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14. Redaction, and resolution of disputes
14.1 The purpose of redaction has been explained earlier. This redaction is usually obvious on the face of the document and typically comprises information which is normally not material, such as telephone numbers, workplace addresses etc of witnesses. This practice of redaction is an obvious means of enabling the prosecuting authorities to meet their obligation to ensure that the defence receive the material that they require for the proper preparation and presentation of their defence, while also ensuring that the Crown complies with other Convention rights.
14.2 Differences of opinion will, however, inevitably arise about the degree of editing which is appropriate and acceptable to the defence. At the outset I should like to make two points. The first is that it would be desirable to have well-understood guidelines about routine redactions. The second is that it is important to ensure that there is adequate time and sufficient communication between prosecution and defence to allow such disputes to be resolved, so far as possible, without recourse to the court.
Current practices
14.3 The approach to the redaction of witness statements is publicly set out in the Crown Practice Statement on Disclosure in High Court Cases ( Annex 10), which states:
"…it shall be open to the Crown to redact the statement to obscure information of a confidential nature contained within the statement, the disclosure of which the Crown considers not to be necessary for the preparation of the defence…but any redaction shall be obvious on the face of the statement."
14.4 This approach has now been extended to all cases (solemn and summary) and guidance notes are issued to COPFS staff on redaction of witness statements, with further guidelines being drawn up on the redaction of other documentation such as medical records.
14.5 The initial redaction of personal information in statements is undertaken by the police, with the COPFS making a further assessment of the statement prior to its disclosure to the defence. Recently the procedures for this have been streamlined by the introduction of the National Standard Statement ( Annex 5). When taking an initial statement in this format the police split the information into disclosable and non-disclosable sections prior to revealing it to COPFS. COPFS (who receive the full statement) thereafter do a further check of the whole of the statement to confirm that (i) all appropriate irrelevant and sensitive material has been removed from the disclosable sections and (ii) that no information contained within the non-disclosable sections requires to be disclosed in terms of the Crown's obligations under McLeod.
14.6 Similar arrangements are applied when consideration is given eg to selecting which parts of medical record information require to be disclosed. In general, it will be clear which parts of such documents are relevant to the case and of potential value to the defence, and only this material will be disclosed. As with other types of redaction, the final decision on what to redact always rests with the prosecutor.
14.7 Where the Crown have redacted documents, it is usually clear to the defence, from the context, what type of information has been has been removed. If, however, it is not clear to the defence what has been removed, either because no inference can be drawn or because a large quantity of text has been removed, the defence and the prosecution should be encouraged to proceed by discussion.
Resolution of disputes
14.8 Where the defence are not satisfied with the redacted information, the defence and Crown should be encouraged, in the first instance, to try to resolve the issue by discussing it as openly as possible. Where that discussion fails, there is no alternative but to refer the problem to the court.
14.9 In Scotland, at present, if the defence disagree with the Crown's view that something is not disclosable, they can petition the court for commission and diligence for the recovery of documents.
14.10 The system of "Public Immunity Interest" hearings which I recommended in chapter 6 of this report should be seen as complementary to these existing procedures. It may be possible for PII questions to be addressed within the existing structure of preliminary hearings, at least in the more straightforward cases.
Comment
14.11 I recognise that in some cases redaction may be a source of irritation to the defence, for example in cases where they do not think that there is any sensitivity about the address of witnesses but find that they have to make arrangements to contact witnesses through the police or procurator fiscal 27. I recognise also that redaction may be a time consuming exercise for COPFS staff. It does however seem to be an appropriate means of trying to reconcile competing interests and I believe that this approach should be continued. I would however recommend that the internal guidelines referred to should be checked in light of this report, to ensure that they clearly and accurately set out guidance on redaction and including (i) when information should be classified as irrelevant and sensitive and (ii) the proper practice to follow where information is relevant and sensitive. As noted in 14.2, I also suggest that the guidelines should if possible be made public, so that all parties can share a common understanding of how redaction is carried out.
14.12 Despite the greater practical complexity, in principle the same approach applies to the redaction of videotape material such as recordings of police interviews with vulnerable witnesses (see also chapter 17).
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