7. Decision making
7.1 If disclosure is to be limited to information which is relevant and material, someone will have to exercise judgement in deciding what should and what should not be disclosed. Since the prosecution authorities have all the information which may be disclosable, it is inevitable that they will require to exercise some discretion in the process of decision as to what is disclosable, because no one else is in a position to make the decision, at least initially. I do not think this observation is in conflict with Rowe and Davis: what that case decides, I think, is that the prosecution cannot at their own hands decide not to disclose something which otherwise passes the test for determining what is disclosable, however that test is formulated.
7.2 It follows that someone must decide which documents and items are disclosable and which are not. I did consider whether this process could be simplified by devising a categorisation based on types of material: some which should automatically fall to be disclosed; some which would not normally be disclosed; and others on which no presumption could be made in advance. However, on consideration I have concluded that it is impossible to devise a classification which would be really useful and reliable: any list of "normally disclosable" documents would inevitably be superficial, and would risk leading to too much attention being placed on those within the list, and not enough on those outside it. The best approach, in my view, is to make it absolutely clear that the prosecution authorities have a responsibility to consider each document or item on its own merits, and decide whether it has potential exculpatory value.
7.3 As was said in Smith and recognised in all later cases, there is inevitably an element of judgment involved, which cannot be completely reduced to a simple fixed rule. It is therefore necessary to set up a system to ensure, so far as possible, that the decisions are taken at the right level, on the basis of a proper understanding of the reasons why disclosure has to be made, and that there is a sufficient record of what has been decided. In the submissions made and some of the discussions, it has been strongly urged that there have been a number of recent cases in which disclosure which should have been made was not made. It has not been possible to verify such claims but, as I previously observed, there is no reason to doubt that some such cases have occurred. So far as can be judged from the information I have had, it seems to me that the origin of the fault has lain in a lack of understanding of what is required and why. In some of the cases complained of, the fault may have been that disclosure was made late rather than that it was not made at all, so that the importance of timeous disclosure also has to be emphasised.
7.4 It also seems to me inevitable that, in the absence of some general system of judicial supervision of the process of investigation, and despite Rowe & Davis, some of the decisions will be made by the police themselves. This starts at the level of initial investigation because in any significant investigation police officers will receive a great deal of information, much of which may be immediately seen to be irrelevant and may not even be recorded at all. It follows that some understanding of the requirements of disclosure is necessary at all levels in the police service, increasing, of course, at senior levels. It is particularly important to try to convey to the officers that dealing with disclosure issues should not be regarded as a bureaucratic intrusion into their activities but an essential part of their function and service to the public. To some extent the burden on police officers can be eased by providing assistance in the form of instructions and standard documents, as is done in England and Wales, and by emphasising that when there is any doubt, the police should pass the information to the procurator fiscal so that the decision can be taken by him. However, it is not possible to define what kind of materials may undermine a prosecution case or assist a defence case in a way which will substitute entirely for the exercise of judgement in the individual case, and judgement requires understanding of the nature of the task and the reasons why it has to be done. Police training is therefore a fundamentally important part of the package. The final decision as to what is to be disclosed will be taken by the procurator fiscal or Crown counsel so the position can be summed up quite simply: the police should tell the procurator fiscal everything that they know, apart from the totally and manifestly irrelevant, and the responsibility for discriminating between disclosable and non-disclosable material should lie with the prosecutor.
7.5 A reliable disclosure system therefore needs to address revelation of disclosable material by the police to the Crown, as well as disclosure by the Crown to the defence. Flaws and insecurity in either part of the process can undermine the effectiveness of the disclosure system overall. I have noted above that decisions and judgements will inevitably be taken by police officers and by the Crown. The obvious next question is whether safeguards can be put in place to minimise the risk of error in these decisions, and to maximise the scope for reversing any that are wrongly called. The system in operation in England and Wales, which is set out in Annex 4, does this by providing for the preparation of schedules. Briefly, the police are required to list all material which "may be relevant" on a pair of schedules (for non-sensitive and for sensitive material) which they pass to the prosecutor, and the prosecutor is required to go through the schedules and confirm on them whether each item listed is "disclosable". This imposes a discipline on the handling of information which in itself reduces the risk of error. In addition:
- The completeness of revelation is promoted by requiring the police to apply a test (material which "may be relevant") which is far wider than the disclosure test later applied by the Crown (material which may be capable of undermining the prosecution or assisting the defence); and
- The completeness of disclosure is promoted by disclosing the schedule of non-sensitive material to the defence, allowing them to make representations if they consider anything listed may be helpful to their client's case.
7.6 It is clearly necessary to keep records of material obtained during an investigation, except possibly material which is so obviously irrelevant that there can be no question of it figuring in any subsequent proceedings. It is also obviously desirable to provide police officers with a structured procedure within which decisions can be made and recorded. Nevertheless, I have had some doubts about the creation of schedules, because it does seem to me to be potentially over-cumbersome. I would therefore have preferred to be able to recommend a simpler system. It is, however, difficult to do so, and as a result something very similar to the English system seems to be required for all solemn cases.
The role of the defence
7.7 A further important question is how to allow the defence to convey information about their thinking to the prosecutor, in order to inform and stimulate decisions on disclosure which accurately reflect the intentions of the defence. In most cases it is likely to be obvious to the Crown whether any material they hold is potentially exculpatory, but sometimes there will be unexpected lines of defence which the prosecutor could not reasonably foresee, and in these cases advance notice by the defence will put the prosecutor in a better position to judge what material needs to be disclosed. There is no doubt that it can be to the advantage of the defence to provide such a statement if there is a particular and positive line of defence and the defence are looking for material to support it. Any system of disclosure therefore needs to enable and encourage the defence to make an advance statement of their position whenever they perceive that this would help to secure fuller relevant disclosure and a fair trial for their client.
7.8 The statutory system in England and Wales goes further than this. Under the CPIA, the provision of a defence statement in response to initial disclosure is mandatory in all Crown Court cases, and the statement is required to specify the respects in which the defence takes issue with the Crown case. As I understand the position, that requirement was intended not only to assist in the process of disclosure, but also to help in case management. However, discussion with practitioners has indicated that in the majority of cases defence statements are late, unspecific and unhelpful. It has been argued to me that that is not a reason for not insisting on the provision of defence statements, and that the obligation to provide them could be more rigorously enforced. Experience suggests, however, that it would be difficult to enforce a requirement without either causing delay, or prejudicing a legitimate defence or both. In Scotland there are well-established rules defining the cases in which notice of a special defence has to be given. If it is necessary for the defence to apply to the court for additional disclosure, as discussed later, it will be necessary for them to explain the reasons for the request. I have not been convinced that a general requirement for a defence statement would give any significant additional benefit, to justify the additional work and cost which would be generated.
7.9 A system of schedules of material in solemn cases should be introduced, along the lines of the system in England and Wales.
7.10 The legislation or the statutory code of practice should explicitly place on the Crown a responsibility to review disclosure decisions in the light of any new information provided by the defence.
7.11 The code of practice should set out a standard recommended form for a defence statement for this purpose.
7.12 Again, I make further recommendations about police training and other matters necessary for the implementation of the duty of disclosure in Part III.