be relevant. Reports, advices and other communications between the COPFS and police will usually be of an administrative nature or derivative in that they contain professional opinion and again will usually have no bearing on the case. I would envisage that such documentation would not normally be capable of having any bearing on the individual case or person under investigation. If, however, at the stage of reviewing the content of any such material it appeared to be "relevant" i.e to have some bearing on any offence under investigation or any person being investigated, then it would require to be treated in accordance with retention and revelation procedures.
Retention
10.19 Each individual Scottish Police Force has guidance on the management of and retention of material based on the recommendations contained in the " ACPOS Recommended Retention Periods" ( Annex 7). These guidance notes take cognisance of legislation, or in the absence of legislation, good practice. They give instructions and advice on how long and in what manner information, documents and forms are to be kept. They are kept under review and updated when legislation and procedures change. I would recommend that these guidance notes be reviewed to ensure that they conform to requirements, and also that they should form part of the police training package to ensure that frontline officers are fully aware of their duties and responsibilities of recording, retention and storage of material. A section outlining the responsibilities of officers in charge of investigations should also be included in the code of practice detailing their duties in respect of the reviewing, recording and retaining of material obtained or generated during investigations.
Dedicated Officers
10.20 In large scale investigations such as murders where it is anticipated that the enquiry will generate a considerable amount of material, Senior Investigation Officers should consider the appointment of a dedicated officer to deal exclusively with the reviewing of the information obtained or generated, the preparation of schedules and subsequent revelation to the procurator fiscal. This officer should be suitably trained in revelation and disclosure requirements, and should work closely with the SIO and the procurator fiscal.
10.21 Experience in England and Wales, where these officers are known as "disclosure officers" has proved that it has been beneficial to have experienced investigators with a keen eye for detail and meticulous administrative skills trained to fulfil this role. It has also been observed that dedicated disclosure officers have proved to be a significant aide to the SIO of an investigation, often uncovering crucial material. As in England and Wales the duties and responsibilities of such an officer should be set out in the code of practice.
10.22 The principles of disclosure of course also apply to intelligence-led investigations, which will therefore require the same procedures and practices as other solemn cases, in relation to recording, reviewing, retention, preparation of schedules and revelation to the procurator fiscal. Quite clearly there is potential for a large amount of material to be gathered during the course of intelligence-led operations, particularly Force or National operations.
10.23 A significant amount of this information may be derived from intelligence sources and careful consideration should be given by Senior Investigating Officers, from the start of these larger scale intelligence-led investigations, to appoint a dedicated officer to deal with reviewing, recording and revelation issues. Again close and early consultation with the procurator fiscal will be required. Whatever internal systems are set up by the police to handle material in such cases, it will be necessary to protect the firewalls between intelligence and the investigation, to eliminate the risk of intelligence material inadvertently being disclosed.
Forensic material
10.24 The same rigour should be applied in the recording, retention and revelation of forensic samples and analyses. The police should record what forensic material has been recovered, whether it has been analysed, and the results of any analysis, and inform the procurator fiscal. The procurator fiscal will in turn consider how much of this information needs to be disclosed to the defence, which will depend on the circumstances of the individual case: negative forensic results (eg a fingerprint or DNA sample which the police cannot match) will be of no relevance in many cases, but could sometimes be relevant to a particular line of defence. On occasion the defence may reasonably ask to see the raw results of the analysis as well as the forensic report. Where possible I would encourage the Crown to consider such requests sympathetically.
HOLMES investigations
10.25 The Home Office Large Major Enquiry System ( HOLMES2) is a computer database that has been designed to aid investigation into large-scale enquiries. It can be used by the police to collate and subsequently cross reference all information gathered in a major investigation. The system is server-based and allows a number of users to input, update and access information at the same time. All police forces in the United Kingdom have their own HOLMES2 server.
10.26 HOLMES2 was created to cater for investigations of varying size and complexity and has a number of indices, management tools, document storage and search tools. It also has a customised disclosure facility, though this is currently only in use in England and Wales. This facility allows the dedicated "disclosure officer" to make an assessment of sensitive and non-sensitive items and whether they meet the CPIA disclosure test. HOLMES2 can automatically list and generate the items onto the respective schedules and is a significant tool which aids English "Disclosure officers".
10.27 The software for the disclosure facility in England and Wales has been developed along with comprehensive training packages for disclosure officers and other staff employed within Major Incident rooms. The disclosure facility on HOLMES2 will require to be reviewed by the HOLMES community in Scotland and adapted to comply with Scottish disclosure requirements. Similarly there will be significant training implications for dedicated officers and HOLMES staff.
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