« Previous | Contents | Next »
Listen
17. Visually-recorded interviews and CCTV footage
17.1 During the review I have been conscious that hitherto the development of the law and practice of disclosure has largely been driven by questions about disclosure of documents of one kind or another. However, the use of technology in criminal trials is growing rapidly, and it has been necessary for me to consider how the same principles can apply to other forms of information, especially visual-image recordings.
17.2 Visual-image recordings including CCTV provide very powerful information, which can have an immediate effect on the course of a trial. Whether the evidence they provide is against the accused, in his favour, or debatable, defence teams will normally wish to see it at first hand early in their preparation of the case. Where the images are clear and relevant, they will often lead quickly to the case being concluded in one way or another. Moreover, unlike other technologies such as DNA, the main points from a visual-image recording cannot be summarised on paper without losing their essential nature and impact. It is thus important that disclosure procedures and protocols can be applied to visual-image recordings as to documents.
17.3 However, disclosure of visual-image recordings poses two issues which are not faced to the same degree with documents. First there is the problem of ensuring that there is equipment available on which the recording can be played - especially if it has been recorded by a camera of a non-standard type. This has caused difficulty and delay for prosecution, defence teams and courts alike, and I know the issue is being considered actively by ACPOS and others. Contributors to the review have emphasised the importance of a resolution to this problem. It is peculiarly irritating to know that evidence which is likely to lead to a quick resolution of a prosecution is available but cannot be accessed, and I strongly urge that efforts continue to address the difficulty.
17.4 The second issue is more fundamental: visually-recorded footage, especially recordings of vulnerable witnesses, may be unusually sensitive. Just as with a sensitive document, this cannot normally outweigh the requirement for recordings with potential exculpatory value to be made available to the defence. However, it may commonly be necessary to effect disclosure not by passing a copy of the tape to the defence, but by arranging for them to view it under controlled conditions.
17.5 A further question which has been raised about CCTV evidence concerns whether entire tapes must be viewed by the defence when the relevant part of the footage may last for a few minutes or even less. In my view there is no requirement for the prosecution to disclose an entire tape, but only the relevant part of it. However, where an extract is provided the defence should be told the duration of the entire tape; in the usual way, they should be entitled to apply to the Crown and if necessary the court for additional footage, provided they can justify such a request.
« Previous | Contents | Next »