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3. An Introduction to the problem
3.1 It is a long-established rule in the Scottish legal system that the Crown has an obligation to give the accused notice of the case against him, that is, to tell him what charges he faces and what is the evidence which the Crown intends to bring to prove the charges. One way of approaching my remit would be to review all the rules governing notice of the prosecution case with a view to treating disclosure as an aspect of those rules, as is done in some jurisdictions 5. I have taken the view, however, that it is neither necessary nor helpful to take that approach: the rules governing the giving of notice of the case which the prosecution intends to make are clear and well understood. For convenience, they are summarised in chapter 11 of this report. Disclosure has the additional purpose of ensuring that any exculpatory material is identified and made available to the defence, and in my view greater clarity is likely to be achieved by treating that duty separately. I consider later how the obligation to disclose should be defined: for the moment I use the term "exculpatory" in a broad sense, to include any material which may undermine the prosecution case, assist a reasonable line of defence or raise a possible doubt.
3.2 This apparently simple aim raises a number of practical challenges. In a straightforward case, there should be no difficulty in identifying exculpatory material. If one witness claims to identify the accused as perpetrator of an assault and another says that the assailant was not the accused, or that identification was impossible in the conditions, that must be disclosed. In such cases, the problem is to devise efficient and practical means of ensuring that the duty is understood and reliably carried out at all levels of investigation and prosecution. In cases of greater complexity there can be severe difficulty in coping with the amount of information recovered in an investigation. As will be explained, experience of such trials in England and Wales has contributed to a strict approach to the requirement of disclosure. It is however, I think, important not to allow the difficulties encountered in these complex cases to distract attention from the basic requirement of a reliable and, so far as possible, simple, system. In the more complex cases, the challenge of ensuring that exculpatory material is reliably defined and identified will pose greater difficulty. If the police assemble a great bulk of material in the course of an investigation, what kind of check is required to make reasonably sure that anything exculpatory is noticed, and who should do that checking? What roles should be performed by the police and the prosecution? What are the limits to their duties and how exactly should they be defined? What duties, if any, fall on the defence and the courts?
3.3 The problem is compounded by two factors. The first concerns trust between the prosecution and the defence. The Crown in Scotland has always accepted that it has a duty to act fairly, and has long recognised that this duty should include disclosure of exculpatory material. Unfortunately, there have been a number of cases in which it has emerged that material which should have been disclosed has not been. Defence practitioners have expressed doubts about the extent to which current police attitudes and practices encourage or enable police officers to perform the duty of identifying and passing on potentially exculpatory material fully and properly. If the duty of investigation is to be properly performed, the investigating officer should pay attention to the weaknesses in the case against a suspect as well as to its strength. It should be emphasised that at present, police training does include emphasis on the importance of disclosure, and conscientious and able officers will perform that duty. However, doubts of the kind mentioned have been expressed and should be tackled. For reasons which I shall elaborate later, it is inevitable that the police and the prosecutor have to "separate the wheat from the chaff" in a wide-ranging investigation and it is important that they should be trusted to do so properly.
3.4 The second complicating factor concerns the role of the defence. Although the duty of the Crown to act fairly has been recognised in the past, the traditional assumption has been that, fair notice of the case having been given, it was for the defence to investigate it and look for exculpatory evidence. That has been regarded as the essence of an adversarial system of proceeding. It is widely thought that the extent to which the defence carry out that function of independent investigation has been much reduced in recent years. That is the view of many judges and sheriffs and is not disputed by most of the defence practitioners to whom I have spoken. Many reasons have been suggested for this development but one recurrent theme is that the current legal aid arrangements do not encourage independent investigation by the defence and, indeed, may discourage it. Legal aid is outside the scope of my remit and I am not in a position to comment on the validity of these arguments. I do, however, want to point out that any reduction in independent investigation by the defence throws an even greater emphasis on the Crown's duty of disclosure. If the result is that there is a greater requirement for resources to enable the Crown to perform the duty, and consequent greater expense, that is a cost which should be borne in mind when dealing with legal aid policy. I should add that some of those with whom I have discussed this issue regard the development as threatening the foundation of the adversarial system. While I think that those fears go too far, I agree with the basic contention that an adversarial system can only work fairly if the defence are really able to perform their proper role in the process of investigation as well as trial.
3.5 In addition, there are cases in which it really is difficult to decide what should and should not be disclosed. As explained later, what has to be disclosed is material information, and there may be substantial work needed to identify what is material and what is not. There may be considerable amounts of diverse material, including differing versions of witness statements, which may require to be checked. Further, as discussed in chapters 6 and 14, it may be necessary to find a way to deal with "sensitive" material, that is, material whose disclosure may damage individual or public interests. The need to deal with this material may substantially add to the complexity of the task facing the police and the Crown: a number of kinds of sensitive information may need to be removed from audio and video recordings as well as from documents, and considerable care is necessary to ensure that all sensitive material is removed, while also ensuring that only the material which is really irrelevant or sensitive is exempted from disclosure. Further problems arise if any of the sensitive material is also potentially helpful to the defence, and these are also discussed later in detail.
3.6 Nevertheless, I think that before entering into areas of greater legal difficulty, I should repeat and emphasise that in the great majority of cases there should be no difficulty in deciding what should and should not be disclosed and very few cases in which material other than, for example, the addresses of witnesses who may feel vulnerable or threatened has to be withheld. This is particularly true in summary cases. As I have noted above, there have been a number of occasions recently when it has emerged that material which should have been disclosed has not been, and a considerable number of defence practitioners have complained that the system is not working properly and that the requirements are not being observed. In almost all of these cases, however, the main reason for the failures is not any difficulty in defining or understanding what should be disclosed. Rather, the failures are practical and administrative.
3.7 Disclosure therefore poses both conceptual and practical challenges, which this report considers. With these considerations in mind, my approach to writing this report has been to begin with a general discussion of the issues ( Part II) and to draw out some key recommendations about the ways in which a solution might be achieved, and later ( Parts III and IV) to expand these themes and set out further practical proposals for implementation in a more condensed and summary form. I apologise for the length of the initial discussion, but I think that it is important to be as clear as possible about the principles which lie behind the duty of disclosure.
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