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15. The Unrepresented accused and Protection of disclosed material
15.1 As I have already identified, it is important to ensure that the accused's right to a fair trial under Article 6 of the Convention is balanced appropriately against the rights of victims and witnesses under Articles 2 and 8. This can be a particularly delicate balancing exercise where the accused has, for whatever reason, chosen to represent himself, because disclosure is then directly to the accused rather than to a defence solicitor who can himself ensure that it is used appropriately.
15.2 The decision of the ECtHR in Foucher v France [1997] 25 EHRR 234 para. 20 indicates that in principle the unrepresented accused has an equal right of access to the case file, although the arrangements for providing access may be different. The general principles of a right to a fair trial apply whether the accused is represented or not. The problem is, I think, to find means which can assist in ensuring that the rights of victims, witnesses and other parties are protected as far as possible. Two existing arrangements are the limitations on the type of case in which an accused can represent himself; and the provision of disclosure by allowing access to material rather than providing copies of it. I consider below whether these should be strengthened by a statutory provision making misuse of disclosed material a criminal offence.
Limitations on the Cases in which an accused can represent himself
15.3 The Criminal Procedure (Scotland) Act 1995, section 288C makes provision for the prohibition of an accused representing himself in cases involving certain sexual offences. The principal offences are rape; sodomy; clandestine injury to women; abduction of a woman or girl with intent to rape; assault with intent to rape; indecent assault; and sundry offences of a similar character. Under subsection (4), the court can also order any other offence to be treated in the same way, if it is satisfied that there appears to be a substantial sexual element in the alleged commission of the offence.
15.4 In terms of the 1995 Act, where an accused in such a case does not engage a solicitor for the purposes of his defence at trial, then the court will appoint one. There is no authority to indicate that such a practice is contrary to the accused's right to a fair trial under Article 6 of the Convention. I have considered whether or not it is necessary to recommend the extension of these provisions to cover other offences but have reached the conclusion that it would not be appropriate to extend the provision purely to restrict the material which can be disclosed to an unrepresented accused. Any strengthening of this section of the 1995 Act should depend primarily on considerations of the conduct of trials, rather than disclosure.
Disclosure through access to material
15.5 In all cases where the prosecuting authorities have an obligation to disclose material to the defence, this can be satisfied through either (a) providing copies of such material to the defence or (b) providing suitable access to view the material. In the normal course of a case, I would expect that documentary material, videos, CCTV and DVD recordings would be copied to the defence as this should be a relatively straightforward process. There are, however, certain types of material that are not routinely copied, such as DVDs of VIPER parades, indecent images of children in contravention of sections 52 and 52A of the Civic Government (Scotland) Act 1982 and video interviews of victims and witnesses (see also chapter 17). For such material it is more appropriate to effect disclosure by allowing access to the material.
15.6 I see no reason why the practice of disclosure through access rather than provision of copies cannot be used more widely where the accused is unrepresented, provided that the material accessed is the same material as would be provided to a legal representative. Obvious examples would include copies of CCTV footage, which might contain individuals not involved in the proceedings; medical records; and photographs of the victim.
15.7 Whether access is made available at the relevant police office or procurator fiscal's office is a matter best left to the consideration and agreement of the relevant offices, as this may be determined by the individual circumstances of each case. I would, however, comment that the police are in the best position to ensure that the person to whom they are giving access to material is in fact the accused person. In addition, there might be greater security implications if such access were supervised by COPFS staff rather than trained police officers.
Safeguards against misuse of disclosed material
15.8 Safeguards against the misuse of disclosed material by a solicitor or advocate are already in place, but there is no corresponding safeguard in place governing the use that an unrepresented accused can make of disclosed material.
15.9 A legal representative is bound by a Code of Conduct, which inter alia governs the use of disclosed material. Article 11 of the Law Society Code of Conduct in Criminal Work is reproduced at Annex 11. The guidance note from the Law Society which accompanies this article, states that solicitors should not give copies of precognitions, statements, documents or recordings to the accused or third parties unless there are exceptional circumstances justifying a departure from this general practice. Examples given of such exceptional circumstances include cases of particular complexity, necessitating giving the accused copies of documents to allow proper presentation, such as in a fraud case.
15.10 It is also worthy of note that, before a solicitor can provide copies to the accused, he must first refer the matter to the Law Society's Professional Practice Department for guidance and agreement that such exceptional circumstances apply. Furthermore, should approval for disclosure be made, the solicitor must then ensure that a written record is kept of the reason for the documents, materials or recordings being given to the client or third party and of the fact that the recipient has been advised of the terms of the Code and the conditions of possession.
15.11 Further additional safeguards are contained in Article 12 of the Code of Conduct in Criminal Work which provides guidance in relation to the retention and destruction of material.
15.12 Equally, the conduct of Advocates is governed by the Faculty of Advocates and an advocate must, at all times, show himself "to be worthy of the trust of those who deal with him/her: his/her client, his instructing solicitor, judges, other members of the legal profession (especially those who act for an opposing party) and the public generally". The Guide to the Professional Conduct of Advocates issued by the Faculty of Advocates does not specifically provide guidance in relation to the use of disclosed documents, materials and recordings relating to the case, but the general principle, noted above, applies.
15.13 The main issue therefore concerns misuse of disclosed material by accused persons or third parties. If an accused, or a third party, were to use material provided to them by the prosecuting authorities to intimidate or even threaten a witness, then it is open to the Crown to prosecute that person for attempting to pervert the course of justice. This would not, however, cover the case where the accused, or third party, misuses disclosed material in other ways, for example, to embarrass the witness in the community.
15.14 In England and Wales, sections 17 and 18 of the CPIA make provision for the confidentiality of disclosed information. In essence, section 17 sets out that, where an accused is given or allowed to inspect a document or other object as part of the disclosure process, then the accused may only use or disclose that object or information (a) in connection with the proceedings for which the material was disclosed, (b) with a view to the taking of further criminal proceedings (for instance, by way of an appeal) or (c) in connection with such further proceedings.
15.15 Section 18 provides that it is a contempt of court for a person knowingly to use or disclose an object or information recorded in it if the use or disclosure of it is in contravention of section 17 of the CPIA. Both the magistrate's court and the Crown Court have jurisdiction to deal with the person who is guilty of contempt and the forum is determined based on the forum of the proceedings in respect of which the material was disclosed. Where dealt with by the magistrate's court, the person guilty of contempt is liable to a period of imprisonment not exceeding 6 months, a fine not exceeding £5,000 or both. Where dealt with by the Crown Court, the person is liable to a period of imprisonment not exceeding 2 years, a fine or both.
15.16 Introducing similar legislation in Scotland would be a logical companion to a more rigorous system of disclosure by the prosecution authorities. Given the increase in the amount of personal information which may require to be disclosed in different types of cases, I would recommend that a similar offence be created in Scotland. This would require a statutory provision setting out (a) the extent to which an accused can use or disclose material provided to him by the prosecuting authorities and (b) that use or disclosure of material for any other reason is an offence.
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