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18. Criminal History records
18.1 Holland v HMA placed an obligation on the Crown routinely to obtain and disclose all previous convictions and outstanding charges for those witnesses that the Crown intends to call at trial. As I explained earlier 32, in my view this does not necessarily apply to summary cases; even for solemn cases the extent of the obligation is not entirely clear, and I believe that an interpretation which required disclosure of these even when they could have no impact on the case would risk being in breach of Article 8. Having spoken to a number of practitioners and taken into consideration the rights of victims and witnesses during the course of the review, I recommend the system set out below.
18.2 In both solemn and summary cases, the Crown should obtain criminal history records for all witnesses whom they intend to call at trial. This is a fundamental first step and is necessary to allow the Crown to consider the potential significance of this information to the case as a whole.
18.3 In solemn cases, the Crown should then apply the McLeod test 33 to each of these records, with only those which may be relevant 34 being disclosed. This would normally include all dishonesty convictions; attempts to pervert the course or defeat the ends of justice and perjury offences; and for any case where the offence(s) are for violent behaviour, then only the victim's (but not the other witnesses') convictions and charges for violence should also be disclosed (including aggravated assaults, breaches of the peace, contraventions of sections 47 and 49 of the 1995 Act).
18.4 If the Crown wished to withhold any of these relevant records, for example because of risk to a witness, they could in theory make a PII application as set out earlier in this report. Also, in any case where disclosure of criminal history records is withheld, the continuing duty to review disclosure should be applied, and the matter regularly reviewed in the light of all the relevant circumstances in the case, including any further issues raised by the defence.
18.5 In summary cases, the defence should be entitled to receive the same information on request. However, as noted in paragraph 9.7, in many summary cases the defence see no need to consider the previous criminal history records of Crown witnesses, and it would therefore be a waste of effort to disclose them routinely. I therefore recommend that disclosure of this information should only be made if it is requested. However, the Crown should still be required to obtain the information, partly for its own purposes, and partly to avoid delays in the event that such a request is made.
18.6 The JCPC drew a distinction between information on convictions and charges that is readily available to the Crown and the police, and similar information - from elsewhere in the UK or overseas - which is not so available. In general I do not believe the requirement for a fair trial requires the police to devote what may be considerable resources to investigating whether a witness has any convictions or outstanding charges in other jurisdictions, though there might be exceptions to this where the police, Crown or defence had reason to believe there might be such convictions on the witness's record. The scope of this requirement will also widen as and when linkages between police systems in different countries are developed further. For example, if in future it becomes as easy to check for convictions anywhere in the UK as to check the Scottish position, then the requirement for the Crown to obtain the information should be extended accordingly.
Children's Hearings
18.7 The system of Children's Hearings was designed to deal with the problems of children in need but, so far as possible, without criminalising them. Many hearings are really concerned with issues of child welfare, even where the child has been involved in some criminal behaviour. The legislation is also designed to avoid giving publicity to the proceedings in a children's hearing (see section 44 of the Children (Scotland) Act 1995). However, there are cases in which the ground of referral to the hearing is that the child has committed a criminal offence, and, on rare occasions, the offence can be serious. Technically, an appearance before a Children's Hearing where supervision or compulsory measures of care are imposed following offending behaviour is not a conviction. Nevertheless, in the course of proceedings there may be either an admission or a finding that the child has committed a criminal offence, and a straightforward application of the decision in Holland would seem to require that that should be disclosed.
18.8 However, as was pointed out in Constanda v M [1997] SC 217 and S v Miller [2001] SC 977, the legislation sets out to hold a delicate balance between the application of principles of welfare and the ordinary protection of the criminal law. In addition, it may not be easy to equate the outcome of a Children's Hearing with any particular criminal offence as normally defined. If the grounds of reference include an allegation that the child has committed an offence and that issue has been referred to and determined by the sheriff, the sheriff's finding may, in effect, establish that a particular defined offence has been committed. Even in such a case, however, the disposal by the Children's Hearing will very often take wider issues and other grounds of referral into account as well. In other cases, when there is no reference to the sheriff, the real effect of the decision of the Hearing may be much less clear. In these circumstances, it seems to me that the question of what, if anything, should be disclosed may be far from straightforward. This whole issue may require further consideration, in the light of the principles and policies of the Children (Scotland) Act 1995. In the meantime, in my view, the Crown should not simply apply Holland and make disclosure automatically. It will be necessary to give careful consideration to the extent to which a decision of a Children's Hearing should be disclosed and, if there is any doubt, to refer the issue to the court under the PII procedures.
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