Lord Coulsfield's analysis and recommendation: 13.1 Recently, as part of the summary justice reform programme, the Lord Advocate has announced the Crown's intention to issue a summary of evidence with the complaint in all summary cases. 13.2 I see this as a very significant development. It seems to me that the practice of providing a summary of evidence at the earliest possible stage is right in principle and should be welcomed and built upon. Two important questions follow: How can it be ensured that the summaries provided are fair, complete and reliable? and What additional disclosure would then need to be made to the defence following a plea of not guilty? How can it be ensured that the summaries provided are fair, complete and reliable? 13.3 I understand that the Lord Advocate's intention is that summaries of evidence should be derived readily from the report by the police to the procurator fiscal. If the summary is to perform its function, enabling the defence to give early advice to their client and promoting speed and efficiency, [then - ] R31. The summary of evidence to be provided with a summary complaint will require to give a reasonably full account of the evidence available at the time of the police report, including: a. the basis of the case against the accused; b. the main witnesses in the case; what type of notes or statements (if any) has been taken from each, and the main points that each will speak to; c. whether there is CCTV which supports the prosecution case; d. whether forensic information has been recovered and if so whether it has been analysed; and crucially e. whether there is any material evidence or information which would tend to exculpate the accused whether by weakening the Crown case or providing a defence to it, and if so, the nature of this. R32. Amendments should be made to the standard prosecution report template and any other (abbreviated) report templates agreed for use by the Crown and the police, to prompt for this information, and a police officer should be required to confirm the completeness and robustness of the information provided. 13.5 This may represent an expansion of the requirements for the template, but this seems to me to be necessary for the system to work as intended. If the summaries fail to gain credibility as being a reliable and fair source of information for the defence and the accused, then they will fail to achieve the benefits they have been designed to secure. What additional disclosure would then need to be made to the defence following a plea of not guilty? 13.6 The summary, which importantly must include all material evidence or information which would tend to exculpate the accused, should provide the defence with good information about the evidence in the case, sufficient to enable them to give initial advice on their client's plea. However, in the event of a plea of not guilty (or if a case is continued without plea to allow the defence to pursue disclosure issues first), the defence will need the ability to access further information in order to prepare for trial. R33. In summary cases, following a plea of not guilty the defence should continue to receive a provisional list of witnesses covering those the Crown intends to call and any who might be expected to support the defence. It should be possible to provide this considerably faster than the timescale allowed for post-plea disclosure under the existing system. A plea of not guilty should also trigger action by the Crown to disclose, prior to the Intermediate Diet, a provisional list of productions - with the ability to inspect any of the productions on request; and all information which meets the McLeod (or statutory) disclosure test if it has not already been provided with the complaint - and this could include any statements taken from witnesses who dispute or doubt the Crown's case. 13.7 In most summary cases, this level of information should be sufficient. However, I am aware that in most summary cases following a plea of not guilty, the Crown's current practice is to disclose also the statements and criminal history records of all Crown witnesses. As I have explained, I consider that this goes beyond the minimum required by Article 6. It should therefore be open to the Crown to decide to what extent to continue these practices for summary cases in the sheriff court and in the district court. 13.9 In cases (if any) in which disclosure of Crown witness statements is not provided following a plea of not guilty, it would need to be possible for the defence to request further details of notes or statements recorded from witnesses. Although I see nothing in the law on summary cases which obliges the Crown and police to provide these as well as the summary of evidence, it might in practice help to remove doubt and uncertainty if they complied with these requests and provided such statements which already existed. Thus for civilian witnesses, and occasionally where police witnesses have recorded their observations in writing, the defence should be entitled to ask for copies of text already recorded, for example the notes from police officers' notebooks. Such requests should initially be made informally to the Crown, with an explanation of why the greater detail may be important for preparation of the defence. I would encourage the Crown to be as open as possible when responding to such requests, even when there is no legal requirement to disclose. Over time, it could then be that confidence in the summaries of evidence grew to the point where such requests were made less frequently. |