Lord Coulsfield's analysis and recommendations: 5.45 A similar issue arises in relation to the previous convictions and outstanding charges of witnesses. There can be no doubt, now, that in solemn cases the ordinary rule is that convictions and outstanding charges should be disclosed. There is however an outstanding question as to whether there are any exceptions to that rule. There may be cases in which a conviction is so old or so trivial or so unrelated to the sort of issue which arises in the prosecution that it could not reasonably be regarded as of any value to the defence. That issue arose in McGhee v HMA but has not been resolved in that case. Again, I find it difficult to see any logical reason why the rule that it is material matters which have to be disclosed should not apply to previous convictions and outstanding charges, and I recommend that that should also be made clear in any legislation. 18.1 Holland v HMA placed an obligation on the Crown routinely to obtain and disclose all previous convictions and outstanding charges for those witnesses that the Crown intends to call at trial. As I explained earlier, in my view this does not necessarily apply to summary cases; even for solemn cases the extent of the obligation is not entirely clear, and I believe that an interpretation which required disclosure of these even when they could have no impact on the case would risk being in breach of Article 8. Having spoken to a number of practitioners and taken into consideration the rights of victims and witnesses during the course of the review, I recommend the system set out below. R4. The rule that it is material matters which have to be disclosed should also apply to previous convictions and outstanding charges, and that should also be made clear in any legislation. R40. In both solemn and summary cases, the Crown should obtain criminal history records for all witnesses whom they intend to call at trial. R41. In solemn cases, the Crown should then apply the McLeod (or statutory) disclosure test to each of these records, with only those which may be relevant being disclosed. 18.5 In summary cases, the defence should be entitled to receive the same information on request. However, in many summary cases the defence see no need to consider the previous criminal history records of Crown witnesses, and it would therefore be a waste of effort to disclose them routinely. R42. For summary cases, disclosure of Criminal History information should only be made if it is requested. However, the Crown should still be required to obtain the information, partly for its own purposes, and partly to avoid delays in the event that such a request is made. |