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12. Disclosure for solemn cases - schedules of material
12.1 I recommended in chapter 7 a system of schedules of material for solemn cases, modelled on the system in use in England and Wales. One advantage of a system of scheduling is that it would provide a structure for these decisions to be made, recorded, communicated and checked. This would impose a discipline on the handling of information which would reduce the risk of exculpatory material being overlooked.
12.2 In England and Wales the schedules are only required to cover "unused material" - ie material which does not form part of the case the prosecution intends to present. This is because the "used" material - the prosecution case - is submitted to the CPS and disclosed to the defence separately. In Scotland the distinction between "used" and "unused" material is less clear cut, not least because the rules for disclosure of the prosecution case are not as clearly defined. I therefore recommend that in Scotland, as already happens in Northern Ireland, all material that may be relevant to a solemn case should be listed on a schedule, without a distinction between "used" and "unused" material. On the other hand, the system should be the same as that in England and Wales in the following respects:
12.2.1 The police should include on the schedules all items that "may be relevant" - ie anything which could have a bearing on the outcome of the case - and should err on the side of including material in interpreting this requirement;
12.2.2 There should be one schedule for non-sensitive material and another for material which is "sensitive" - ie if its disclosure would create a real risk of serious prejudice to an important public interest.
12.3 The schedules will have twin purposes: to ensure that the fiscal is aware of all material held by the police which may be relevant to the case; and secondly to inform the defence what material has not been provided to them. The code of practice should set out the procedures to be followed. The initial schedules should be prepared by the police. All items which may be relevant will need to be listed on one or other schedule, and there will need to be a meaningful indication of the content of most items, apart from where the content is obvious from the title of the item or otherwise. The police should also be invited to indicate which items they consider disclosable, ie all material evidence or information which would tend to exculpate the accused whether by weakening the Crown case or providing a defence to it.
12.4 The Crown will then require to go through the schedules and consider:
- whether they wish to see any of the items for their own purposes;
- whether they agree with the police classifications of items as disclosable or non-disclosable and as sensitive or non-sensitive;
- whether the descriptions of items are sufficiently informative and fit-for-purpose, including for defence use in the case of the non-sensitive schedule.
12.5 The Crown will add their comments and revisions to the schedules and then send a copy of the non-sensitive schedule to the defence.
12.6 It will be open to the defence to apply, informally to the Crown or formally to the court, for disclosure of any item on the schedule in the usual way. However such requests should not require to be granted unless the defence can justify why there is a need for disclosure.
Police responsibilities
12.7 The statutory code of practice should make it clear that the Senior Investigating Officer ( SIO), Reporting Officer ( RO) or dedicated officer will be responsible for ensuring that the material has been reviewed, and that the schedules prepared and submitted are complete. Close liason with the procurator fiscal, particularly in large scale investigations is also vital.
12.8 In some cases the schedules would not be created until the fiscal confirms that the case will proceed on indictment, but in others, eg lengthy investigations of serious crimes, the schedules would be prepared and submitted as soon as reasonably practicable after the submission of the police report to the fiscal. There will then be advantages in starting schedules at an early stage and the SIO/ RO will need to consider at what stage they should be prepared, and if a dedicated officer should be appointed to prepare them. It is not necessary to maintain lists of material from the start of all investigations but where it is anticipated that a large amount of material is going to be gathered this would be advisable.
Checks, reconciliation and certification
12.9 This system will provide a structure but will not remove the need for care to be taken by the police, the Crown and indeed the defence, to ensure that all material is handled and communicated appropriately. When preparing to operate the system of schedules, the police and Crown Office will need to establish how to organise the flow of information and the checking of schedules.
12.10 Similarly it will be necessary to ensure that the defence receive and acknowledge receipt of the disclosed materials. I understand that there have been cases in which there has been a dispute about what the defence have actually received and when. Unless an alternative way to ensure clarity can be devised, probably the best arrangement would be for the defence to collect materials from the Crown and to sign to confirm receipt and where material has been viewed by them that some form of acknowledgement is made.
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