9. Principles for summary cases
9.1 It is just as necessary to ensure fairness in summary trials as it is in solemn proceedings. The penalties imposed in summary proceedings can be severe, and, apart from the actual penalty imposed, an adverse verdict in a summary trial can have a devastating effect on the accused. Some summary trials involve difficult and complex issues of fact and law. In any event, the requirements of Article 6 apply to every level of criminal trial.
9.2 On the other hand, many summary prosecutions are concerned with minor offences involving quite straightforward issues and limited evidence. Figures published by the Crown Office 18 show that the majority of cases reported for possible summary prosecution are disposed of by a means other than court proceedings, such as a police caution, a fiscal fine or diversion, or because a decision is taken not to prosecute at all. Furthermore, of those cases in which a summary prosecution is brought in the sheriff or district court, many are disposed of by pleas of guilty at a relatively early stage. In these circumstances, it is obvious that to implement a disclosure regime in all summary cases at the same level as is recommended for solemn proceedings would risk creating a great deal of unnecessary work for both police and prosecution, and sometimes also for the defence. In the application of Article 6, it is recognised that the principle of proportionality applies in deciding what measures are necessary to implement the right to a fair trial.
9.3 Nor do I think that the possibility of a different regime for summary proceedings is excluded by the decisions in Sinclair and Holland. It may be the case that some of the observations in the speeches in the Judicial Committee are quite general in their terms and could be read as requiring, for example, the disclosure of all statements of prosecution witnesses. However, those cases were concerned with solemn proceedings and there was no discussion of summary proceedings. I do not think that these observations should be read as applying without qualification to summary proceedings. So far as the disclosure of statements and the application of Article 6 is concerned, it was held in R v Stratford Justices ex parte Imbert  2 Cr. App.276 that in summary proceedings in England and Wales failure to get advance disclosure could not affect the fairness of the proceedings, provided that justices appreciated the need to grant reasonable adjournments in appropriate cases. That was a decision of the Divisional Court, but it has not been challenged in the intervening period, although it should be said that in practice statements have often been provided, following guidelines issued by the Attorney General. I therefore think that it is reasonable to proceed on the basis that a modified or scaled-down system of disclosure may be compliant with Article 6, provided that there are sufficient safeguards to protect the fairness of the trial.
9.4 I also think that a distinction should be preserved between what the police and prosecutors decide to do in the interests of efficiency and good management of prosecutions and what is required by the obligation of disclosure. I do not think that it would be desirable to allow the disclosure obligation to drive investigation and prosecution practice in other respects: for example, I do not think that the police or prosecutors should be put in the position of being obliged to create witness statements which they would not think necessary for their own purposes in order to have something to disclose.
9.5 I have had the opportunity to discuss the needs of summary proceedings with a considerable number of practitioners in those courts, and my impression is that, although there is not complete unanimity, the general view is that what is needed is a simple and reliable regime, coupled with the possibility of applying to the court for assistance where the needs of a particular case make it appropriate to do so.
9.6 I deal in more detail in part III with the practical steps necessary to implement the obligation of disclosure. Of particular importance is the summary of evidence which is part of the standard prosecution report to the procurator fiscal and which is provided to the accused with the complaint. I recommend that certain steps should be taken to improve the reliability of the summary of the evidence and to ensure that it includes mention of any exculpatory material known to the police. That summary should in my view, be sufficient to discharge the prosecutor's duty in the first instance and to enable the defence to give initial advice. If the accused pleads not guilty at the first diet, further information should be provided to the defence, including a provisional list of witnesses and copies of any statements or other material which could undermine the prosecution case or assist the defence. At that point the defence should also be entitled to ask to see information held by the Crown and the police which records what Crown witnesses have said, whether in the form of statements or typed copies of notes.
9.7 From my discussions, it seemed reasonably clear that in general, practitioners would be content with a system along these lines, provided it actually gives them disclosure of anything with exculpatory potential; and adequate notice of the evidence which witnesses were expected to give and the productions or other material, such as CCTV recordings, to be relied on: I consider in detail later how that notice should be given. They would not in general think it necessary to have details of previous convictions or outstanding charges of witnesses. All this, of course, is subject to there being a mechanism by which the defence can ask for such materials in an appropriate case and apply to the court if necessary. I see no reason in principle why those conditions should not be met, and in my view a system of this kind should meet the obligation of disclosure, provided it is operated efficiently.
9.8 I considered whether I should recommend the creation of schedules in summary as in solemn cases. However, in a very great many summary cases, once the material needed for the presentation of the Crown case has been identified and produced, there will not be a great quantity of relevant material left over, and there should be no real problem in deciding what to do with it. In addition, in discussion with practitioners in England, it has been said that the system of schedules probably is operated in the bigger and more serious cases, but that it is doubtful whether it really is operated, at least fully, in more routine cases. Most importantly, summary practitioners in Scotland did not think that it would serve a useful purpose to prepare schedules in the way proposed for solemn cases.
9.9 There are three issues on which I should comment further, the first being the question of statements. I have already indicated that if the matter were free from authority, I would not be inclined to think that statements from every Crown witness required to be produced, even in solemn cases, for the reasons indicated in paragraphs 5.39-41. These considerations seem to me to have still greater force in the summary setting, because what a witness has said on a previous occasion may have been recorded in a number of ways and to a greater or lesser degree of detail. For example, police officers called to a brawl in a crowded pub may have other preoccupations, such as apprehending suspects without giving rise to increased disturbance and renewed violence, and may have to content themselves with one or two words scribbled in a notebook as a "statement". I therefore think that the duty of disclosure does not require the creation and disclosure of formal statements of every prosecution witness in every summary prosecution where there is a plea of not guilty, let alone in the much greater number of cases which the police report to the procurator fiscal. It should, in my view, be quite sufficient to protect the fairness of the trial if the defence is entitled to ask for either copies of, or an opportunity to inspect, records of what has been said by the witnesses whom the Crown propose to use, which the Crown and the police have, in the form in which they already exist, that is, as full statements or copies of notes. I comment further on this in chapter 13. I appreciate that there may be pragmatic reasons for making wider use of disclosure of statements but in this report I am concerned only with what the duty of disclosure requires.
9.10 The second issue concerns reasonable lines of inquiry. The suggestion has repeatedly been made, in summary as in solemn proceedings, that the level of remuneration available to the defence is not sufficient to enable them to carry out their own investigations, to take witness statements or to look for witnesses not already identified to them. I am not in a position to reach a definite conclusion about the justice of such complaints. I would only observe that it is virtually the unanimous view of sheriffs to whom I have spoken that the level of defence preparation has fallen very significantly in recent years and particularly since the introduction of block fees. The relevance for this review is that it seems to me to be inevitable that a greater onus will be thrown on the police and prosecutors to ensure that sufficient efforts have been made to look for and bring forward potentially exculpatory material which they hold. However, this does not amount to a responsibility to conduct further investigations requested by the defence, unless the Crown and the police themselves consider it "reasonable" to do so. Equally, a greater onus may be thrown on the court to ensure that the proceedings, taken as a whole, are fair.
9.11 The third issue concerns PII and the redaction of sensitive material. The feeling among many practitioners and sheriffs appears to be that this issue should arise very rarely, if ever, in summary proceedings. I am less confident about that. Issues of national security and the like may only arise very infrequently, and one would expect that the Crown would normally chose not to proceed with a summary case rather than become involved in issues of disclosure and PII in it. However issues of sensitivity in regard to the personal history of witnesses may well arise frequently in summary cases, for example in domestic violence cases. It has to be borne in mind that there is increasing pressure to ensure that the privacy of complainers and witnesses is respected. It follows that the arrangements for PII applications must be available in the summary courts.
9.12 Legislation should allow for the use of Public Interest Immunity applications in summary cases as in solemn; but there should be no requirement for the production of schedules in summary cases. (Further recommendations on summary cases are found in chapter 13.)