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11. Advance disclosure of the prosecution's case
11.1 As I mentioned in chapter 3, the police and the Crown require to give notice of the prosecution case in accordance with statutory requirements, as well as to identify and disclose any exculpatory material. The prosecutor has to decide what case is to be made and consequently what notice has to be given before the question of disclosure of exculpatory material can be dealt with and it is perhaps useful to summarise the requirements here.
11.2 The prosecution case is comprised of material on which the Crown intends to rely at trial. This will include all the documentary and label productions to which the Crown intends to refer at trial and information regarding witnesses that the Crown intends to adduce at trial, whether through oral evidence, evidence contained within a statement of uncontroversial evidence, or a joint minute of admissions. Currently, different procedures apply, depending on whether the case is proceeding on indictment or summarily. A summary of the current timelines for solemn and summary cases is included at Annex 8. For summary cases where the accused has been liberated, Annex 9 contains the proposed revised timelines under the Executive's Summary Justice Reform programme.
Cases proceeding on indictment
11.3 Section 66 of the Criminal Procedure (Scotland) Act 1995 provides that the accused should be served with a copy of the indictment containing the charges against him accompanied by a list of the names and addresses of the witnesses to be adduced by the prosecution and a copy of the list of productions.
11.4 Apart from cases in which the accused has already indicated that he will plead guilty, a notice is served on the accused with the indictment, requiring him to answer the indictment on specified dates. The defence also receives copy lists of witnesses and productions. Section 67 of the 1995 Act provides that the list of witnesses should consist of the names of the witnesses together with an address at which they can be contacted for the purposes of precognition. There are further statutory provisions dealing with additional witnesses and with special cases where notice is not required.
11.5 Following the decisions in Holland and Sinclair, the defence also receives all statements taken from Crown witnesses by the police and details of any Scottish criminal history records held in respect of those witnesses. I have commented on disclosure of these items elsewhere in this report.
11.6 Section 68 of the 1995 Act provides that the accused is entitled to see the productions according to the existing law and practice in the office of the sheriff clerk of the district in which the court of the trial diet is situated or, where the trial is to be in the High Court in Edinburgh, in the Justiciary Office.
11.7 Again, in terms of section 67(5) of the 1995 Act, the Crown can seek leave of the court to put in evidence any production not included in the list of productions lodged by it provided that written notice has been given to the accused not less than two clear days before the day on which the jury is sworn to try the case.
Cases proceeding summarily
11.8 There is no requirement within the 1995 Act, for the Crown to provide details, in advance of trial, of the witnesses that the Crown intends to adduce at trial or the documentary and label productions that the Crown intends to refer to at trial 21. Notwithstanding the lack of statute on this point, the Crown's current practice 22, partly derived from a view that the principles of Holland and Sinclair ought to be applied directly to summary proceedings, is to disclose a provisional list of witnesses, full Crown witness statements, and any previous convictions and outstanding charges of Crown witnesses, once there has been a plea of not guilty. I set out my recommendations on alternative arrangements for summary cases in Chapter 13.
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