Lord Coulsfield's analysis and recommendation: 5.39 The effect of Sinclair is to require production and disclosure of all statements of persons whom the Crown intend to call as witnesses. That, I think, does have to be taken as a fixed requirement in solemn cases, although if the matter were free from direct authority, I would be inclined to suggest that in most cases there are a number of witnesses whose evidence is not central and that in such cases a summary or brief indication of the nature of the evidence would be amply sufficient. 9.9 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 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. ES20. In HMA v B [2006] SCCR 692, Lord Hardie made some comments which might be taken as going further than Sinclair. On one reading, these could be taken to mean that all statements in the possession of the prosecuting authorities should be disclosed, relevant or irrelevant, material or immaterial. If that is the meaning intended, it seems to me that it goes much too far, and is not justified by the requirement of a fair trial. R3. It should be made clear in any legislation that the rule that what has to be disclosed is relevant and material information applies to statements as well as any other material. |