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13. Disclosure for summary cases
13.1 Recently, as part of the summary justice reform programme, the Lord Advocate has announced the Crown's intention to issue a summary of evidence with the complaint in all summary cases. This system has been piloted and has met a mixed reception: some defence agents welcome this early indication of the strength of the Crown case; but others say the summaries provided have not reliably given a fair summary of all the salient points, and consequently that they feel unable to advise their clients properly before receipt of a full set of statements.
13.2 As I explained in chapter 9, I see this as a very significant development. It seems to me that the practice of providing a summary of evidence at the earliest possible stage is right in principle and should be welcomed and built upon. Two important questions follow:
13.2.1 How can it be ensured that the summaries provided are fair, complete and reliable? and
13.2.2 What additional disclosure would then need to be made to the defence following a plea of not guilty?
How can it be ensured that the summaries provided are fair, complete and reliable?
13.3 I understand that the Lord Advocate's intention is that summaries of evidence should be derived readily from the report by the police to the procurator fiscal 23. If the summary is to perform its function, enabling the defence to give early advice to their client and promoting speed and efficiency, it will require to give a reasonably full account of the evidence available at the time of the report, including:
- the basis of the case against the accused;
- the main witnesses in the case; what type of notes or statements (if any) has been taken from each, and the main points that each will speak to;
- whether there is CCTV which supports the prosecution case;
- whether forensic information has been recovered and if so whether it has been analysed 24; and crucially
- whether there is any material evidence or information which would tend to exculpate the accused whether by weakening the Crown case or providing a defence to it, and if so, the nature of this.
13.4 I recommend that amendments should be made to the standard prosecution report template 25, and any other (abbreviated) report templates agreed for use by the Crown and the police, to prompt for this information, and a police officer should be required to confirm the completeness and robustness of the information provided. Once again, this highlights the importance of the training which is to be provided to police officers, which should emphasise the importance of the summaries of evidence.
13.5 This may represent an expansion of the requirements for the template, but this seems to me to be necessary for the system to work as intended. If the summaries fail to gain credibility as being a reliable and fair source of information for the defence and the accused, then they will fail to achieve the benefits they have been designed to secure.
What additional disclosure would then need to be made to the defence following a plea of not guilty?
13.6 The summary, which importantly must include all material evidence or information which would tend to exculpate the accused, should provide the defence with good information about the evidence in the case, sufficient to enable them to give initial advice on their client's plea. However, in the event of a plea of not guilty (or if a case is continued without plea to allow the defence to pursue disclosure issues first), the defence will need the ability to access further information in order to prepare for trial. I recommend that following a plea of not guilty the defence should continue to receive a provisional list of witnesses covering those the Crown intends to call and any who might be expected to support the defence. It should be possible to provide this considerably faster than the timescale allowed for post-plea disclosure under the existing system. A plea of not guilty should also trigger action by the Crown to disclose, prior to the Intermediate Diet, a provisional list of productions - with the ability to inspect any of the productions on request; and all information which meets the McLeod (or statutory) disclosure test if it has not already been provided with the complaint - and this could include any statements taken from witnesses who dispute or doubt the Crown's case.
13.7 In most summary cases, this level of information should be sufficient. However, I am aware that in most summary cases following a plea of not guilty, the Crown's current practice is to disclose also the statements and criminal history records of all Crown witnesses. As I have explained, I consider that this goes beyond the minimum required by Article 6. It should therefore be open to the Crown to decide to what extent to continue these practices for summary cases in the sheriff court and in the district court.
13.8 I comment further on criminal history records in chapter 18. For statements, I recognise that in practice, this may mean that the future disclosure protocol may be determined mainly with regard to efficiency, clarity and trust between the parties, taking account also of developments in technology such as the police PDAs which I describe in chapter 10. In the short term this may largely be decided by the programme for summary justice reform. I have been kept up to date with the work which has been proceeding to implement the reforms, and this work includes proposals which will affect the police practice in reporting offences and the management of prosecutions by the COPFS, including the methods of giving notice of the prosecution case. One possible effect may be to facilitate the production and redaction of statements so that in future their disclosure when required need no longer represent a bottleneck and a cause of delay in summary proceedings.
13.9 As noted in chapter 9, in cases (if any) in which disclosure of Crown witness statements is not provided following a plea of not guilty, it would need to be possible for the defence to request further details of notes or statements recorded from witnesses. Although I see nothing in the law on summary cases which obliges the Crown and police to provide these as well as the summary of evidence, it might in practice help to remove doubt and uncertainty if they complied with these requests and provided such statements which already existed. Thus for civilian witnesses, and occasionally where police witnesses have recorded their observations in writing, the defence should be entitled to ask for copies of text already recorded, for example the notes from police officers' notebooks. Such requests should initially be made informally to the Crown, with an explanation of why the greater detail may be important for preparation of the defence. I would encourage the Crown to be as open as possible when responding to such requests, even when there is no legal requirement to disclose 26. Over time, it could then be that confidence in the summaries of evidence grew to the point where such requests were made less frequently.
13.10 For police witnesses, it is rare that any written "statement" will exist in addition to the summary, and I see no benefit in requiring officers to produce these on request. The "statement" would in all probability simply be a restatement of the information already provided in the summary.
13.11 Whatever system is adopted, it will of course remain a responsibility for the Crown and the defence to ensure that where, exceptionally, there are other pieces of information which need to be considered in the trial, these are identified and disclosed. Similarly, the defence will remain entitled to ask the court to order recovery of documents in cases where no agreement can be reached with the Crown.
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